Judges, like all public officials, are used to criticism. The task of resolving important legal controversies seldom pleases all sides, and scholars, pundits, and dissenting colleagues often spare no pains to remind us that we are not “infallible.” On many issues, no matter how we decide, we must take our lumps. That goes with the job. But it is one thing to be told that the outcome of a judicial process is erroneous or ill-reasoned. It is quite another to be told that the judicial process itself perpetrates a fraud on litigants and the public at large.
In his article Opinions First—Argument Afterwards, Professor Daniel Bussel claims that “the California Supreme Court drafts and votes on its merits opinions before the case underreview is orally argued.” This anomaly,supposedly dictated by the court’s internal operating procedures, makes oral argument “a Theater of the Absurd,” a “faux” process, and “a sham” that “squanders and demeans the parties’ formal opportunity for appellate argument.” According to Professor Bussel, “[v]irtually all” of “the positive institutional value of oral argument depends upon conducting the argument prior to the court reaching a preliminary decision.” Thus, he says, the only possible rationale for post-decision argument must be the court’s “deeply cynical” desire to “perpetuate a false impression in the public mind that litigants before the court have an opportunity to orally argue their cases before they are decided.” “The net result,” he concludes, “is that California’s highest court—unnecessarily—disrespects the ideal of due process of law systematically and in every case it hears on the merits.”
This is quite an indictment. Fortunately, it does not capture how the California Supreme Court actually works. Our decisionmaking process does not deprive litigants of a real opportunity to influence the court through oral argument. If anything, our process enhances the opportunity for attentive litigants to address what the court regards as the true sticking points in a given case. Moreover, although Professor Bussel contends that oral argument plays a greater role in the United States Supreme Court than in the California Supreme Court, there is no reason to think this is so. Whatever the shortcomings of our decisionmaking process, subjecting litigants to oral argument that is “nothing more than the curtain of the Wizard of Oz” is not one of them.61-5-2