Oregon State Bar Bulletin — FEBRUARY/MARCH 2002

Extreme Lawyering
Arguing before the Supreme Court
By Jeff Bleich

Former Attorney General Ramsey Clark used to say that he gave three arguments each time he appeared before the U.S. Supreme Court: 'the good argument that I was prepared to give, the miserable argument that I actually gave and the brilliant winning argument that I thought of afterward.' Most lawyers, for better or worse, will never know what sort of advocate they would have made before the Supreme Court, and they face slimmer odds each year. This year the Court is on pace to hear the fewest number of cases in any term since the Civil War: Only 60 of the 7,000 petitions that it received this year have been granted. Nevertheless, for those who wonder what it would be like, we can at least experience vicariously what happens when a lawyer appears before the highest Court.

Ordinarily, there is no drama in a federal court's decision to review a case. Other courts simply have no choice about whether to decide an appeal once your client (or your client's deluded adversary) files a notice of appeal. The question for counsel is not whether, but only when, the appeal will be decided.
With the Supreme Court, however, there is never any guarantee that the case will be heard at all. The period during which petitions for certiorari are pending thus forms its own drama. Often, after they file petitions, counsel act like anxious beauty contestants, finding they can barely concentrate on their mundane dance performances while the celebrity 'judges' huddle to decide who gets their moment on the national stage. Attorneys obsessively track the Court's conference list to see when their case will be discussed. They speculate about the significance of being rushed to conference, or lagging behind petitions filed at the same time, or being carried over from one conference to the next. They receive calls from other (apparently underemployed) people who for fun like to read conferences lists and try to predict which cases will be taken - and which will not.

For most, the decision comes in the mail: a form denial of cert. But for a small handful of people, there is 'the call.' It usually comes from William Suter, the clerk of the U.S. Supreme Court, an angular, gracious man with the assuring voice and manner of an undertaker. He reads (without inflection) the Court's order informing counsel that the Court has taken review of their case. Despite his dry delivery, the moment is still startling: a jarring collision with history. One minute earlier, the attorney was just one of tens of thousands of attorneys who have put a petition on file. The next minute, with a single call, he or she is assured a place in history: with name and cause etched for all time in a volume of the U.S. Reports.

Or maybe not.

Among the things that attorneys discover after their case is granted, is how many people believe they could do a better job handling the case. Various friends, colleagues and Court watchers call to offer their services: some offer to help write the briefs, others to print the briefs, others to file amicus briefs in support. Most, however, are interested in taking over the attorney's place altogether and arguing his or her case. Sometimes the good Samaritan is the senior attorney on the caption page who until now had only a passing interest in the case. Sometimes it is the senior attorney in the firm who never had any prior interest in the case at all, but feels a duty to represent the firm. Sometimes it is a person who has handled similar cases and who feels he or she knows more about the 'legal landscape.' Most often it is a D.C.-based Supreme Court 'veteran' who tries to convince the attorney that the Court is an exotic nine-headed beast that will yield only to veterans, becoming enraged when approached by one who is not properly initiated.

Many attorneys - at times with good reason - will hand their case over to a more experienced lawyer. But if not, the attorney becomes counsel of record, and receives both a list of the Court's filing rules and a helpful book written for counsel by Suter, entitled: Guide for Counsel (also available on-line at www.supremecourtus.gov/oral_arguments/guideforcounsel.pdf.).

If any document defines the difference between the Supreme Court and any other court, it is the Guide for Counsel. There the Court instructs for example - in a bold display of italics - that it will not be underestimated, interrupted, tricked, corrected, unappreciated or otherwise caused to suffer in the presence of any counsel. Among the Guide's rules (with original emphasis):

Do not introduce yourself to the Court.

Say nothing until the chief justice recognizes you by name.

Never under any circumstances interrupt a justice who is addressing you.

Do not check your watch.

You should not attempt to enhance your argument time by a rapid-fire, stacatto delivery.

A legal pad does not fit on the lectern. Using an 8½'x11' notebook appears more professional.

Do not 'correct' a justice unless the point is essential.

Attempts at humor usually fall flat.

The Guide also provides helpful hints about not making annoying noises in the microphone and adjusting the lectern's height with a crank. The effect is to ensure that all counsel feel as if they have been invited to a society dinner by accident, at which they are sure to be out of place, ill-mannered and unprepared.

Virtually every Supreme Court advocate does practice rounds. This is not something unique to Supreme Court practice, of course. Most appellate advocates do a moot court or two before an important argument. However, these moot courts are usually done a few days before the argument in a conference room with one or two attorneys who worked on the case and any other smart person the attorney can enlist to help out. These informal sessions are fairly loose simulations, prefaced with awkward apologies about how the attorney is still preparing, how they'll be much better when they actually argue the case, and how this has been a really tough week.

By contrast, Supreme Court moot courts do not mess around. Virtually any law professor or top-flight advocate in town who is asked will agree to moot court someone with a case before the Court. In addition, several prestigious groups provide free moot courts as a service to the Court and counsel. The Georgetown Supreme Court Institute, for example, offers a free moot court to one side in every case before the Court each term (on a first come, first served basis), where top law professors will gleefully grill the attorney about matters they could not possibly know. Other moot courts are available for specific kinds of cases. Public Citizen will moot court any party with a public law issue on the civil rights side. As with most moot court experiences, the more moot courts counsel has, the more contradictory advice they get, and the more nervous they become that they are utterly unprepared for the real thing.

The day before their argument, it is common for counsel to sit in on an oral argument to watch the Court in action. As members of the Supreme Court bar, they are invited to sit in the special attorneys' area closest to the bench as long as they are dressed properly. (Attorneys dressed in 'business casual,' as a couple of Bay Area counsel recently learned, will have their poorly dressed presence removed to the spectator part of the courtroom.)

