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In the term that ended June 29, the Supreme Court announced landmark decisions on issues ranging from the words “under God” in the Pledge of Allegiance to the rights of enemy combatants in the war on terrorism. On July 14, Legal Times held its third annual Supreme Court review, bringing together five lawyers who argued cases before the Supreme Court during the term just ended. They discussed the decisions, strategies, and oral arguments that shaped the term. The discussion was moderated by Tony Mauro, Supreme Court correspondent for American Lawyer Media and Legal Times . The event was sponsored by West Group and took place at the Georgetown University Law Center. Participants were greeted by Ann Pelham, publisher of Legal Times , and by Caroline Sattari, West’s regional manager for account management for Washington, D.C., and Maryland. What follows is a transcript of the discussion, edited for length, clarity, and space. � The Editors
PARTICIPANTS •�Moderator: Tony Mauro, Supreme Court correspondent, Legal Times and American Lawyer Media • Miguel Estrada, partner, Gibson, Dunn & Crutcher: Argued Aetna Health Inc. v. Juan Davilla/ CIGNA HealthCare of Texas Inc. v. Ruby Calad, March 23, 2004 (for petitioner) • Thomas Hungar, deputy solicitor general, U.S. Department of Justice: Argued Alaska Department of Environmental Conservation v. Environmental Protection Agency, Oct. 8, 2003 (for respondent); J. Elliott Hibbs, Director, Arizona Department of Revenue v. Kathleen M. Winn, Jan. 20, 2004 (for petitioner); and Republic of Austria v. Maria Altmann, Feb. 25, 2004 (for United States, as amicus curiae) • Barbara McDowell, staff attorney, Appellate Advocacy Program, Legal Aid Society of D.C.: Argued Olympic Airways v. Husain, Nov. 12, 2003 (for United States, as amicus curiae) and Household Credit Services v. Pfennig, Feb. 23, 2004 (for United States, as amicus curiae) • Michael Newdow: Argued Elk Grove Unified School District, et al. v. Michael Newdow, March 24, 2004 (for respondent, pro se) • Jay Alan Sekulow, chief counsel, American Center for Law and Justice: Argued Gary Locke, Governor of Washington v. Joshua Davey, Dec. 2, 2003 (for respondent)
TAKING ON THE PLEDGE

Tony Mauro: Mike Newdow, you defied all the advice, you argued the Pledge of Allegiance case Elk Grove Unified School District v. Newdow yourself, and you did very well at it by all accounts. Given the outcome [the Court ruled that Newdow did not have standing to bring the suit on behalf of his daughter because he lacked sufficient custody], do you have any second thoughts about the argument? Was there anything you could have argued differently, or do you think the Court was so eager to duck the merits of your case that there really was nothing you could do?

Michael Newdow: That’s a tough question. None of us know what is in their minds. I think that probably they were pretty intent on not answering this question at this time, especially being an election year. So I don’t think there probably would have been anything I could have done. One of the things that people spoke of was the fact that, since I was the party and because of the family law aspects that, you know, I was a loose cannon and that bringing in the family law would hurt me. And I did shy away from that, although I didn’t want to discuss it anyhow, because I didn’t think that was really a huge part of the case, but the Court did. So, I guess, in retrospect, I probably should have addressed that more. Especially Justice [Anthony] Kennedy, right at the beginning of the argument, said, well, you are making your daughter bear the brunt of this. And I remember when I got that question thinking about a billion things through my mind, and I have a number of answers now that I don’t know if they would have helped or hurt, but I didn’t answer it the way, a way I could have, at least. Mauro: But do you think the way the Court came out on it, was it really preordained in a sense? Newdow: To me it was. I mean, the facts of the case � my daughter lives with me 10 days a month. I’m a full dad. And she is told every day that I’m wrong with regard to my religious beliefs. That’s clearly a harm. And the Court didn’t say I didn’t have Article III standing. They just made this thing with this prudential standing saying because it involves family law, we’re not getting involved. It seems, you know, somewhat disingenuous. This case, you know, had nothing to do with the custody orders. No matter what they ruled, it had no effect either way as a result of the custody orders or as an effect on the custody orders. And yet they said for prudential reasons they are staying � shying away. So I think they were intent on not ruling. Mauro: Jay Sekulow, you filed a brief in the case against Mike Newdow. What are your thoughts on how it came out?

