On November 29, 2006, Jim Milkey and his opposing counsel, Deputy Solicitor General Gregory Garre, woke early.
Milkey was staying at a Holiday Inn less than two blocks from a homeless shelter not too far from the Capitol — the Commonwealth of Massachusetts has a limited daily allowance for reimbursable travel expenses. Garre was at his home in northern Virginia, where he lived with his wife and daughter, who had celebrated her first birthday only a few weeks before. Both men followed the same time-tested ritual for “argument day.” They took especially long hot showers. And in the shower, each one practiced his oral argument out loud one last time.1
Moses Humes Jr., the assistant supervisor of the Marshal’s Aides, arrived at the Court well before either one of them. Humes had joined the Marshal’s Office in 1999, after a long career in the military. He first visited the Court in 1993, when Justice Thurgood Marshall had been lying in repose in the Great Hall, never dreaming he would one day work there. But after several decades of service in the Air Force and Army — as an administrative assistant from 1956 to 1960 and then as a medical specialist from 1977 to 1999 — he had returned to the Court at sixty to report for his new line of duty.2
Humes was still military fit, and he lit up rooms with his brilliant smile and vibrant ring of white hair. He was beloved at the Court. On argument days, it was Humes’s job to ensure that the Supreme Court courtroom was ready by 10 a.m., when the arguments would begin.
Those employed at the Court take enormous pride in their jobs.3 The image the Court strives to portray to the outside world — that of an institution that must be scrupulously fair, careful, and highly professional — is an essential ingredient in the success of a legal institution that possesses authority only so long as the other two branches of government and the general public accept its judgment. With no formal power to enforce its rulings, the Court must cultivate power through its prestige.
The only chief justice to have served as president of the United States, William Howard Taft, understood this basic truth. That is why Chief Justice Taft insisted that the Court move out of the Capitol Building, where it had occupied space lent to it by the Senate (at one point the justices were relegated to the Senate chamber basement) and where the justices had sat since the early 19th century. How could a coequal branch of government be taken seriously if it was conducting its work in another branch’s building and if, when space got tight, the justices were literally under the feet of the members of that other branch? So, wielding the persuasive powers of a former president, Taft in 1929 (just before the Great Depression) secured the funding from Congress necessary to construct a truly magnificent building for the Supreme Court. Both its distinct location and its powerful design projected the authority of an independent judiciary. The contrast between the Court’s old quarters and its new home, completed in 1935, five years after Taft’s death in 1930,4 was so great that several justices initially balked at moving in. They said they would feel like “nine black beetles” moving into the ancient Egyptian Temple of Karnak and mockingly asked whether they would need to ride elephants to work every day. But there was a serious side to their jokes, because Taft’s makeover of the Court building, initially championed by the architect Cass Gilbert, was designed in part to make everyone, including the justices themselves, appreciate the importance of the Court’s work.5
By the morning of the Massachusetts v. EPA argument seventy years later, the justices had become accustomed to the grandeur of their quarters. They looked the part in their deliberately austere black robes, designed to underscore their objective neutrality. It is an image that, to their dismay, contrasts sharply with how members of the public have increasingly begun to perceive them based on their voting record in many of the Court’s highest-profile cases — as political partisans expressing the policy preferences of the president who nominated them. Ensuring that the Court presents itself to the public in a manner consistent with its self-image of rigorous neutrality was a responsibility that Humes and the Marshal’s Aides he supervised took seriously. Every detail has to underscore the rigor and exactitude of the Court’s work, its probity and lack of bias.
All nine black leather chairs — each with a justice’s name engraved on it — must be in their proper places behind the bench where the chief justice and the eight associate justices sit, positioned equidistant from each other and with the back of each chair set at the same angle and height. By each justice’s side is a green porcelain spittoon, which (happily) is no longer used for its original purpose and functions instead as a wastepaper basket.6
One by one, as he had long been accustomed to doing, Humes arranged all nine black chairs and green spittoons. Then, assisted by more junior Marshal’s Aides, Humes opened a small wooden dresser behind the bench, carefully removed a tray holding nine pewter mugs, and placed each mug at its proper location.7 The name of the justice is engraved on the mug followed by the name of the justice they replaced, going back in time, reminding each justice of his or her own distinct lineage. Because pewter is a soft metal, the older names can be hard to decipher, which discourages the mugs’ frequent washing. In their own simple way, the mugs remind the justices of the historic but ultimately temporary role they each serve as a member of the Court; their name will not be the last name on the mug, and it will disappear over time.
