GoKawiilDuring oral argument last month in Mullin v. Doe, attorney Geoffrey Pipoly said something I won’t repeat to my kids. The remark came when Pipoly, who represents Haitian nationals challenging the Trump administration’s effort to revoke their deportation protections, highlighted President Donald Trump’s past comments on Haiti. The president, Pipoly said, has shown “bare dislike of Haitians” and called Haiti a “shithole country.”
Pipoly was not randomly swearing, of course. He was repeating Trump’s own words. Still, I was intrigued by his decision to say them, especially after Justice Sonia Sotomayor had chosen to say “s-hole country” earlier in the argument when referencing the same quote.
For the rest of the discussion – and for days after it ended – I wondered about the courtroom protocol on swearing and how much of what happens before the justices can be explained by formal courtroom rules. Earlier this week, I finally had time to dig deeper, and discovered the court’s Guide for Counsel, which outlines dos and don’ts for the attorneys who argue before the Supreme Court.
While the guide is meant for people who participate in oral arguments – not those who merely observe them – I found that it serves both audiences well. What’s more, it explains what the court is hoping to accomplish during an argument and gives a sense of how the court sees itself as an institution.
So here’s a brief overview of what I learned from the court’s Guide for Counsel about swearing, taking selfies, and the types of answers the justices like best.
On addressing the justices
Under the present practice, “Mr.” is only used in addressing the Chief Justice. Others are referred to as “Justice Thomas,” “Justice Kagan,” or “Your Honor.” Do not use the title “Judge.” (Guide for Counsel, pg. 5)
Allow me to begin with an obvious point: a Supreme Court argument is not a casual affair. The justices wear black robes, the attorneys are to wear “conservative business dress in traditional dark colors,” and no one is to be referred to by their first name.
In fact, as the Guide for Counsel makes clear, attorneys should only use a few specific titles to refer to the justices: Mr. Chief Justice for Chief Justice John Roberts and “Your Honor” or “Justice [Last Name]” for the rest.
Longtime court followers may recall that it was once common for attorneys to mix up Justices Sandra Day O’Connor and Ruth Bader Ginsburg, the first two women on the court. The guide includes some advice for attorneys who risk making such an error: “If you are in doubt about the name of a Justice who is addressing you, it is better to use ‘Your Honor’ than to address the Justice by another Justice’s name.”
... continue reading