Jay Sekulow: First, I think Michael did a great job in arguing it. I don’t think there is anything he could have � you always look back at every oral argument and say, well, if I would have said this. The fact is most of us that do oral arguments know that the oral argument is important. And I don’t want to say that it is not. But the briefing and the issues that go before it are really the bulk of the case. Michael and I suffered from the same problem this term with those cases. And that is, we both had victories with the 9th Circuit Court of Appeals, which is not something � that is not something that is usually successful. In fact, when [then Solicitor General] Ted Olson and I argued Josh Davey’s case, there were two cases decided the day of our argument. Of course, the Court gives us summaries at the beginning of the session that day. They were both out of the 9th Circuit and they were both reversed unanimously. So we were zero and 18 going in. Mauro: And in your case, Locke v. Davey, you went into it, except for the 9th Circuit factor, with a pretty good expectation that you would have a good shot at it. Why did you lose? [The Court ruled that Washington state could design its college scholarship program so as to prevent state funds from being used to train ministers.] Sekulow: Two reasons. I think when certiorari was granted in the case, since we had prevailed below, I assumed, quite frankly � we had an uphill battle at that point. I did not think the vote would be seven to two, however. I thought it was a five-to-four case with Justice [Sandra Day] O’Connor being the key vote. But interestingly, the weekend before the oral argument, or maybe it was a few days before the oral argument, I went back and listened to a lot of the free exercise cases � this was a free exercise case; it was not an establishment clause case. And in listening to a lot of those transcripts, reading the transcripts, listening to the tenor of the questions from the justices � the Court has not been overly receptive to the free exercise clause. And as soon as I got up to start, Justice O’Connor asked me a question which came up in a number of my moot courts, which wasn’t a difficult question. She said that this was a voucher case, but you are saying it is not a voucher case. And I tried to push her back a little bit on that to see what kind of read I got. I got a very hostile, curt response, quickly. My theory on the arguments is this. I have had arguments that have gone really well and have lost really significantly in the case. I have had arguments that haven’t gone particularly great and have won. The Court, I think on the religion cases, it is not easy for any side right now. They are hard. You can’t just peg it. There is not a clear line of jurisprudence there. Mauro: You also argued more successfully in the McConnell v. FEC case against a section of the McCain-Feingold campaign reform law that prohibited campaign donations from minors. It was the only major part of the law that was struck down on First Amendment grounds. Sekulow: There were a lot of questions in about 10 minutes. I think I had 24 or 27 questions. And I would have never thought that we would have won unanimously, because if you read the first 118 pages of the opinion [upholding the law] you would say, well, you lose, too. It is hard to judge. Mauro: Mike, what were your thoughts about Locke v. Davey? Newdow: I wasn’t wild about the chief justice’s opinion. I wouldn’t have gone that way. I think that it came out with the correct result, being somebody who believes that there should be strict separation of church and state. To me, it goes back to the memorial [and] remonstrance by Madison where they said � the whole issue was, can you fund a teacher of the Christian religion. And our Constitution is based on the idea that you can’t. DEBATING DUE PROCESS Mauro: Miguel, let’s talk about the terrorism cases, Rasul v. Bush, the Guantanamo Bay case, and Hamdi v. Rumsfeld and Rumsfeld v. Padilla, the enemy combatant cases. [In all three, the Court said the detainees were entitled to more due process than the government wanted to give them.] Do you see that there was much of a silver lining for the government, or was it as big a defeat for the executive branch as most people portrayed it?