Finally, Humes turned his attention to the two tables where the advocates sit before they rise to the lectern and present their oral arguments. Pads of paper, water pitchers, and water glasses must be available and properly positioned on each table. Four handcrafted writing quills are also laid out, precisely positioned, and configured. A small piece of paper, no bigger than an index card, offers a seating chart, indicating where each justice, by name, sits on the bench.8
For the past seven years, Humes had repeated this ritual before every argument day — now about forty a year — as Marshal’s Aides had done for more than a century, since the appointment of the first marshal in 1867 charged with providing security for the building and the justices, safeguarding all Court property, and attending all of the Court sessions. When Jim Milkey and Greg Garre reached the courtroom several hours later, everything had been set out perfectly. Humes’s job was done.
“Make Me Look Like the Biggest Asshole in the World”
As Milkey passed by the Court’s famous façade and entered the Maryland Avenue side entrance, the day’s unseasonable warmth — temperatures would reach 62 degrees — seemed a good omen, a reminder, even if wholly unscientific, that global warming and climate change were real. Milkey made his way through the first set of security scanners by the entrance and idled for a bit next to a larger-than-life-size bronze statue of Chief Justice John Marshall, while waiting for a member of the Marshal’s Office to escort him upstairs. A self-described “cheapskate,” Milkey proudly wore a suit he had bought at Costco, which he also declared to be a “good luck charm.” For good measure, he had brought two further good luck charms — two stones, one black and the other pink — lodged in the suit’s pocket. The stones had been given to him by one of his co-counsel from the Massachusetts Attorney General’s Office; and although Milkey swore that he didn’t believe in that kind of thing, he thought, “Why not take a chance?”9
The Sierra Club’s David Bookbinder, champion of a failed effort to block Milkey from arguing the case that morning, approached him by the Marshall statue. No doubt seeking to inspire, Bookbinder came up with a curiously backhanded compliment. “Jim,” he said, “your job today is to make me look like the biggest asshole in the world.”10 Milkey did not respond. He didn’t even blink. He was as motionless and dispassionate as the statue he stood next to. He was, he later said, completely “in the zone.”11
Nor did he react to or even later recall the woman in her early fifties, in a dark suit, who quietly approached him, shook his hand, and stated simply, “May the best arguments win.” Unbeknownst to Milkey, she was one of the many career attorneys who had worked on the EPA opinion denying Mendelson’s petition several years before. And like many EPA career attorneys, she was privately rooting for Massachusetts to win on the question of whether greenhouse gases were air pollutants.12
Her hopes might have dimmed on close appraisal of Milkey. He had slept so little in the two weeks before that his wife, Cathie, told him he “looked gray.” She was referring to the pallor of his skin, not the color of his hair. Neither Cathie nor their two young teenage sons felt like they had seen him for weeks, if not months, even when he was nominally at home. The case had consumed all of his time and energy, leaving no room for anything else.13
A few minutes later, escorted by the deputy clerk of the Court, Milkey entered the courtroom after first briefly meeting with William Suter, the clerk of the Court, to go over morning logistics. Milkey had been in the courtroom before but never to deliver an oral argument. The room itself is massive: 83 by 91 feet with 44-foot-tall ceilings, its perimeter marked by twenty-four columns of Siena marble. The walls are of ivory vein marble from Spain, and the floor borders are Italian and African marble. The courtroom had been built at the heart of the Great Depression, but ironically that had been a boon for the Court because Congress had authorized $9,740,000 for the new building’s construction just before the 1929 stock market crash, which had significantly lowered the actual construction cost. As a result, there was ample money available to construct a building of exceptional beauty — and, when completed, the Court was still under budget and returned money to the U.S. Treasury.14
High above the bench where the Justices sit, a newcomer could spot a series of four 40-foot-long Spanish marble friezes — reportedly from a quarry near Monovar in the Province of Alicante15 — each one underscoring the sanctity of the rule of law. Directly above the bench on the east wall are two glowering bare-chested figures in Roman togas representing the “Majesty of Law” and the “Power of Government.” They sit side by side, separated by a tablet with Roman numerals I through X, representing the Constitution’s Bill of Rights. To their left and right are figures representing “The Defense of Human Rights and the Protection of Innocence,” and the “Safeguard of the Liberties and Rights of the People in their Pursuit of Happiness.” On the frieze immediately behind them, an American bald eagle defiantly spreads its wings.16
For lawyers, a Supreme Court argument is an advocate’s grandest stage — an opportunity to join the historic ranks of Daniel Webster, Henry Clay, and Thurgood Marshall who once stood, like them, at the lectern before the Court.17 But any lawyer about to present oral argument before the justices who mistakes himself for the equivalent of the Olympic athlete before a contest quickly discovers that the more apt analogy is that of an untrained bestari fighting wild animals in the Colosseum in Rome.
