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Fleming Featured in Law360 Analysis of Post-Scalia Supreme Court Oral Arguments

June 14, 2016

Law360 drew on the insights of Partner Mark Fleming in “A New Justice Dominates Oral Arguments In Wake Of Scalia's Death,” a June 10, 2016 article that examines the dynamics of the US Supreme Court since Justice Scalia's death in February.

The article quotes Fleming, vice chair of WilmerHale's Appellate and Supreme Court Litigation Group, on the current state of oral arguments in the Court: “If anyone thought that after Justice Scalia was no longer on the court that the bench would somehow cool off, I think that's clearly been shown not to be the case…The current members of the court are just as active, and in many ways maybe more active, since they stepped in to fill the void that Justice Scalia's questioning may have otherwise occupied.”

Law360 also notes that “WilmerHale's Fleming, who has argued five cases before the Supreme Court, said Chief Justice Roberts, in a somewhat similar vein as Justice Scalia, will often ask a specific question, let the advocate answer, but then follow up.

“'He doesn't do that in every case, but there have certainly been a number of cases in the latter part of this term where he's taken a very active role in questioning, with the kind of rapid-fire questioning style which we saw from Justice Scalia,' Fleming said.”

Fleming also comments on his experience with a more vocal court: “I think an active bench is always better for an advocate. It shows the court is prepared; it shows that they're engaged with your case…And it gives you a sense of what the court is concerned about and opportunity to convince.”