The courtroom appears both grander and smaller than the attorneys expect. The ceiling is impossibly high, the tables unnaturally dark with age, the justices' pewter goblets, their brass spittoons, their ancient bench all radiate history. The justices themselves are too close, the lectern too small, the time too quick and one after another the lawyers - one and all - get hammered by the justices.

For the uninitiated, the proceedings can be unsettling. The chief justice surprises counsel by rising 30 minutes into the argument (on the dot) to disappear behind the red curtain and stretch his back. Justices who one expects to be ideological adversaries tilt their chairs back, lean together and chuckle private thoughts. The justices pass cryptic notes to the marshals. The justices are so close that counsel can often hear what they are saying to one another. One San Francisco advocate before the Court recently had the disquieting experience of hearing Chief Justice Rehnquist speculate to Justice Stevens about whether another justice was trying to 'save' him.

Suddenly, the jitters make sense. Counsel can understand how last term former Solicitor General Drew Days managed to called Justices O'Connor and Ginsburg by the wrong names; how the Florida Secretary of State's counsel in Bush v. Gore managed to garble the name of virtually every justice he addressed; how one advocate last year told the Court that he was afraid that he might go to the bathroom right then and there. Most counsel admit that they do not sleep well if at all, that night. And for good reason.

On the morning of their argument, the lawyers go through a battery of standard security checks, while those waiting in the regular line watch them in interest and pity. They are led to the Clerk's office where they are received by Suter, wearing his traditional morning coat. In a special lawyers' lounge just off to the side of the courtroom entrance, Suter instructs them about what to expect and reminds them of what they should and should not do. They are reminded what the lights on the lectern mean, when it will go on, where each person is to sit. Lawyers describe the lounge as remarkably calm, in part, because no one is cramming or on a cell phone. For perhaps the first time in their careers, they are fully prepared and free from distractions.

They are led to the counsel tables. While their adrenaline pumps, they must endure the tedious process of the chief justice inviting a series of other members of the Supreme Court bar to approach the lectern and sponsor a new member of the bar: each laboriously reassures the Court that the person possesses the necessary qualifications. And then, all at once, time accelerates. Suddenly, they are the one, standing 10 feet away from the chief justice hearing him say 'you may begin.'

At this moment, even the most seasoned attorneys forget about the crank on the side of the lectern as well as just about any other advice that they have received until now. Many attorneys introduce themselves. Attorneys make jokes that fall flat: one counsel for example recently attempted to make flatulence jokes at the expense of Justice Scalia. Other attorneys ignore the proscription against correcting the justices. Earlier this term, John Weston, an attorney representing an adult bookstore, went toe-to-toe with Justice Scalia about whether a footnote in his brief contradicted a point made in his argument. After double-checking the footnote, Scalia politely apologized and said he had read the footnote too quickly. Weston - having flaunted the Guide's protocol - responded with obvious relief, 'Thank you, Justice Scalia. I believe I'll go home now.' Other attorneys who defend their footnotes against Justice Scalia, do so at their peril. The week after Weston's argument, Justice Scalia took Wilfred Wright to task for referring to his client's son as a 'special education student who was being mainstreamed' in a regular public school class - when in fact, a footnote confirmed that the child was a normal student who simply received 45 minutes of speech therapy each week.

Counsel rarely have time to think about the many peccadilloes of the individual justices. The questions come so quickly and from so many directions that most counsel feel they are lucky to make any of their key points at all. Often they come away with the overwhelming sense that the justices were mostly using them to make their own points to the other justices. Justice Souter often distills arguments he likes in order to emphasize them. Justices Breyer, Kennedy and Ginsburg tend to ask complicated multi-part questions designed to highlight key issues. Justice Scalia's questioning is relentless. And just when the counsel believes he or she has finally found an opening, the red light appears, and the chief justice firmly cuts of any further conversation by saying: 'your time is up, counsel.' As the Guide makes clear, counsel must cease speaking 'immediately.'

Most attorneys barely remember the post-argument period. They recall a vague sense of regret, converging crowds, clutches of media on the Court steps directing microphones at them. Obligatory pictures are taken of the advocate and his or her client on the steps. Reviewing those photos, attorneys discover they are clutching the handcrafted feather and quill pen from counsel's table that they received as a memento. One advocate recommends that counsel also get to know the people who are doing courtroom graphics because they may give a break on their pastel and ink sketches of the argument (which usually sell for $1,000). After the crowd has thinned, they slip anonymously back into the courthouse to visit the gift shop, to extend the experience a few minutes longer and find something to prove to the folks back home that it actually happened.

It ends, as it began: waiting for a call. On any given argument date before the last court session in June, the call could come. Suter informs counsel that morning that their case is about to decided, but will not disclose the outcome in advance. For lawyers on the West Coast, these calls may come at 5 a.m. For lawyers in D.C., they have just enough time to race to the Court to hear their decision read.

After that the press calls come in before it is humanly possible to read the opinion, let alone consider all of its implications. Counsel give the best reactions they can and then, knowing that whatever they've said will be mischaracterized by the media, they retreat to a quiet room to finally read the opinion from start to finish. Sometimes they find their own words repeated back in the opinion. But eventually, they turn to the first page, and wonder at seeing their name there, etched on a page of history.

Jeff Bleich is a litigation partner at Munger Tolles & Olson in San Francisco. He clerked for Chief Justice Rehnquist in October Term 1990 and teaches constitutional law at Boalt Hall.

© 2002 Jeff Bleich

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