The justices’ barrage of demanding, wide-ranging, and penetrating questions is a clear reflection of their high expectations of the counsel who appear before them. For anyone unprepared or unable to answer the justices’ questions, there is no place to hide. Any weaknesses in their arguments will quickly be exposed and their proffered reasoning shredded. The unrelenting intensity of questioning has caused some advocates to lose their breath or even faint dead away. In trying to defend President Franklin Delano Roosevelt’s New Deal legislation, U.S. Solicitor General Stanley Reed passed out under a torrent of questions unleashed by the justices, led by Felix Frankfurter. An attorney once fainted in the exact same spot where his father had fainted decades earlier.18
When Milkey was ushered in, the courtroom was quickly filling up to capacity. Everyone knew that Massachusetts was a big case, by some accounts the most significant environmental case ever heard by the Supreme Court. Members of the public and of interest groups on all sides of the climate issue — even attorneys who had worked on the case — had camped out overnight on the sidewalk in front of the Court to secure one of the 250 coveted seats. Anyone who made the mistake of arriving after 6 a.m. was far too late. At best they would be relegated to the “three-minute line” at the very back of the courtroom, where a dozen or so people were allowed to watch the proceedings for approximately three minutes before being escorted out and replaced by the next group.
Also quickly filling up to capacity were the eighty seats for members of the Supreme Court Bar, at the front of the courtroom immediately behind the counsel’s table, separated from the public section by a bronze railing. Some of the industry lawyers who had come that morning could bill $500 or more per hour for the time they spent in line (beginning at 6 a.m.) to attend the argument. Anyone showing up at the Bar line after 7 a.m. was too late for a courtroom seat, and would be shunted off to a room reserved exclusively for members of the Bar where they could listen to a live audio feed.
To the far left of the bench is the area reserved for the national news media, and it, too, was filled to capacity — seventy people can just about squeeze in, though anyone in the back will have an obstructed view. The seats are assigned by seniority, so veteran Supreme Court reporters like Linda Greenhouse of the New York Times, Robert Barnes of the Washington Post, and Nina Totenberg of National Public Radio had their seats of honor up front. They surveyed the scene, scanning the crowd for anyone who might be worth following up with later.
By 9:59 a.m., only nine seats remained empty. Unbeknownst to those nervously awaiting their appearance, the nine justices were already in the courtroom, hidden from view by 26-foot-tall, dark red, heavy velvet curtains trimmed in gold immediately behind the bench. Several likely joked quietly about the unseasonably warm weather outside. Then, each justice, in a long-standing tradition established in the late nineteenth century by Chief Justice Melville Fuller, shook the hand of the other eight. Fuller became chief in 1888 at a time when the Court was reportedly populated by justices who were highly individualistic and prideful, and the handshake was one of several ways that Fuller was credited with avoiding acrimony and rifts within the Court.19
At precisely 10 a.m. — marked by a final click of the minute hand on a large bronze clock designed, like the building itself, by Cass Gilbert and located directly above the bench — a small chime sounded in the already hushed courtroom. Marshal Pamela Talkin banged her gavel, and all nine justices emerged simultaneously from three spots behind the curtains. Everyone in the courtroom rose to show their respect.
Harkening back to the Anglo-Norman word “to hear,” the marshal announced: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting.”
The Court was now in session.
Now in his second year on the job, Chief Justice John G. Roberts Jr. took his seat in the middle of the bench. Only the 17th person to serve as chief justice of the United States, Roberts was a youthful 50 years old at the time of his appointment, the youngest chief justice since John Adams appointed 45-year-old John Marshall to the Court in 1801. Roberts had a four-year-old son and a five-year-old daughter — the youngest children of a chief justice since Oliver Ellsworth’s appointment in 1796 — prompting the chief’s security detail to purchase two car seats at a local warehouse toy store for the large black SUV they used to transport him from his home in suburban Maryland — a perk Chief Justice Ellsworth had not enjoyed.
