The High Court: Jousting in a Search for Justice

It’s 10 a.m. on a Wednesday, and about 100 tourists and two dozen lawyers have won seats for some of the best theater in town.

To the marshal’s call of “Oyez, oyez, oyez,” the nine justices of the Supreme Court emerge from behind a red curtain and take their seats at the bench. Then the contest begins.

Unlike a typical House or Senate hearing, the justices do not show up to deliver a prepared speech or to ask questions written in advance by staff members. They have come--at least most of them have--to engage in argument. They press the lawyers to explain themselves, pick at any apparent weakness in their cases and dwell on points that might influence a colleague down the bench.

This unusual ritual, known simply as “oral arguments,” represents perhaps the highest form of legal jousting in the land. Some of the nation’s sharpest lawyers battle on this arena, not only to win for their clients but also to shape constitutional law.

For the spectators, the arguments offer a rare glimpse of the justices at work in a forum where their distinct personalities--and peculiarities--are on full display.

Today’s topic: the First Amendment and the free-speech rights of public employees.

Each side in the case will get half an hour and not a second more. Veteran attorneys joke that Chief Justice William H. Rehnquist cuts them off “in the middle of the word yes “ once their time has expired.

From the back of the courtroom, only the tops of the justices’ heads can be seen as they rock in their chairs. But when they lean toward their microphones to speak, their voices resonate through the room, echoing off the high ceiling. It is, in a sense, like being in the chambers of the Wizard of Oz.

First to the lectern this morning is a lawyer for an Illinois hospital that is fighting with a fired nurse.

Cheryl Churchill, the nurse, was dismissed by her supervisor, Cynthia Waters, after she was overheard complaining in the cafeteria about the hospital’s new policy of switching nurses among departments. In her lawsuit, the nurse says the firing violated her free-speech rights, and a U.S. appeals court in Chicago cleared the case for a trial.

But the hospital’s lawyer contends that she was fired for “insubordination,” which is not protected by the First Amendment.

“So she was grousing, and that’s the end of it?” interrupts Justice Ruth Bader Ginsburg.

In her first term, Ginsburg, 60, has joined Justice Antonin Scalia as the court’s most persistent questioner. Both are known as highly intellectual jurists. But they also grew up in Brooklyn, and their questions are characteristically direct and blunt.

“So you say it’s an open-and-shut case?” Ginsburg asks, challenging the hospital’s lawyer.

When the lawyer counters that the court record does not show that the nurse was discussing a public concern--an action that would be protected under the First Amendment--rather than merely griping on the job, Justice David H. Souter moves toward his microphone.

Always courteous and frequently bemused by the lawyerly exchanges, the New Hampshire jurist tends to ask abstract and circuitous questions. There are no sound bites with Souter, 54. But by taking a roundabout course, he often bores in on a key point.

Three years ago, when he first joined the high court, Souter sat silent and stone-faced through most arguments, befitting his image as a reclusive bachelor from rural New England.

In the past year, however, he has emerged as a confident, active interrogator, often joining with Ginsburg to counter a barrage of questions from Scalia.

In this case, he fixes on a key procedural point. The hospital says the suit should be dismissed before the trial. But Souter suggests a trial is needed to determine whether the nurse was speaking about a matter of public concern, such as whether transferred nurses are qualified to work in surgery or obstetrics.

“If she had been allowed to discuss the subject (of her grievance), isn’t it likely the substance of conversation . . . would come out?” he asks.

Sitting next to Souter, Scalia has a pained look on his face. From the bench, Scalia is the court’s wild card. He can be biting, witty, angry. But he is never silent.

If this nurse prevails in the Supreme Court, it will give public employees a First Amendment right to criticize their superiors with impunity. Scalia can restrain himself no longer.

“So every employee has a right to run down the hospital?” Scalia snaps angrily. “So everyone is free to complain to subordinates and create dissatisfaction?”

The hospital lawyer has obviously nailed down one vote--Scalia’s.

When preparing their arguments, the veteran advocates at the Supreme Court often speak of the process as “counting to five.” They know they need to convince at least five justices in order to prevail.

On the bench, the justices are often busy making similar calculations. They say they are never sure how their colleagues will see a case, and on occasion they ask a question not to learn the answer but to sway a wavering vote.

With Scalia, however, there is rarely a doubt about his view.

He frequently attacks lawyers who present a traditionally liberal argument: advocating leniency for a Death Row inmate, for example, or urging the high court to invalidate an abortion restriction.

When a lawyer for the National Organization for Women recently tried to make a case for applying the federal anti-racketeering law to militant abortion protesters, Scalia was relentless. The law speaks of an “enterprise,” suggesting a business group, not an organization of social activists, he said repeatedly.

NOW attorney Fay Clayton stood her ground, noting that the law does not say “business enterprise” or a “commercial enterprise.”

“What do you think it refers to, a 4-H Club?” he asked in a mocking tone.

At other times, Scalia, 57, plays the role of the wise guy. When a government lawyer last month spent five minutes describing the history of the federal mine safety act, Scalia interrupted.

“It is a pretty important piece of legislation, isn’t it?”

“Yes, it is, your honor,” the attorney replied.

“I think we know that,” Scalia said with a hint of smile as he rocked back in his chair.

The lawyer, chastised, moved on to the key issue in the case.

During his early years on the court, Rehnquist played the part now reserved for Scalia, leading the conservative charge in the arguments. These days Rehnquist, as chief justice, plays the role of the enforcer. When attorneys stray too far from the issue at hand, Rehnquist steers them back.

“We granted (agreed to review) a particular question, Mr. Bisbee,” Rehnquist, 69, tells the nurse’s attorney. “You can assume we want to hear an argument on that issue.”