Miguel Estrada: Both. You can forgive the government for going into the cases and thinking that the main cases � the Guantanamo case and the Hamdi case � were sort of a slam dunk for the government based on existing case law. Each case had at least one Supreme Court case that seemed to be very closely analogous to the situation at hand. Both of them involving an actual shooting war and people locked up and in one case executed with very minimal process. With respect to the Guantanamo case, the Court in 1950 had dealt in a case called Johnson v. Eisentrager with what to do when all of these people that were in a base in Germany after the war sought writs of habeas corpus in the U.S. The Court in 1950 said very unequivocally this is not the business of the U.S. courts. Our Constitution doesn’t reach there. These are aliens. They are being held in a foreign country. All sorts of horrible things would happen if judges would have the effrontery to think that this is their business. So you know, if you are the solicitor general and you have Johnson v. Eisentrager and you have the Gitmo case where you are dealing with aliens who were captured in the Middle East, they are not U.S. citizens, they are being held in what we mostly think is a foreign country � Cuba � you would say, well, I am in pretty good shape. The government lost the Guantanamo case, six to three. So that case, it seems to me, has very little silver lining. Mostly because the Court refused to say what the consequences are going to be, what sort of process the executive has to give to people being held in Gitmo. So the Court basically said to the government, the federal courts will hear these cases. And we’re not telling you how it turns out. So it is a real problem for the administration. Mauro: What about Hamdi, the enemy combatant who was a U.S. citizen? Estrada: The Hamdi case is another case that came with a somewhat compelling case law to back the government’s arguments. In the Hamdi case, as you may recall, you were dealing with someone who it was almost universally conceded had been captured in Afghanistan fighting with the Taliban, who had grown up in the Middle East but was by birth a U.S. citizen. When the government found him, Hamdi was a U.S. citizen. They took him out of Gitmo or wherever else they had him and put him in a brig in South Carolina where he promptly sought habeas corpus. The 4th Circuit had said, well, no, you can’t do that because you are an enemy combatant. You were caught in Afghanistan with an AK-47 or whatever the gun was. And it has to be the case that even though you are a U.S. citizen, the president has authority during the conduct of a war to lock you up and give you a very summary process. And once again, during the Second World War, there had been a not completely dissimilar case called Ex Parte Quirin where the Nazis had sent a U-boat to Long Island. The men, by and large, were very hapless people who were promptly caught, but one of them, Haupt, was a U.S. citizen. And F.D.R. made sure that they all got a very summary military court-martial-type process. Most if not all of them were sentenced to death. They had an emergency application to the D.C. Circuit, and then to the Supreme Court. And it was one of those very quick cases in the Supreme Court that happened very rarely where the Court heard the argument at a special sitting, July 2nd or some such date in 1942. The next day it ssued an order saying, reasons to follow later. And in October of that year, after most of them were dead, out came this plum opinion that said, well, they are enemy combatants, and they are not entitled to any more process than they got. And, yeah, we do recognize that Haupt is an American citizen, but so what? So then again, you know, the government had case law to say, well, we have done this before. This is a war, too, et cetera. There I think the government did somewhat better. Because I think, based on the combination of the authority of the president as commander in chief and the resolution passed by Congress, a majority of the Court was willing to say that there was authority to detain these people. And the quarrel was about whether they were getting enough process. And the Court didn’t quite say this as openly as it might have based on Ex Parte Quirin, but it did say that it might be appropriate for the executive to give them the type of military process � that is, not a trial in an Article III court, but a military-commissioned trial. And that that might satisfy their entitlement to process. So if you read that into the Guantanamo case, it may be that the government can do that reasonably promptly and it will not be disruptive, though it is not necessarily obvious that the same will apply there. But the silver lining for the administration, which you asked about, is the fact that, reading the opinion closely, it should be something that they can fix not without inconvenience, but not with major disruption to the war effort. Mauro: But do you think, more symbolically, it was a major loss for the government to have the Court sort of push back the executive in time of war? Estrada: Yes. I mean, I think that the Court is essentially unanimous on the view that they should be running the country, including the conduct of war, but they just have vehement disagreement as to how the country should be run. Mauro: Barbara, what is your thought on these cases, and do you think that the detainees have won very much? Did they win much process or not?

Barbara McDowell: I think it remains to be seen exactly how much process the detainees are going to get. I think the Court’s decisions in these cases reflect its general faith in the federal judiciary to get it right. One could trace that to a number of recent decisions of the Court, including decisions of this term, in one of which Justice [Antonin] Scalia criticized his colleagues for their “never say never” jurisprudence, the fact that they have never wanted to rule out an entire category of claim as being beyond the competence of the federal courts. Some more-cynical observers might view that, trace that back to the Bush v. Gore case as well. In any event, I think that the plurality in the Hamdi case in particular recognized that there was a requirement of notice, an opportunity to rebut the government’s factual allegations. But Justice O’Connor in her opinion seemed to also accord significant deference to the executive in terms of what sort of process would be appropriate, including putting the burden of proof on the person challenging his detention. So I think we probably need to see this sort out in time. The Court didn’t actually reach the question of when and whether counsel had to be provided for these individuals, a significant question at earlier stages, but the government had allowed counsel to see them by the time the case got to the Court. Estrada: Yes, two days before, more or less. McDowell: Although I am not speaking for my organization either in these remarks, it was refreshing to see the principles that were articulated in the public benefits, civil legal services cases of notice, an opportunity to be