Roberts had originally been nominated by President George W. Bush in July 2005 to take Justice Sandra Day O’Connor’s seat on the bench after she announced her retirement earlier that month. But three days before Roberts’s scheduled Senate confirmation hearing, Chief Justice William Rehnquist died — and President Bush nominated Roberts to the chief justice slot instead. Roberts had served as a judge on the D.C. Circuit only a couple of years at the time of his nomination, but he had impeccable professional and political credentials and seemed to be on his way to easy confirmation for O’Connor’s slot when Bush made the switch because Roberts had so impressed Bush with his leadership potential.
Roberts had graduated at the top of his class at both Harvard College and Harvard Law School, had served as clerk on the U.S. Supreme Court, and had been widely considered to be one of the nation’s most highly gifted Supreme Court advocates. He had been a political appointee in the White House and Justice Department during the administrations of Presidents Ronald Reagan and George H. W. Bush, but he did not have a reputation as being highly ideological or politically partisan. His strong performance during his confirmation hearings, in which he impressed the nation with his intelligence, charm, and wit, led to easy confirmation by a lopsided Senate majority in otherwise sharply divided political times. During those hearings, he promised the nation that as chief justice he would set a tone of judicial modesty, encouraging unanimity and less divisiveness in voting and more narrowly drawn rulings. At the time of Massachusetts, the chief was sufficiently new on the bench that his promise had not yet been tested.
Seating is determined strictly by seniority. To the chief justice’s immediate right that morning was Associate Justice John Paul Stevens, who had served on the Court for 31 years. To Roberts’s immediate left sat Antonin Scalia, who had served on the Court for 20 years. Both had been nominated by Republican presidents — Stevens by President Gerald Ford and Scalia by President Reagan — and both had been confirmed by the Senate by identical votes of 98–0. But once on the bench, the two justices voted very differently in the most high-profile cases, with Justice Stevens increasingly voting in ways characterized as liberal and Justice Scalia as a stalwart conservative. Their personalities on the bench could also hardly have been more different. While each was capable of unraveling an advocate’s arguments, the midwesterner Stevens was invariably polite and succinct in his questions, routinely asking the advocate for permission to interrupt. Hailing from Queens, Scalia, by contrast, captivated the courtroom with his loud and demanding voice and seemingly relished the opportunity to engage in verbal battle with those arguing before him.
The remaining six justices sat alternating to the Chief’s right and left in decreasing order of seniority: Justices Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito, who sat to the Chief’s far left. Justices Kennedy, Thomas, Souter, and Alito had each been nominated by Republican presidents — Reagan, George H. W. Bush, and George W. Bush. Of the four, only Justices Thomas and Alito had proven to be as conservative on the bench as their billing when nominated. Thomas enraged liberals because he had replaced Thurgood Marshall and consistently voted in ways wholly antithetical to Marshall, who was a liberal icon. Alito was still fairly new on the Court, having joined the Court only a few months after Roberts, and his principal qualification was that his sixteen years of rulings on the federal appellate court in Philadelphia left no doubt that he would be a reliable, conservative vote. Thomas’s only surprise on the bench had been his policy of almost never asking questions during oral argument, even though his opinion writing made it clear he was fully engaged in the cases and had strongly held views. As the most junior justice, Alito was asking relatively few questions, but what was striking was the sometimes almost grouchy way he posed them. Unlike someone like Scalia, Alito rarely seemed to enjoy the arguments, and he lacked Stevens’s politeness and polish.
