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Friday, March 03, 2006 

Clarifying Court Napping

This post by Howard Bashman at How Appealing has prompted me to expand on this issue. Bashman thinks that the reaction to Justice Ginsburg's 15 minute nap during the Texas redistricting case is overblown...
In any event, if Chief Justice William H. Rehnquist during his final illness was able to participate in the decision of cases argued while he was not on the bench by reading the transcripts, I am confident that so can anyone who happens to doze or daydream.
From a technical standpoint, a Justice sleeping during oral argument isn't a big deal (The rudeness of sleeping is another question). It's very rare that oral arguments change how they feel about the case. Before argument, they have all read the pleadings and the other relevant case information. That's really all that you need to know.

Pop culture has made people think that lawyers are just great speechmakers. Actually, the bulk of a lawyer's work involves writing. The real persuasion is in what you submit to the Court in writing. Oral argument lets the Justices clear up any ambiguity or questions that they have after reading the briefs. It lets them test how far the parties' new legal standards actually go. It reminds me a lot of how law school classes are run. That might be why former law professors like Justice Breyer and Justice Scalia are so talkative during oral argument. Breyer especially loves asking incredibly long winded, complex questions. If you haven't heard an oral argument yet, listen to one of (or at least part of) these podcasts. They are occasionally very entertaining.

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