heard, relied on at least by the plurality in Hamdi. INTERNATIONAL PRECEDENTS Mauro: Barbara, one of the cases you argued, Olympic Airways v. Husain, before you left the government is now listed on the Court’s international docket of the year � 10 cases or more where international law came into play. Of course, the Warsaw Convention, which was what that was about, has been part of the docket before. But there is this debate now going on about the appropriateness of international law considerations in the Court’s jurisprudence. What did you think about this term and how it will affect that debate? McDowell: It was very interesting this term to see a number of cases beyond the enemy combatant cases that involved some international law implications, whether it was a case about the scope of the antitrust laws when antitrust cases can be brought in United States courts even though they involve foreign conduct and foreign injury � the Court limited that � whether discovery can be obtained in the United States for proceedings in a foreign tribunal, whether violations that occurred abroad that the law of nations can be sued on in the United States. And my case, which involved the Warsaw Convention. The Warsaw Convention, among other things, governs the liabilities of airlines to passengers on international flights. This case involved a passenger who had an allergy to smoke. He was seated near the smoking section in those days when smoking was allowed on international flights. His wife asked several times that he be reseated because of his allergy to smoking, and the flight attendant basically said, don’t bother me, go away. At one time, she suggested that the man could move himself, but she also said that the flight was completely full. In any event, his allergy was particularly intense. He suffered an asthma attack and died during the flight. The question was whether this was the kind of incident that could give rise to liability against the airline. Under the Warsaw Convention, liability is triggered by an accident. The question was whether an accident occurred here. And perhaps in common parlance you wouldn’t think of what occurred here as an accident. In a more general sense, though, as the Court had defined accident before in the Warsaw Convention context as an unexpected or unusual occurrence, this would fit into that category, and that’s how a majority of the Court held. This was an unusual case in some respects in that it is one of, I believe, the five cases of the term in which Justice O’Connor dissented. She joined in dissent by Justice Scalia. And also unusually, it was Justice Scalia in this context who was chiding the majority for not relying enough on foreign law cases. Usually, he is the member of the Court who suggests that the Court shouldn’t be looking beyond United States borders. But in this case, he found that it was a somewhat different circumstance because a treaty was being construed. Estrada: I actually thought that the majority opinion could be readily harmonized with the foreign cases. There is a big difference between not taking affirmative action to warn about a condition that you might know about yourself and rebuffing somebody who knows about it and [is] asking for your help and saying “Don’t bother me,” and the person dies. So I actually didn’t think that this was one of his particularly powerful efforts. McDowell: This was the sort of argument in which you could almost see the justices realizing that they could be in a similar situation � because they do travel internationally, especially over the summer. And you could have the sense that they were wondering, well, what if I had a heart attack on a flight and I wanted the airline to land, to make an emergency landing, would there be liability if they didn’t. And those sort of questions perhaps percolating in their minds, somewhat distinguishable from the case where you involve a search on a bus or something like that where a justice probably wouldn’t be found. Mauro: Although in that bus case, U.S. v. Bond, a few years ago, Justice [Stephen] Breyer analogized the situation from a bus to an airline where fellow passengers would be feeling the luggage in overhead bins. So he made it a case that the justices could relate to. Sekulow: The international law development is a big issue. And there is a lot of discussion going on in legal circles and among a lot of lawyers about the growing influence of international law. My concern with it, and not in Barbara’s case particularly, but the reliance that you are sometimes seeing by the Supreme Court on the European Court of Human Rights. I have litigated two cases at the European Court of Human Rights. I will tell you that it is not the Supreme Court of the United States. They issue advisory opinions, basically, because no government really can be compelled to enforce their decision. I won a case against Greece on a free speech issue � I think it was 25 million drachmas � but you could never get it enforced. And the Court knows that when they are rendering these decisions . . . I have another one coming up, a religious liberties case out of Russia and the Salvation Army. And when you make an oral argument to them, all of us up here would appreciate this, you have to stay on your prepared text. They may interject a question. And it is rare. So you cannot deviate from your lecture, [which] is what it really is. And it is a different system. And the growing reliance on it without understanding the system, I think, is a dangerous trend. I think we have to be very careful about that. Mauro: How would you define the danger? What is wrong with having that cited? The justices themselves may know that it is a different court and they can take it with a grain of salt. Sekulow: Because the litigation process is so different. I mean, the way that issues are dealt with here in our system is so different than the way they are dealt with over there. And in our case involving the Salvation Army and the Russian Federation government where they try to make the Salvation Army liquidate because they were, I kid you not, a standing army � that was the argument they made � something got lost in the translation. Estrada: They do stand at street corners. Sekulow: Yes, they do. It is not that the law is wrong as it is developed. It is just the process is so different that reliance can be dangerous. McDowell: I also think there is a danger in just counting up how many foreign decisions you have on each side of an issue, because frankly, in trying to research the Warsaw Convention issues, we couldn’t be confident that we had found every decision in every language that might have come out on the subject. We could find the English language decisions easily enough. And the State Department looked around to see if it could find some others. But one can’t really have confidence that the courts have reached a consensus on an issue too often. Mauro: Tom, one of your cases was also on the international docket. What do you think about this debate? It sounds like there have been some good reasons cited just now for why we should be wary of international norms.

