As we noted back in April, in a recent article in the UCLA Law Review, Professor Daniel Bussel has taken issue with the California Supreme Court’s practice of having a draft opinion written before oral argument. Bussel charges that the practice, which he believes indicates the Court has already decided how to rule before oral argument, renders oral argument a sham that violates litigants’ due process rights.
In his recent riposte, “How the California Supreme Court Actually Works: A Reply to Professor Bussel,” Justice Goodwin Liu strongly disagrees with Bussel’s conclusions. Justice Liu writes:
“I have seen enough to know that Professor Bussel’s account of how the California Supreme Court treats oral argument bears little resemblance to reality. 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.”
Professor Bussel, in his reply article, “The Best of All Possible Worlds? — A Rejoinder to Justice Liu,” disputes Justice Liu’s assertion that the crafting of a draft majority opinion merely identifies the “key sticking points in the case.” In Professor Bussel’s view, “[t]he preliminary written response process does not identify ‘the key sticking points’ [fn. omitted]; it tentatively resolves them through majority vote as expressed in the preargument circulation of signed written memoranda.” But, Bussel adds, “[t]he real problem is that it defies common sense to suggest that meaningful persuasion can take place at the subsequent oral argument, after an undisclosed preliminary consensus has been forged on the basis of the reporting justice’s draft opinion, which is vetted through a process of intensive written deliberation, particularly under the pressure of the 90-day rule.”
It sounds like Justice Liu and Professor Bussel will have to agree to disagree. One thing both authors seem to agree on is that more scholarly analysis of the decisional practices of the nation’s appellate courts would be useful.
For further discussion of what passes for a heated debate in the normally staid appellate world, check out Emily Green’s article, “State Supreme Court’s drafting of decisions before oral argument draws fire,” in the June 2, 2014 issue of the Daily Journal [subscription required].
