Using the Supreme Court as a Prop During Oral Arguments

November 6th, 2013

It’s always a good move for advocates to the Court to use examples the Justices can relate to. But unlike lower courts, demonstrative devices are a big no-no at the lectern. Of course no formal exhibits are allowed, but lawyers are welcome to point out stuff that is in the Court to demonstrate concepts.

For example, today during oral arguments in Town of Greece v. Galloway, the Justices and parties repeatedly referred to the Marshall’s invocation of god before the Court is gaveled into session. As Tony Mauro writes:

Soon, the marshal’s cry became, yet again, a prop in the court’s struggle to strike the right balance between public display of religion and the First Amendment’s command against government establishment of religion. It has universality—invoking God, but in a not-too-sectarian way—that appeals to both sides of the debate.

Just seconds into Wednesday’s argument in Town of Greece v. Galloway, Justice Elena Kagan wondered aloud how it would be if, instead of the marshal’s recitation, Chief Justice John Roberts Jr. had “called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators” and the minister said, “We acknowledge the saving sacrifice of Jesus Christ on the cross.”

Later, Justice Antonin Scalia repeated the marshal’s cry, “God save the United States and this Honorable Court,” and said, “There are many people who don’t believe in God. Why is that okay?” It probably was a rhetorical question; in his other comments Wednesday, Scalia made it clear he’ll support public prayer.

The marshal’s cry was cited in eight briefs in the Town of Greece case, on both sides of the dispute. At issue in the case is the New York town’s practice of allowing mainly Christian ministers to offer prayer at the start of council meetings. Ten decisions by the Supreme Court, going back to 1952’s Zorach v. Clauson, an early school prayer case, also mention it.

I can think of a few other examples of advocates using the Court as a prop.

During the 10 Commandment cases several years ago, advocates often referred to the frieze above the Justices to point out that there was a depiction of the 10 Commandments right above them.

During the oral arguments in Fox v. FCC (the fleeting expletive case), Seth Waxman referred to the fax that there were exposed buttocks right int he Court!

Right now, as — as Mr. Phillips suggested, the commission has pending before it, which it has not denied for years, complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks. It — it has refused to say that “Catch-22″ — it’s “Catch-22″ — right over here, Justice Scalia.


MR. WAXMAN: Well, there’s a bare buttock there, and there’s a bare buttock here. And there may be more that I hadn’t seen. But frankly, I had never focused on it before. But the point -­

JUSTICE SCALIA: Me neither. (Laughter.)

What others?