Thomas Hungar: I think that’s right. Although it is interesting, this term, as I see it, was a little bit of a departure. In recent terms, there has been a lot of concern expressed, as Jay and others were saying, about this reliance on international precedence in construing the Constitution. And this term the Court seems to have moved away from that. A legal realist or cynic might say it had more to do with the results the justices had decided to reach than any particular view on whether international law can or cannot be relevant. But, for instance, in the Warsaw Convention case that Barbara argued, the majority opinion has a footnote in which they start off by diminishing one of these foreign precedents, but then they say, basically it doesn’t matter because we don’t agree to the extent they would point in the opposite direction. In the case I argued, Austria v. Altmann, where the question was whether the expropriation exception to the Foreign Sovereign Immunities Act, which basically allows foreign sovereigns to be sued in U.S. courts for certain acts of expropriation of property even though foreign sovereigns are normally immune from that type of governmental action, the question was whether that exception, which was enacted in 1976, could be applied retroactively to conduct in the 1940s. And again, we in our brief, knowing that the Court in recent terms has been looking to international law, cited at some length to treaties and court decisions from foreign states which make very clear that foreign states don’t even recognize this exception and certainly don’t recognize the permissibility of retroactively changing the rules of sovereign immunity. But nonetheless, the Court had no difficulty reaching a result contrary to that that would have been reached in those foreign states. I guess just the one other case where something similar happened was in the Intel case, which had to do with international discovery. Again, there the foreign state, in that case the European Community, filed a brief and actually argued urging the Court not to reach the result it did, not to extend U.S. discovery laws to have an impact on this foreign proceeding. Notwithstanding that, the Court by a wide margin held that U.S. law would apply and that the discovery proceeding, the request for discovery there, could proceed. So relying on international law or the concerns of foreign states is an iffy question, at least. THE FATE OF FEDERALISM Mauro: Tom, the other cases you argued were, loosely speaking, in the federalism area. Some commentators have said that this term marked the end of the Rehnquist federalism juggernaut � or that maybe it has even gone into retreat. What do you think of that analysis? Hungar: I think it depends on your starting point. Commentators until recently have described the Rehnquist Court’s jurisprudence in the federalism area � that is, some commentators � as a federalism revolution. And if you believe that, then this term, to some extent the previous two terms, but particularly this term, is sort of a sea change. I count nine federalism cases of this past term, of which the states lost eight. And it is actually even worse than that for the states because the ninth case was one where the federal government was actually on their side, a somewhat unusual situation in a federalism case. So just on the numbers, it looks pretty bad. And some of those cases, at least, were significant. Probably the most significant was Tennessee v. Lane, which involved whether the Americans With Disabilities Act can be applied to the states notwithstanding their usual immunity under the 11th Amendment and principles derived therefrom. The Court by a five-to-four vote held that the 11th Amendment was no bar to that, to those kinds of suits in the particular context before it � that is, cases implicating the right of access to the courts on behalf of disabled individuals. The Court had two other 11th Amendment cases this term. And both of those were also resolved against the states. And I think it is probably the first time in the history of the Rehnquist Court that there has been a zero and three record for the state in the 11th Amendment area. By the same token, I think the predictions of the demise of the Rehnquist Court’s federalism agenda, if there was one, is also somewhat exaggerated. I think for the most part this is more of a course correction showing us the limits of how far Justice O’Connor is willing to go in defining the outer boundaries of federal power and preserving a role for the states. And I don’t think that it is a major change. Mauro: I would like you to give some sense of what it is like to be up there at the Supreme Court arguing a case. The most curiosity is probably about Mike Newdow because of the pundits who thought you probably shouldn’t have argued your own case. How did you prepare for it, not having done it before, and what advice did you get that you think was really bad and you either ignored or should have ignored? Newdow: First of all, let me say that although I did go to law school, I never went to a moot court or anything. And I didn’t know what an oral argument was until I argued at the 9th Circuit. So I didn’t know there was a clock or anything else and how it worked. But I got some good advice from Tom Goldstein. He is here, he’s a good adviser. And he said to go through the moot court system. So I did a lot of moot courts. I think one of the aspects of his advice was that by doing moot courts, the reporters would come in and see that I didn’t know what I was doing. So expectations were very low by the time I got there. Mauro: Do you wish you had rejected the advice that you got to not get into the family law issue? Do you think