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When Deputy Solicitor General Lawrence Wallace rose to argue his 157th and final case before the U.S. Supreme Court last November, Chief Justice William Rehnquist greeted him with congratulations and a good-natured warning. Noting that Wallace had long ago eclipsed the record for the most high court cases argued in the 20th century, Rehnquist expressed the Court’s appreciation for “your many years of quality advocacy and dedicated service.” Rehnquist paused and added, “That doesn’t mean we are going to rule in your favor.” Pleased at the recognition but not wanting to show it, Wallace replied quickly, “Thank you very much, Mr. Chief Justice, and may it please the Court.” And then Wallace did what he has often done in the past: Due to the line of questions the justices had posed to the first lawyer in the case, he mentally tore up the argument he planned to make. Wallace instead went right to the issue that seemed to be troubling the Court. The day might have been a milestone for Wallace, but he had a case to argue. Four months later, the ruling came down in Moseley v. V Secret Catalogue, and in spite of Rehnquist’s admonition, the Court ruled pretty much the way Wallace thought it should. “You can’t stand up there and deliver a prepared speech as if nothing happened before you stood up,” recalls Wallace, 72, who retired in January. “The best-laid plans are often cast asunder.” The ability to switch gears is just one of the lessons of Supreme Court advocacy that Wallace learned during his 35 years in the solicitor general’s office — lessons that helped him earn the trust and respect of the nation’s highest court. Administrations and solicitors general came and went — he worked for 10 SGs in all — but Wallace outlasted them. He steered the middle path of a quintessential civil servant, interested more in being true to the Supreme Court and to the law than in mouthing the policy agenda of his politically appointed superiors. An oral argument by Larry Wallace was not always a beautiful thing to behold. His delivery usually lacked the dazzling rhetorical flourishes of Harvard Law School professor Laurence Tribe, or the calm reassurance of either Carter Phillips of Sidley Austin Brown & Wood or John Roberts Jr. of Hogan & Hartson (and soon to sit on the U.S. Court of Appeals for the D.C. Circuit). Wallace’s voice had an aristocratic, old-world timbre to it; phrases such as “cast asunder” and “quite so” flowed easily from his lips. And while advocates are universally coached to respond with alacrity to each and every one of the justices’ questions, Wallace acknowledges that sometimes his replies betrayed impatience. The constant barrage of questions from the current Court makes it hard for any lawyer to make the points he wants to make. “It’s very hard to build anything with your argument when you are asked a question before you establish where you want to go,” Wallace says. Wallace recalls wistfully arguing before a less inquisitive bench 30 years ago, when oral advocacy was “a more placid experience.” He once reviewed transcripts of an early argument, and was surprised to discover that he was allowed to argue uninterrupted for seven or eight pages. “You would never do that now,” he says. “Larry had a firm idea of what he wanted the justices to hear, and he was dogged about it,” says David Frederick of D.C.’s Kellogg, Huber, Hansen, Todd & Evans, who worked with Wallace in the SG’s office. (Frederick also just published a book, Supreme Court and Appellate Advocacy.) “Larry’s style was distinctive and impossible to replicate.” But Wallace, even when he had trouble getting a word in edgewise, made his points crisply and succinctly. He often had only 10 minutes to present to the Court, so being terse was a necessity. “You have to be ruthless in blue-penciling your thoughts,” he says. “You have to decide what really will make a difference.” Often Wallace knew that making a technical point, though generating no headlines, would plug a procedural hole that was troubling the Court. When Wallace tutored others in the SG’s office and critiqued their arguments, that instinctive sense of what belonged and did not belong in a presentation was perhaps his greatest gift. “He found just the right words,” said Deputy Solicitor General Edwin Kneedler at a Department of Justice farewell tribute to Wallace in February. “Larry’s judgment was almost always right.” With 80 Supreme Court appearances under his belt, Kneedler appears to be next in line behind Wallace among living lawyers in the number of cases argued before the Court. Wallace was not one for extensive rehearsal to find those right words. He rarely did moot courts, not wanting to peak prematurely. “It’s an idiosyncrasy of mine,” says Wallace. “Most advocates do benefit from them.” Instead, he would take long walks in his Chevy Chase, Md., neighborhood to think deeply about the tough questions in the case: “You need to be very clear about how to formulate your key concepts. You can’t be fumbling for words up there.” Nor can an advocate merely repeat or summarize the points of his or her brief. “It can be very boring for the justices if they hear nothing from you but an exercise in reader comprehension,” he says. Instead, Wallace says, advocates must summon their knowledge of the case and of what the Court has said about the issue before, and coax the justices to take the next small step in “the coherent development of their jurisprudence.” He adds, “You have to show them why your answer to the case is not something that will do damage to the law.” But advocates must also anticipate the opposition’s strategy, Wallace says. “A lawyer is not prepared to argue a case if he is not prepared to answer what is the strongest argument against him.” Sometimes that answer may not please a client, because it entails making a concession or acknowledging that in some cases the opponent’s position has validity. “The temptation of private practitioners is to say the things the client will enjoy hearing rather than what the Court wants to hear,” says Wallace. While his advice is sage counsel for the private bar, Wallace understands best the special relationship the solicitor general has with the Court. “When you represent the government, you have to remember it’s everybody’s government, including the adversary’s government,” Wallace observes. “It puts you a little closer to the perspective the Court has.” The special sense of rapport with the Court, along with Wallace’s civil service status, helped give him the starch to defy meddlesome White House officials over the years. Wallace’s first boss, Erwin Griswold, told him he should always take calls from the White House. “You can learn something from the call. There could be a legitimate reason for such a call,” says Wallace. But if the White House asked him to take an implausible position that would damage the solicitor general’s relationship with the Supreme Court, Wallace says, his instructions were to tell the caller, “I take my instructions from the solicitor general.” All of the SGs he worked for respected Wallace’s independence, he says. In 1982, Wallace notably declined to embrace the Reagan administration’s position in Bob Jones University v. United States. The White House wanted to oppose the Internal Revenue Service policy that denied tax-exempt status to institutions that discriminated by race. When Solicitor General Rex Lee recused, the task of signing the brief fell to Wallace. Wallace did so, but added a much-noticed footnote indicating that he did not agree with the position stated in the brief. Looking back, Wallace says he does not want to revisit the Bob Jones case, except to say that “there can be a great danger when we, the government, make ourselves the issue.” He adds, “Our relationship with the Court has to be built on the confidence that we are operating in good faith. That can be torn down quickly.” Wallace recalls that a while ago, in a conversation with Justice Sandra Day O’Connor, he related a comment once made to him by a Justice Department official. “This official told me, ‘The trouble with you is that you think you work for the Supreme Court, not the administration.’ Justice O’Connor looked at me and said, ‘Well, you just go right on thinking that way.’ “ Wallace did just that, though he says that both he and O’Connor knew that he did not literally work for the Court. “Of course, you advocate the government’s position,” he says. “But there are times when it is necessary to bring things to the attention of the Court, whether it helps your case or not. And that is what I did.” This piece was first published as Tony Mauro’s “Supreme Advocacy” column in the May issue of The American Lawyer.

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