While Supreme Court justices are often guarded about how they come to their decisions, there are occasions where they are much more transparent. During oral argument, it is not uncommon for justices to bluntly say to an attorney “help me -” followed by a certain request. Instances where justices enlist attorneys’ help during oral argument present circumstances where attorneys may have agency since the justice(s) seek particular information from the specific attorney. As this post will show though, the uses of such requests is quite skewed towards particular justices.
A search of oral argument transcripts between the 1950 and 2015 term compiled 518 uses of the phrase “help me” in 470 cases.
An example of such a usage from the earlier end of this data comes from Justice Frankfurter in the case Rogers v. Richmond (1960) when he stated:
“Mr. Pollak, I don’t want to break in when you get in the mainstream of your argument. But it would help me a great deal when you come to the crux of your argument, you would state exactly what was before the state court when the appeal came through it with reference to the admissibility of the confession of (Inaudible) confessions –”
More recently in the 2012 case Bailey v. United States Justice Scalia asked Supreme Court veteran attorney Kannon Shanmugam:
“Mr. Shanmugam, please help me. I — I don’t understand why — why the Terry stop is at issue, inasmuch as there was not a Terry stop. I mean, what occurred here went well beyond a Terry stop, did it not? So what do you do?”
Focusing on the modern Court, there have been 234 oral arguments where “help me” was used since 1990. Looking at an even more recent cut of time, Justice Breyer used this phrase the most frequently of the justices between 2010 and April of OT 2016 (when Justice Gorsuch joined the Court):
Looking at all of the uses between 2010 and the most recent oral arguments in 2017, we see a large jump in 2017 of the number of oral arguments where this phrase was used.
The justices have used this phrase in as many oral arguments so far this term as they had in any term between 2010 and 2016 and the justices are not even halfway through oral arguments for this term. Why the difference? Justice Gorsuch.
An updated chart that runs through the most recent oral arguments that includes Justice Gorsuch looks like:
Indeed Justice Gorsuch may ask attorneys to “help” him on a more frequent basis than any prior justice in the history of the Court. Justice Gorsuch asked an attorney to “help” him eighteen times in nine arguments so far this term. In fact, the only other time a justice said “help me” during oral argument since Justice Gorsuch joined the Court in April 2017 was Justice Kagan in Carpenter. She was unable to get through this request, however, before Chief Justice Roberts interposed with his own remarks:
Justice Gorsuch has asked attorneys to help him in a wide variety of circumstances – from interpreting statutes to designing particular policy outcomes. When we look at the justices’ uses of “help me” since April 2017, the chart appears as follows:
Obviously, Justice Gorsuch is not shy about asking for attorneys’ assistance in varied circumstances. Moving forward, it will be interesting to see (1) if Justice Gorsuch continues along this path and (2) how responses to these requests translate into Justice Gorsuch’s written opinions.
Below are oral argument snippets from cases this term where Justice Gorsuch asked an attorney to “help” him.
JUSTICE GORSUCH: I have a separate jurisdictional problem that I’m hoping you can help me with and it concerns the COA requirement. And neither side discusses it, but it’s jurisdictional, so I’m — I feel like I should give you a shot at it and you can help me out with it…And that seems odd too, though, because funding requests, attorney fee denials, sanctions, usually are wrapped up in and merged with the final judgment. So long-winded question, but it’s jurisdictional, so — and I thought you
could help me out with that.
JUSTICE GORSUCH: Sure. But you’re appealing the final order in a habeas proceeding, and that’s the language in 2253. So help me out with the language in 2253.
JUSTICE GORSUCH: So help me out with that.
JUSTICE GORSUCH: — with respect to that first “except” clause and also with respect to the “provided” — “involving covered securities” language? Why don’t you help me out with that.
JUSTICE GORSUCH: Help — help me out. How — how —
JUSTICE GORSUCH: Okay. You haven’t helped me out much there. Maybe you can help me with the — the language in — in (c), “involving a covered security.”
JUSTICE GORSUCH: Well, help me — help me out with 316 then if that’s where you are going to go to. Where do you — where do you see the authority for the regulations that the director is proscribed here?
JUSTICE GORSUCH: I’d agree with you that you’ve given great discussion on the standards for showing sufficient grounds to institute a review. I’m not sure, I guess you can help me on how that also includes the authority whether to grant review of this or that claim, the weeding out process.
JUSTICE GORSUCH: Counsel, can you help me —
JUSTICE GORSUCH: You know what, I’m sorry. I’m way over here. I was hoping you could help me with a couple of jurisdictional tangles I’m snarled up in.
The agency acts without the benefit of the notice and comment and is unable to issue a reasoned decision-making, and then we’re supposed to defer to that to resolve this ambiguity? Help me out with that scheme.
And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn’t draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example.
So help me out with that.
JUSTICE GORSUCH: — can you help me out with what happens to the law of preferences under your interpretation?
JUSTICE GORSUCH: Why is your reading that they’re constitutional, if you could help me with that?
And help me understand why this statute is, in fact, jurisdiction stripping without reference to old past laws but after Sebelius, after Arbaugh?
On Twitter: @AdamSFeldman