now that you should have spent time on it, since that’s what the Court spent most of its time writing? Newdow: Yeah. Well, I mean when I wrote my brief I was thinking, you know, I don’t even want to discuss family law. It is such a non-issue to me. Apparently, obviously, it wasn’t to them. But it may be, just as we were discussing before, that it was preordained that they were going to skirt the issue and so it didn’t matter what I did. It is a tough issue, the family law issue, especially in this case, because there is so much that isn’t on the record about what is going on, the whole way you lose legal custody. Family law, for those who have talked to me about this, where I’m really impassioned, is just this ridiculous system that shatters people’s lives and it is senseless. You will notice that I’m the reviled atheist, but for two years I was in the newspapers and you have never heard a single thing about what I did to warrant loss of any custody. So the question is, how much can you get into on that whole issue. And it is very hard, since that wasn’t before the Court, to have the discussion without having any of the data there to talk about. Mauro: There was one moment during oral argument where you said something and there was applause, which you don’t usually hear in the Court. And then the chief justice banged his gavel. Can you remember that episode and how did that feel? Newdow: The chief justice asked about Congress when it passed the act of 1954 where they stuck the two words “under God” into the pledge; was there any dissent? And I said, “No, it was passed without dissent.” He said, “That doesn’t sound very much like it was divisive.” I said, “It is, because no atheist can get elected to public office.” And so some people started applauding. And they were actually my friends. He threatened to clear the courtroom. Mauro: Jay, you had the unique pleasure � or maybe not so much pleasure � of arguing on the side of where there were five other lawyers, in the McConnell v. FEC case. How did that work, and was there much coordination between the five, including Floyd Abrams and Ken Starr? Sekulow: There was some coordination. The biggest aspect or the most significant thing was, we didn’t get a lot of time to know who was going to argue in what order or who was going to be granted oral argument. The government had the advantage of knowing how to divide the case up. I think there were 24 or 34 applications for oral argument submitted in the case, if you can imagine that. And this is a Court that generally doesn’t like more than two lawyers arguing, let alone eight or 24 or 34. We had won below, we were, again, one of the only provisions � the provision that I challenged was a portion of the bipartisan campaign finance act that prohibited minors from making a financial participation contributing to a campaign. So we filed our application for oral argument time, and it was granted. Ken Starr submitted on behalf of basically everyone. We carved out just 10 minutes. And then when they got to my section, it was either one of two things. They were so bored � not that the arguments were boring, but it was so technical, which section and subsection � and ours was just a plain straightforward free speech challenge. But I did 10 moot courts for that. I normally don’t, but I did 10. And I did 10 this particular time because I had never done a 10-minute argument before. I called my friends at the solicitor general’s office and asked them about 10-minute arguments, and they said, well, just assume you will get 30 minutes of questioning in 10 minutes. I usually in my cases generally have a difficult time getting Justice [John Paul] Stevens’ vote. He tends not to agree with my view � especially on the religion cases. But personally we get along. He is a delightful guy. He just doesn’t agree with my positions generally. And he threw out kind of an olive branch. And the olive branch was, if I don’t buy that money is speech, you would win under a liberty interest. Correct? Well, I had briefed that because I knew that was a potential issue. So I inserted that in a couple paragraphs in the brief. And I said yes, and I said, “We asserted that in a brief.” He goes, “You did.” At which point Justice Scalia said, “Well, Mr. Sekulow, I thought the answer to Justice Stevens’ question should be no and you answered yes. You have a free speech claim.” So I made a joke. I said, “Well, Justice Scalia, for you, the answer then will be no.” At which point Justice Stevens’ voice came in. He pressed his button and leaned in and said, “Mr. Sekulow, whose vote do you want more, mine or his?” I said, “I need yours, Justice Stevens, because his, I had.” I knew I had Scalia’s. I made a joke out of that, too, but never do it. I have only tried one planned joke. They never got it. And then I said I never would do it again. Of all of the cases I have argued � I have argued 11 � it was one of the most exciting experiences as a lawyer because of the caliber of counsel on both sides. But it was the most uncomfortable courtroom to argue a case in. It was very warm that day, if you remember. The air conditioning was not working very well and they had lawyers on top of lawyers. And the chief justice likes you to come from your seat, get up there, and argue. And Seth Waxman had to come from a second row, and tripped over somebody’s briefcase in the way. It was a mess. THE NEXT TERM Mauro: We also would like to look ahead a little bit at the next term. I think a lot of people are curious, Mike, if you plan further litigation on the Pledge [of Allegiance] or on any other issue, including the Court’s invocation of God as it begins its sessions, and whether you think you will argue at the