The Supreme Challenge
How do you get ready for a Supreme Court case?
Preparing for oral argument is more work than I’ve ever done in my life. For Central Laborers’ Pension Fund, I had specialists in ERISA [Employee Retirement Income Security Act] to consult with; I read a huge amount; and I held four moot courts. In appellate cases, you get to go into an insane amount of detail about a topic, you learn an area of the law, and then you move on.
The role of the lawyer in a Supreme Court case is to translate the technically specific field of law to justices who don’t know much about it. The worst thing is to have a sub-sub-specialist arguing the case—they’ll get lost in lingo and jargon. Instead, you want to take a step back as someone who has learned the specific area of law, but can approach it with a fresh perspective.
You’ve argued a case before the Rehnquist Court and one before the Roberts Court. Can you discern any differences?
The Roberts Court hasn’t existed very long—it appears it may be nicer to litigants, letting them talk more. But it’s hard to tell yet. Justice Roberts is an insightful questioner, and he’s much more active on the bench than Chief Justice Rehnquist was. I think he remembers what it’s like to be on the other side of the bench, before he became a judge. The justices probably try to give lawyers more leeway to make their arguments, rather than interrupting. But Roberts cuts you off mid-sentence just as Rehnquist used to do. They all seem to get along a little better now—on the surface. That might be because they lived through two years of Renhquist getting sick and dying, and O’Connor’s husband was quite ill as well.
Are there hard and easy justices on the Court?
I’ve been questioned by all of the justices but Thomas. Stevens is very deferential. He says, “there’s just this one little thing that’s puzzling me,” and then he asks one devastating question that gets to the very heart of your argument. Scalia makes it absolutely clear if he disagrees with you—he doesn’t hide his disdain for your argument. Other justices play their cards closer to the vest. Breyer asks these long hypothetical questions, trying to ponder the implications for other areas of law. He’s the classic law professor. Rehnquist was much more gruff: he wanted you to get to the heart of the matter, keep the argument narrow; he had no interest in these broader matters.
How much difference does oral argument make, given that so much hinges on the written record in a case— lower-court decisions and briefs submitted by each side?
It is said that you can lose a case in oral argument easier than you can win it. Lawyers may concede points in oral argument that make their position much more indefensible, because they’re doing it on their feet, on the fly. You can win in oral argument if you can answer the court’s concerns in a way that leads them to be more comfortable with your position, and with the implications of your position for other areas of law or public policy.
Do you have a preference for representing clients in civil rights cases in your appellate practice?
I work for a big law firm representing corporate America much of the time, and I would be just as happy to argue for Honda Motor Company. I also do a lot of pro bono work, and it tends to be idealistically or ideologically driven—the ACLU, Violence Policy Center, Americans United for Separation of Church and State. I represent someone who’s on death row in Georgia, and I’m hoping to get that before the Supreme Court.
How do you prepare physically and mentally for oral argument?
I got some sleep the night before each Supreme Court argument. Both times I had a moment of utter panic right before standing up before the justices. There’s a ritualistic start to the argument, you start talking, and suddenly it flows. I continued to be on edge until the first question was asked, and then it was off to the races. It’s conversation, repartee, back-and-forth. The justices’ tendency is to focus on a narrow point that can be a downside to your argument. There’s no time to be nervous because you’re at once trying to answer the question you’re being asked, anticipate its implications, and steer the conversation to what you want to focus on.
You’re under tremendous pressure when arguing before the Supreme Court. Why do it?
The two most intense intellectual experiences of my life have been sitting in a conference at Reed arguing with the professor, and arguing before the Supreme Court. You’re spitting-distance from nine of the smartest people out there, people who—whatever you think of their politics—care about doing justice in every case before them. And you’re fighting about a question of law in a way that will affect the world. In the immigration case I just argued, not only did it have real implications for tens of thousands of people, but my client’s wife and son were in the courtroom. It’s the scariest thing I ’ve ever done, it’s a rush, but it also makes a difference.