Kennedy and Souter were the reason Alito’s apparent reliability as a conservative vote had been so important to Republicans. When he was nominated by President George H. W. Bush in 1990, Souter was a complete unknown nationally, having served on the federal appeals court in Boston for less than five months after seven years on the New Hampshire Supreme Court. His lack of a paper trail had been considered an asset to secure Senate confirmation, as the Democrats were in the majority — the president’s chief of staff reportedly privately advised worried Republicans that Souter would be a “home run” for placing a conservative on the bench. But once on the Court, Souter tended to vote so frequently like Justice William Brennan, the liberal justice he had replaced, that “No More Souters” became a battle cry for Republicans.20
Although not as liberal as Souter, Kennedy also had disappointed conservatives. He had generally voted in ways favored by conservatives, but he also harbored grandiose views of the role of the Su-preme Court in advancing justice, which prompted him occasionally to vote for positions they deplored. Siding with Souter and the most liberal justices on the Court, Kennedy had voted against over-ruling the Court’s abortion decision in Roe v. Wade,21 in favor of striking down as unconstitutional a Texas law outlawing homosexual activity,22 and against imposing the death penalty on offenders who were juveniles or had intellectual disabilities.23
Both Kennedy and Souter could be active questioners at oral argument in cases that interested them, but they had very different styles. Sounding very much like the constitutional law professor he had once been, Kennedy was more likely to pontificate about his own views than to pose a series of questions designed to make a point. Souter was the opposite. He would ask a series of a questions with a threshold politeness that could be misleading. If he concluded that the attorney’s answers were evasive, Souter could quickly become tenacious and demanding.
President Bill Clinton had nominated Ginsburg and Breyer to the Court during his first two years in office. Both were easily confirmed, by votes of 96–3 and 89–6, because they were largely considered to be judicial moderates despite their obvious liberal leanings. Ginsburg, of course, had been a pathbreaking champion of women’s rights as a legal advocate, including successfully arguing six cases before the Supreme Court. But while a judge on the D.C. Circuit, she enjoyed a reputation as a fair-minded stickler for legal rules who did not have an ideological or political agenda. She received strong support from the business community. The same was true for Breyer. Formerly a professor at Harvard Law School, he had previously worked for the Senate Judiciary Committee, where he had impressed Democratic and Republican leaders with his evenhandedness and dislike for excessive federal regulation. While a judge on the U.S. Court of Appeals for the First Circuit, Breyer similarly had a moderate judicial track record. But once on the Court, Ginsburg and Breyer both had increasingly become champions, by their votes and in their written opinions, of outcomes favored by liberals, especially Ginsburg on matters touching on gender equality.
They could both be active on the bench in cases that interested them. Breyer was infamous for his long-winded questions and Ginsburg for both her quiet voice and her extraordinary command of legal procedure. But everyone also knew her voice remained quiet only in terms of its decibel level.
Before the argument, Milkey had of course studied all the backgrounds and predilections of the justices, and what immediately struck him as they entered the courtroom was how physically close they were to where the lawyers sat and stood to argue. Closer than in any courtroom he had ever been in. It was surprising, given the room’s grandeur and solemnity.
Seventy-four inches is all that would separate the lectern behind which Milkey would stand and the mahogany bench behind which Chief Justice Roberts sat, flanked by four justices on either side.24 As “admonished” by the marshal in her opening declaration, lawyers who are about to present oral argument before the Supreme Court do in fact “draw near.”
The surprisingly intimate setting — the justices and counsel are almost close enough to reach out and touch hands — might seem to invite an informal conversation. But Milkey was not about to forget the formality of the setting, or the enormousness of the stakes. The bench’s apparent friendly embrace could quickly become suffocating.
The advocate’s proximity to the bench presents an unexpected challenge. The justices are so close to the lectern that the advocate cannot see all nine of them at the same time. Arguing counsel must turn from side to side to see the entire bench. But because of the acoustics of the room, the lawyer hears the questions being posed by the justices only from speakers high above the bench. As a result, the counsel cannot identify the speaker by relying on the kinds of visual or auditory cues that one subconsciously assumes will be available when talking to another person at such close proximity. First-time advocates, unprepared for this acoustical trick, can quickly become confused during argument as they hear a question but cannot immediately identify which justice has asked it. Sometimes the justice asking the question will wave a hand to signal to the lawyer or even say out loud: “I’m over here.” But sometimes they don’t.
Seasoned advocates, aware of the problem, prepare by memorizing the voices of the justices ahead of time, training themselves to listen for Souter’s aristocratic Yankee dialect with its muted “r’s”; Ginsburg’s quiet, classic Brooklyn accent; Scalia’s unmistakable booming voice from Queens; or the chief justice’s flat vowels, suggestive of his Indiana roots. More-experienced advocates also know to scan the bench for the subtle physical sign that a justice is about to ask a question: each one must lean forward ever so slightly to push the button on the microphone in front of them.