Supreme Court again. Newdow: Tough question. The odds are overwhelming against me. But I will certainly try. I do plan on bringing the case again in the 9th Circuit for sure, and probably in some of the other circuits as well. I have other litigants. I have had a lot of people contact me saying, we’re interested in being litigants. Mauro: In your school district or elsewhere? Newdow: Actually in the Elk Grove Unified School District, also the Sacramento City Unified School and the rest of the 9th Circuit in Washington state, a lot in California and elsewhere. So I expect I will bring it up again. The question is: Will I win? Because if I don’t win, it is not going to get to the Supreme Court. Sekulow: There are four cert petitions pending right now on these various Ten Commandments displays. We’re filing one, and there is another one coming up. The circuits are completely in conflict. The circuit conflict is so significant, but the Court continues to try to not take those cases. I think I’ll have a difficult time. Michael thinks my side would do OK. Maybe he should argue that, and I should argue the Pledge or something. I don’t know. I think they are difficult cases, but there are so many of them coming up. I don’t know how much longer � the Court could probably put it up for another term. But after that, you could literally have every � a split right down the middle in these circuits on this. So those are coming. Mauro: Miguel, you are involved in a case that will be coming up next term involving one of life’s great pleasures. Estrada: Yes. It involves wine. It involves the weighty question of whether a state law that keeps you from buying wine on the Internet from the winery is a violation of the dormant commerce clause or whether Section 2 of the 21st Amendment, which seems to say that states get to do that, makes the statute OK. Our position is that the 21st Amendment governs and that the state laws are constitutional. And if your state doesn’t want you to get wine from the Internet, you’d better go to the wine store. McDowell: A more important issue, and one that I also worked on a lot while I was at the Justice Department, involves sentencing issues and the continuing implications of the Apprendi v. New Jersey case and this past term’s Blakely v. Washington case, which calls into serious question the constitutionality of the federal sentencing guidelines. Justice O’Connor, I think, in her dissenting opinion in Blakely predicted that there are something like a quarter of a million federal criminal sentences out there that could potentially be affected. Even since Blakely came down there has been a circuit split that’s developed between the 7th and 5th Circuits on the constitutional question. And the 2nd Circuit has taken the unusual course of certifying various questions to the Supreme Court about the constitutionality of the federal guidelines after Blakely. Estrada: The 2nd Circuit case was unusual in that it was a court of appeals telling the Supreme Court you deal with these questions. There is a federal statute that allows them to do that. But it was en banc and unanimous. Every judge in the 2nd Circuit signed on to this opinion, the last closing paragraphs of which basically say, this is really, really, really important. We really need an answer right away. And it wouldn’t be too bad if you cut your summer trips short and come home and deal with this. Hungar: Judge [Frank] Easterbrook, who dissented in the 7th Circuit decision striking down the sentencing guidelines, said, “Today’s decision will discombobulate the whole criminal law docket.” This is probably the first time that the word discombobulate has been used in an appellate decision. There is first the question of whether it does apply. And the government’s position is that it does not. That is, that the sentencing guidelines lines are constitutional because they are distinguishable from the Washington system that was struck down in Blakely. And obviously, if we prevail on that question, the problem is solved. But in the meantime, it is very confusing because we have circuits going in different directions and district courts going in different directions. In fact, in the District of Utah alone, four different district court judges have reached four different approaches to deal with Blakely. But there are something like 70,000 sentencings each year in the United States in the federal system. So obviously this is a case that � this is a question that hopefully will be resolved sooner rather than later. [Editor's note: On Aug. 2, the Supreme Court agreed to review, on an expedited basis, two cases asking whether the Blakely ruling renders the federal sentencing guidelines unconstitutional.] QUESTIONS OF BELIEF Audience Member: Many years ago I heard Rex Lee, at a panel such as this, being asked the question about whether if the president at that time, President Reagan, kept asking you to do things that you disagreed with, what was the proper reaction of the solicitor general. Mr. Lee said that he has to respect the president and if the president asked him to do something maybe once a year or on a very occasional basis, he would have to subordinate his beliefs and do what the president said. But if it was a continual type of thing, that he felt he would have to resign. If the solicitor general asked you to do a case that you didn’t believe in � how would you respond to the question that Mr. Lee responded to? Hungar: It hasn’t happened for me. So it is hypothetical. I think there is something of a tradition in the SG’s office, that if an assistant to the solicitor general, the line attorneys who do the real work of the office, that if an assistant is unwilling or uncomfortable to work on