John H. Bisbee, an attorney from Macomb, Ill., making his first appearance in the high court, wants to tell the justices more details about the lunchroom conversation. He prefers to ignore the broader issue of whether public employees have an absolute right to sound off on matters of public concern.

As his argument drones on, the chief justice grows exasperated.

“You have made that point for 25 minutes now,” he interrupts again.

A language buff, Rehnquist also gets irked when lawyers use words loosely. Even prominent advocates, such as George Bush Administration Solicitor General Kenneth W. Starr, have been targets.

“Let me share with you a bit of the record,” Starr said during an argument last year.

“Why don’t you just tell us about it,” Rehnquist suggested.

The “chief,” as he is known by his colleagues, gets impatient when lawyers resort to high-blown oratory.

Several years ago, during an argument in a dispute over the teaching of creationism, a lawyer told the justices that the case could be seen as a replay of “Alice in Wonderland.” Rising to a crescendo, he said he hoped “this honorable court will not be fooled like Alice” by the misleading use of certain words.

“Don’t overestimate us,” Rehnquist interjected dryly.

Near the center of the bench are Justices John Paul Stevens and Anthony M. Kennedy, who are invariably polite and professorial.

“Counsel, may I ask you a question about your theory of this case?” begins Stevens, sporting his trademark bow tie.

Around the court and among veteran attorneys, Stevens, 73, is viewed as the kindest of the nine justices, and possibly the smartest. Quite often, he poses elaborate hypothetical situations to test the outer reaches of a lawyer’s claim.

Last year, however, he startled some courtroom observers with a series of questions about killing cats. A lawyer for a Florida city was defending an ordinance that made an “animal sacrifice” a crime. Stevens, who commutes during the winter to a condominium in Ft. Lauderdale, asked if it would violate the law if he drowned his cat in the bathtub to “put it out of its misery.”

No, the lawyer said.

Well, suppose the cat were not sick, but he wanted to kill it anyway?

That would violate the law, the city official said.

Seemingly satisfied, Stevens sat back in his chair.

Kennedy, 57, who taught at the McGeorge Law School in Sacramento before joining the high court in 1988, is fond of hypothetical questions. Two years ago, during an argument involving a legal ban on nude dancing at Indiana nightclubs, Kennedy asked what became known as the “adults-only car wash question.”

A lawyer representing the tavern owners had argued that the First Amendment protects erotic dancing as a form of free expression.

Suppose the owner of a car wash wants to attract more customers, Kennedy said, and he “hires a woman and says to her, ‘Now, you sit there nude in this glass cage.’ ” Is that protected under the Constitution?

No, not unless she dances, the attorney replied.

OK, suppose the car wash operator plays some music and tells her to dance. Can that be outlawed, Kennedy asked.

No, the attorney said, although the city could pass a law limiting car washes to adults only.

Not surprisingly, Kennedy voted with the majority to uphold the state law against nude dancing.

Sitting next to Kennedy is Justice Sandra Day O’Connor, who, as usual, appears stiff, humorless and a bit annoyed. Among her colleagues, O’Connor, 63, is known for being particularly well-prepared for oral arguments. She often meets on Saturday mornings with her law clerks to go over cases that will heard during the next week.

Hers is a no-nonsense style. And on this particular morning, she looks perturbed as Ginsburg and Scalia ask one question after another.

“Your time is about to expire,” she tells one lawyer, and “I did want to ask one question, please.”

Suppose the employee’s comments are both “protected speech” and “inherently disruptive” to morale, O’Connor says. How should that situation be handled?

She has found the nub of the problem in this case. In the past, the Supreme Court has posed two alternatives. If a public employee sounds off on a matter of public concern, his or her words are protected under the First Amendment. If the employee gripes about an internal matter, he or she can be disciplined. But what if the employee is griping about an internal matter that is potentially of great public concern?

In reply, the nurse’s attorney says the case should be tried to determine the essence of her complaint, which is what the hospital seeks to avoid.

To no one’s surprise, Justices Harry A. Blackmun, 85, and Clarence Thomas, 45, remain silent.

On the rare occasion when Blackmun speaks during an argument, he usually asks an oddball question.

Last year, in the midst of arguments on whether a Minnesota law prohibiting cross-burning violates the First Amendment, Blackmun interrupted a county prosecutor to complain about unmown grass in the public parks. While other justices exchanged glances, Blackmun, a native of St. Paul, Minn., described how he had recently visited a city park that offers a stunning overlook of the Mississippi River. Yet, he observed, the grass stood knee-high.

When you return, would you convey to city officials the need to do a better job of mowing? Blackmun asked.

“Yes, your honor,” came the reply.

Several years ago, the court heard arguments over whether county child-care workers could be sued for failing to act quickly to rescue a young boy named Joshua Deshaney from beatings administered by his father. Blackmun sat silently through the hearing, except to exclaim, “Poor Joshua!”--an outburst that became a joke among the justices.

Blackmun is no favorite of Supreme Court staffers. He is often somber and prickly, easily irritated by small mistakes.

During last year’s argument in the case of Haitian boat people seeking asylum, Blackmun interrupted Justice Department attorney Maureen Mahoney to ask if she had visited the Caribbean island.

No, she replied.

“Are you familiar with a book called ‘The Comedians’ by Graham Greene?” he asked.

Mahoney said she had not read it.

“I recommend it to you,” Blackmun replied gravely.

Thomas has yet to ask a question this term. Last year, on a few occasions, he spoke in a halting voice to pose what sounded like prepared questions. He looked and sounded uneasy.

A few days after oral arguments, the justices meet behind closed doors to vote on each case and begin writing opinions. The decision in the free-speech case, Churchill vs. Waters, 92-1450, can be expected in several months.