As Milkey surveyed the bench in those few seconds between the time the justices entered and the moment the argument would begin, Justice William J. Brennan Jr.’s famous “Rule of Five” hung in the air. Brennan had served on the Court from 1956 to 1990, and according to the lore of his chambers he would gather his new law clerks in his office soon after their arrival and quiz them by asking, “What is the most important rule of constitutional law?” Determined to impress their new boss, the young clerks would compete over the relative importance of such fundamental constitutional guarantees as due process, equal protection, free speech, the right to vote, the privilege against self-incrimination, or the prohibition on cruel and unusual punishment.
Justice Brennan would wait for each one to express a view before calling them all up short and declaring it was the rule of five. Brennan would then explain to his inevitably perplexed young charges that the most important rule of constitutional law, at least for their purposes over the course of the year in his chambers, was that it took five votes to secure the majority needed for an opinion of the Court.25 Milkey knew that he needed five justices to win his case — and he did not expect that securing that razor-thin majority would come easy. At least four justices the previous June had voted to grant review, but justices who vote in favor of granting review are saying by their vote only that the legal issues presented in the case are sufficiently important to warrant the Court’s attention, nothing more. Moreover, because the identities of the justices that vote to grant review are not publicly disclosed, Milkey could not safely assume that the justices who had voted in favor of review in Massachusetts had done so because they thought his legal arguments had merit. The four could have included justices who saw the case as an opportunity to rule against environmental petitioners’ standing to bring this kind of lawsuit.
Milkey had to put those dark thoughts aside and focus on the task at hand: framing his argument and answering the questions as best he could to win the case. Justice Kennedy, seated to the immediate left of the chief justice, would likely cast the key vote. And getting Kennedy’s vote, Milkey had concluded, would turn on issues utterly unrelated to greenhouse gases. His argument that carbon dioxide emissions were air pollutants, Milkey thought, might well have traction with a large number of justices, but first he would have to overcome the jurisdictional hurdle of persuading a majority of the justices that Massachusetts and the other petitioners possessed standing to bring the lawsuit forward in the first place. On that issue, Kennedy was clearly the wild card of the nine.
Notwithstanding the Court’s effort to promote the image of nine neutral judges, Milkey knew, based on each Justice’s track record of voting, that all nine votes were not equally in play. The competing legal arguments made by the opposing counsel were likely to be received differently by the more conservative justices than they would be by the more liberal justices. Those factors are relevant in far fewer cases before the Court than members of the public assume, but Massachusetts was a case where the conservative/liberal divide was more relevant than in most.
Chief Justice Roberts and Justices Scalia, Thomas, and Alito were almost certainly opposed to the petitioners’ argument that they had the standing to bring their lawsuit against EPA, and Milkey had reason to hope that Justices Stevens, Souter, Ginsburg, and Breyer would be more favorably inclined. The contrasting positions of those eight justices were fairly predictable, based on both their past votes and the tendency of conservative justices to apply standing requirements more strictly than liberal justices. Kennedy was the ball-game — or, perhaps more accurately, Kennedy would determine whether Massachusetts was eligible to play the game at all.
In this respect, Massachusetts was similar to all other environmental cases that had been decided since Kennedy had joined the Court two decades earlier. In all but one of those cases, Justice Kennedy had sided with the majority. And in many of those instances, he had been the deciding fifth vote. At least in environmental law, but not only then, the way Kennedy went was the way of the Court. That is why some jokingly referred to the Supreme Court as the “Kennedy Court” rather than, as is traditionally done, by the name of the chief justice.
But much as he might like to, Milkey knew he could not focus all of his attention on Kennedy. He had to answer every question he was asked, however challenging or unfair its premise. A lawyer arguing a Supreme Court case does not have the luxury of ignoring a particular justice whose vote he knows is a lost cause. If Milkey had the option, he would gleefully agree to give up Justice Scalia’s vote in exchange for his silence during the oral argument. But to persuade Justice Kennedy, he would have to answer successfully the combative questions of the justice he anticipated would be the most hostile: Justice Scalia.
Yet what Milkey couldn’t do with his words, he could accomplish to a certain extent with his eyes. An outstanding oral advocate does not communicate by words alone. Counsel is also simultaneously sending messages to the justices through eye contact, or the lack thereof.
It’s a trick every new teacher quickly learns in the classroom. As soon as the students anticipate that the teacher is about to ask a question, what happens? Everyone in the room immediately looks down at their desks, suddenly discovering something totally fascinating to examine on the desk. Why? Because it’s a lot harder to call on someone who is not looking at you.
