A recurring dream about Supreme Court oral argument took a sharply uncomfortable turn last night for a law professor who has spent years writing about the Court, producing what may be the most detailed account of podium terror ever committed to a blog post.
When Lead Counsel Steps Down Mid-Supreme Court Oral Argument
The scenario was this: the professor was co-counsel in a case set for argument before the Supreme Court of the United States. The bench looked as it always does. The bar section was smaller than usual. Chief Justice Roberts called the case. Lead counsel turned, said ‘I can’t do it,’ and stepped down.
There was no preparation. There had been no preparation. Someone still had to walk to the podium.
‘Mr. Chief Justice and may it please the Court.’ The mind went blank. The case name was gone. The client’s name was gone. Silence followed, which the author notes ‘has never happened before.’
Then came the first question. By tradition at the Court, the first question in this dream fell to Justice Clarence Thomas. The author could not follow what Thomas was asking, though recognised it as a soft opener intended to help. A glance back at lead counsel produced a shake of the head. The response: ‘We will rely on the submissions in our brief.’ Sit down.
The author calls it ‘a pretty good save.’ Given the circumstances, it is hard to argue otherwise.
Justice Thomas, Questions, and the Court’s Shifting Oral Argument Culture
The detail about Thomas asking the first question carries its own irony. For a decade, from February 2006 to February 2016, Justice Thomas asked no questions at all during oral arguments. By May 2020, he had spoken during just 32 of the roughly 2,400 arguments heard since 1991, according to SCOTUSblog.
That changed when the Court adopted a teleconference format during the COVID-19 pandemic in May 2020, querying each justice in strict order of seniority. Under that structure, Thomas asked 63 questions over two weeks, including 17 in a single day. A justice who had become synonymous with courtroom silence became, briefly, one of its more active voices.
In the dream, Thomas reverts to the older mode: one question, gently pitched, unanswered.
Pierson v. Post and the Professor’s History With Law-School Dreams
The Supreme Court nightmare is not the author’s first law-related dream to reach an audience. An earlier variant involved showing up unprepared on the first day of class as a professor, forced to improvise a lecture on Pierson v. Post. That 1805 decision is generally regarded as the most famous property law case in American legal history. The dispute, which arose from an incident on 10 December 1802 on an uninhabited beach near Southampton, New York, established that merely pursuing a wild animal does not create possession: the animal must be captured or killed.
It is a fitting case to lose in a dream. The rule is simple; explaining it under pressure, apparently, is not.
The archive of law-related dreams runs longer still. Previous instalments have included Justice Elena Kagan shouting at the author, Judge Richard Posner shouting at the author, the Court issuing a cease-and-desist order, Justice Kagan singing a dissent in Shelby County, the Solicitor General receiving an award from the Chief Justice, Justice Thomas attending a book talk, and Justice Stephen Breyer reviewing galleys. The SCOTUSblog community will recognise several of the protagonists.
After the Argument
The dream did not end at the podium. After argument, the author walked down to the Court’s cafeteria, dreading the response. The phone stayed in a pocket. Several people at the Court offered reassurance, pointing out that stepping in at the last moment counted for something.
The author remained mortified.
The Court recurs in sleep as it does in working hours. If there is a next dream, the prudent course would be to have at least skimmed the brief first. Subject to any onward revision of what the subconscious permits, that may be the only practical preparation available.