a case, there are 16 assistants and there is no reason why someone else can’t do it. It is not an issue that has come up in my experience. Usually it is just that someone is too busy. But I think that that tradition is pretty well understood. We’re lawyers. We don’t have the luxury of choosing what positions our clients are going to take in every case, although we have a bit more luxury in the SG’s office than a private practice lawyer does. But sometimes the decision by the SG or whoever it is is going to be different than the one we might have made. But as long as it is not something that we think is objectionable, we can’t possibly deal with it, we go ahead and do our job. Estrada: I would land in the same place. Audience Member: I guess you could say there are four kinds of advocacy that go on in the Supreme Court. There is oral argument. There is the party’s briefs. There are amicus briefs. And what the solicitor general does in some respects is read apart from those. Hungar: And the newspapers, you forgot that. Audience Member: But perhaps illustrated from experiences this term or otherwise, what are the panelists’ views on whether advocacy really matters or whether any of these particular forms of advocacy really matters. You know, you have said a lot today about how there may be swing votes on this Court. But someone like Justice O’Connor knows what she thinks pretty well, and knows how she thinks they’ll all go, to me. Does advocacy actually change the results of cases on a frequent basis, in your experience? Sekulow: I think that each aspect of the appellate process plays a role. There is no doubt, in my view anyway, that the brief is the predominant � is still the predominant role. But the last thing that they know about the case or hear about the case before they vote is generally the oral argument. I tend to think you could scare them in an oral argument. But you have also got to be honest. You take your position where it goes logically. That’s part of advocacy. You have to be honest with where the case goes. And I think the role of the amicus is important. We only get 50 pages, which seems like a lot but it is not. McDowell: I think what also can be important is what happened in the case below, how well the record is developed, how well issues were preserved. That can make a big difference when you are briefing a case in the Supreme Court to see what evidence you have, for example, to rely on. Hungar: I think it is easier to lose a case through poor lawyering than win a case through excellent lawyering. And the Supreme Court � in particular, some of the procedural issues if not handled wisely or well � can be a trap for unwary litigants. But I also think it is true that on merits questions the Supreme Court is probably less willing than most appellate courts to let the outcome of a case be determined based on the quality of the lawyering. They will, if necessary, do some of the lawyering themselves because they recognize they are deciding questions for the whole country, and they try to avoid having accidents of legal ability affect the outcome. Estrada: I think what Jay said, in about 90 percent of the cases you win or lose a case on the briefing of the case. The oral argument can be extremely helpful to confirm an inclination that a justice has to vote for you, or you can lose the case if you make the wrong calls and you don’t give them the assurance that they are looking for. Newdow: As a skeptic, I don’t know how anyone answers these questions. Because nobody knows what goes on. It is kind of the pro se you shouldn’t argue if you are pro se. I don’t know. Nobody has done the data. Maybe the pro se’s do better than everybody else. Audience Member: During the federalism discussion, you mentioned the Tennessee v. Lane case, which is the ADA case. And it was very narrowly worded, specifically to access to the courts. And I’m just wondering whether you think that it will stay very narrow like that or if this is a sign that they are going to really change what they have been doing in terms of state application of the Americans With Disabilities Act. Hungar: It is hard to say, is the short answer. The last term was the first time, at least in quite a while, that the Court had upheld a statute against an 11th Amendment challenge that dealt with the Family Medical Leave Act. Again, it may have been the same five-four divide, although I’m not sure about that, and then this term in Tennessee against Lane. But as you say, it was a very narrow decision, and the Court limited its analysis to the right of access to the courts, which is a right that has been recognized as fundamental in some sense. And so whether they will go beyond that to also uphold this provision of the Americans With Disabilities Act, which requires accommodation of persons with disabilities in public facilities, access to public programs generally, whether they will go beyond the right of access to courts and expand � uphold it more generally � obviously, they weren’t comfortable reaching out in this case to do that. But I’m confident that the issue will be coming up. McDowell: The Court’s opinion in that case does discuss some other kinds of access that seem of a same character as access to the courts. For example, access to voting places, access to government benefit offices, sort of in contrast, I think, to access to a government-owned hockey rink, which they talked about a couple of times. So one would hope, at least, that the decision can extend to those areas that are particularly crucial to citizenship or to one’s dealings with government. Mauro: Thank you very much, all of you, and thank you for participating.

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