That same dynamic is at play in Supreme Court advocacy, and the best advocates exploit it to their full advantage. An advocate must answer any question any justice asks, no matter how hostile or potentially disruptive. But in addition to spending more or less time answering any given question, a lawyer may look more or less directly at certain justices. After responding to a question from Justice Scalia, Milkey had been instructed to pivot immediately to a less hostile corner of the bench. By shifting his gaze, Milkey was in effect inviting a new intervention, making it a tad harder for Scalia to ask a follow-up question and a tad easier for a friendlier justice to jump in, or at least one, like Kennedy, whose vote was more likely in play.
At 10:02 the chief justice announced that the Court would “hear argument first today in 05-1120, Massachusetts versus Environmental Protection Agency.” That was Milkey’s cue. He rose from his seat and moved to the lectern less than one foot to his right, and said, as so many had before him, “Mr. Chief Justice, and may it please the Court.” TEF
1. Jim Milkey, email message to author, March 8, 2018; Gregory Garre, email message to author, March 9, 2018; Confirmation Hearings on Federal Appointments before the S. Comm. on the Judiciary, 110th Cong. 623 (2008) (statement of Gregory G. Garre, Nominee to be Solicitor General of the United States).
2. Supreme Court Marshal’s Office, email message to author, April 12, 2018.
4. Fred J. Maroon and Suzy Maroon, The Supreme Court of the United States (New York: Thomasson-Grant and Lickle, 1996), 17–33; Supreme Court Historical Society, “Homes of the Court,” https://www.supremecourthistory.org/history-of-the-court/home-of-the-court.
5. Maroon and Maroon, The Supreme Court of the United States, 39; Supreme Court Historical Society, “Homes of the Court.”
6. Supreme Court Marshal’s Office, interview by author and tour of Supreme Court courtroom, April 9, 2018.
9. Jim Milkey, interview by author, July 6, 2018.
10. Jim Milkey, interview by author, February 18, 2015; author, personal recollections from argument morning at the Supreme Court, November 29, 2006.
11. Milkey, interview, July 6, 2018.
12. Former EPA employee, email message to author, June 14, 2018.
13. Milkey, email, March 8, 2018.
14. Supreme Court employee, email message to author, May 4, 2015; Maroon and Maroon, The Supreme Court of the United States, 134; Supreme Court Historical Society, “Homes of the Court”; Supreme Court of the United States, “Supreme Court Building— Building History,” https://www.supremecourt.gov/about/buildinghistory.aspx.
15. Supreme Court employee, email message to author, March 29, 2019.
16. Maroon and Maroon, The Supreme Court of the United States, 134–152; Office of the Curator of the Supreme Court of the United States, “Courtroom Friezes: South and North Walls, Information Sheet,” May 8, 2003, https://www.supremecourt.gov/about/northandsouthwalls.pdf; Office of the Curator of the Supreme Court of the United States, “Courtroom Friezes: East and West Walls, Information Sheet,” October 1, 2010, https://www.supremecourt.gov/about/eastandwestwalls.pdf.
17. David C. Frederick, “Supreme Court Advocacy in the Early Nineteenth Century,” Journal of Supreme Court History 30, no. 1 (March 2005): 1.
18. “Reed in Collapse; AAA Cases Halted,” New York Times, December 11, 1935, 1, 9; John G. Roberts Jr., “Oral Advocacy and the Re-Emergence of a Supreme Court Bar,” Journal of Supreme Court History 30, no. 1 (March 2005): 72–73.
19. Supreme Court of the United States, “The Court and Its Traditions,” https://www.supremecourt.gov/about/traditions.aspx; Willard L. King, “Melville Weston Fuller: ‘The Chief’ and the Giants on the Court,” American Bar Association Journal 36, no. 4 (April 1950): 349.
20. Linda Greenhouse, “David H. Souter: Justice Unbound,” New York Times, May 2, 2009.
21. Planned Parenthood v. Casey, 505 U.S. 883 (1992).
22. Lawrence v. Texas, 539 U.S. 558 (2003).
23. Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005).
24. Supreme Court employee, email, May 4, 2015.
25. Mark Tushnet, “Themes in Warren Court Biographies,” New York University Law Review 70, no. 3 (June 1995): 763.