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Wednesday, November 13, 2013

Could Oral Argument be More Important Than We Think?

For class today, I was assigned to read Lauritzen v. Larson, 345 U.S. 571 (1953).  While the case is interesting, I was intrigued by the last few words of the case:
Mr. Justice CLARK, not having heard oral argument, took no part in the consideration or
decision of this case.
Could it be that if a Justice does not hear a case, he or she cannot participate in the case?  If this were the case, it could cause interesting outcomes in the event of surprise absences.

Intrigued, I did a Westlaw search for all Supreme Court cases containing the phrase, "not having heard oral argument, took no part."  I found three opinions (including Lauritzen) that contained this phrase.  All of them were instances of Justice Clark not taking part, and two of the cases were argued on January 6, 1953 (LauritzenMay v. Anderson, 345 U.S. 528 (1953)),and one of them was argued on January 7, 1953 (Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953)).

Clark's absence in these cases was not earth-shattering.  One of the case had one dissenter, and the other two had three, so even if Clark had dissented, the  majority's decision would have remained.

I confirmed that these was not a typical Clark recusal based on a conflict of interest with his son, Ramsey Clark.  In 1953, Ramsey had not yet been appointed to the position of United States Attorney General (and the United States government was not involved in either of these cases).

If a Justice simply misses oral argument, does this mean that the Justice cannot take part in the decision?  The low number of cases where this has happened made me suspect the answer was "no," and some further investigation confirmed that Justices are permitted to take part in decisions by listening to recordings of oral arguments or by reading the transcript of the argument.

So the answer to this post's title, alas, is "no."  But Clark's absence from the decision in these three cases is nevertheless interesting, especially since I am aware of no reasons why he could not have participated by reading the transcript of the oral arguments.

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