Not long ago, U.S. Supreme Court justice Ruth Bader Ginsburg described the first oral argument she made to the Supreme Court, when she worked as an American Civil Liberties Union lawyer in the early 1970s. She recounted the anxiety, the butterflies, and then the “feeling of extraordinary power” as she addressed her captive audience of the “nine top judges in the land.” Writing in a foreword to David Frederick’s 2003 book Supreme Court and Appellate Advocacy, Ginsburg concluded that “oral advocacy is an art, but it is one that can be learned by determined effort.”
The recently completed term of the Supreme Court offered many cautionary signs that the art of oral advocacy can also be mystifying and unpredictable-even as it remains exhilarating and alluring to the best of lawyers. One such sign emerged this term from the papers of the late justice Harry Blackmun, released at the Library of Congress last spring. It turns out that Blackmun graded many of the advocates who appeared before him, also making odd notations about their physical appearance (as in “dark mustache” or “looks tired”), their alma maters, and even their ethnicity. As word has spread about Blackmun’s peculiar practice, high court advocates have been making visits to the Library of Congress to view, with a sense of dread, how they made out in Blackmun’s eyes.
For example, the argument that gave Ginsburg butterflies earned her a grade of C+ from Blackmun. “NYC J ACLU female, very precise, reads. Rutgers.” This was Blackmun’s annotation on Ginsburg in the 1973 women’s rights case Frontiero v. Laird (now known as Frontiero v. Richardson). Rutgers School of Law was where she had taught. She was from New York City, and “J,” it appears, stands for Jewish.
Ginsburg also won that case, as she did other arguments in which she earned disapproving comments from Blackmun. “Offensive” is how he described Ginsburg in a 1978 oral argument. And she was “too smart” in a 1974 case, in Blackmun’s view.
Whatever the grading says about Blackmun-did he do it to help him recall arguments later, or was it a quirky, self-distracting parlor game?-it also says this: If oral advocacy is an art, it can succeed even if its beholders don’t much like it.
In two cases last term, oral advocates learned another lesson: Don’t always follow the advice of the experts.
Frank Dunham, Jr., the fearless federal public defender who argued and won the landmark case on enemy combatants, Hamdi v. Rumsfeld, recalled recently that during numerous moot courts in advance of his April 28 argument, “the mooters all told me that [Justice Antonin] Scalia was the devil,” and that no energy should be expended in trying to win his vote. As it turned out, the Court agreed with Dunham that his client Yaser Hamdi deserved due process if he was to be held as an enemy combatant. Scalia dissented-but only because he felt the Court had not gone far enough in rejecting the Bush administration’s position.
“Scalia has been a stand-up guy for civil liberties,” Dunham said at a Constitution Project forum on the enemy combatant cases. If Dunham had spent more time at oral argument trying to cultivate Scalia, would he have won an even stronger victory? Who knows, but it seems that Dunham wishes he had tried.
One piece of advice Dunham did take was not to joke with the justices. If any of the justices had asked what his client Hamdi was doing with a gun when he was captured in Afghanistan, he says he was tempted to answer, “Duck hunting”-a reference to Scalia’s notorious trip in January with Vice President Dick Cheney. Skipping that joke was probably a good idea.
When preparing for oral argument in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow, Michael Newdow received nearly unanimous advice to steer clear of family law issues. The precise nature of Newdow’s custody over his daughter was a key issue in deciding whether he had standing to challenge the words “under God” in the pledge on her behalf. But Newdow’s allies were concerned that if he went down that road, his anger about the California family law system would overtake him. At a Legal Times forum on the past term, Newdow said that family law was “such a nonissue to me” that he followed the advice to avoid addressing it in his brief and oral argument. “Obviously it wasn’t [a nonissue] to them,” he added.
Justice John Paul Stevens spent much of his majority opinion discussing the custody issue, ultimately ruling that because of it, Newdow did not have sufficient standing to bring the case. Would a fuller discussion of custody at argument have made a difference? Maybe, though Newdow adds, “It may just be . . . that it was preordained that they were going to skirt the issue, and so it didn’t matter what I did.”
These advocates learned what a minefield oral argument can be at the Supreme Court. And yet lawyers still cannot wait to tramp through it. Just after the term ended, the D.C. firm Hogan & Hartson announced that Gregory Garre, who argued nine cases before the Court in the solicitor general’s office, had rejoined the firm to head up and revitalize its Supreme Court and appellate practice. Hogan is home to E. Barrett Prettyman, Jr., a scholar and student of high court oral advocacy, and was the home until recently of John Roberts, Jr., one its finest practitioners. Roberts left in June 2003 to become a judge on the U.S. Court of Appeals for the D.C. Circuit.
Supreme Court litigation is “an increasingly competitive marketplace,” says Garre, 39. “Everyone wants to be present before that Court.” Arguing there, especially with the Supreme Court’s shrinking docket and hot bench, is a point of prestige, as well as a signal to clients that the firm can handle any and all aspects of a case, Garre says. “It’s great work, a great practice, and great for recruiting lawyers, too,” he adds.
Garre speaks worshipfully of Roberts, with whom he worked before going to the SG’s office in 2000. He remembers Roberts carrying lists of the questions he anticipated the justices would ask, honing and refining his answers repeatedly so that when argument day came he could respond without wasting time. Roberts would also shuffle his list of questions and practice his answers in different order so that he could segue seamlessly from point to point, in any sequence the justices wanted him to follow, David Frederick recalls in his book on advocacy. And always, Roberts would answer a question with a clear yes or no, before elaborating.
In his own arguments before the Court, Garre applied Roberts’s lessons about preparation faithfully. In Thornton v. United States, argued in April, Garre says he spoke to the officers involved in the automobile search at issue and was watching police training videos the night before argument. “John taught me the discipline you need to put in the hours of preparation needed,” he says.
Garre hopes to have Hogan arguing three or four cases a term or more-in the same league with the likes of Sidley Austin Brown & Wood; Wilmer Cutler Pickering Hale and Dorr; Mayer, Brown, Rowe & Maw; Jenner & Block; and upstart Goldstein & Howe.
The intense competition among top-drawer advocates is actually nothing new. Speaking recently before the Supreme Court Historical Society, author Frederick, who is also a partner at Kellogg, Huber, Hansen, Todd & Evans, lectured on Supreme Court advocacy of the early nineteenth century. Daniel Webster, William Pinkney, and William Wirt-who argued 138 cases to the Court-dominated the practice at the time. Wirt’s advice to advocates then, as quoted by Frederick, was to “read like Jefferson and speak like Henry. . . . Master the cause in all of its points of fact and law; digest a profound, comprehensive, simple, and glowing speech for the occasion. . . . And insinuate yourself among the heartstrings, the bones, and the marrow.”
It also appears from Frederick’s research that Blackmun was not the only justice to have busied himself with extraneous writings during oral argument. Justice Joseph Story, who served from 1811 to 1845, often wrote assiduously while lawyers spoke. But apparently he was writing poems, not taking notes about the arguments. In one bit of doggerel, Story wrote what still stands as excellent advice for anyone who dares to take the podium at the Supreme Court:
Stuff not your speech with every sort of law,
Give us the grain, and throw away the straw . . .
Who’s a great lawyer? He who aims to say
The least his cause requires, not all he may.