Donald Verrilli Jr. and Paul Smith, who co-chair Jenner & Block’s appellate and Supreme Court practice, were once described as the “dynamic duo” by an admiring rival, Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber.
The duo may have gotten a drubbing at the Supreme Court last week.
Both went before the justices to wage high-profile, pro bono, uphill battles against controversial state practices — in one instance, Kentucky’s lethal-injection protocol for capital punishment, and in the other, Indiana’s tough voter ID law, which requires voters to present government-issued photo identification at the polls.
In both cases, the tough questioning from the bench and the presentations of their opponents led many commentators afterward to predict that both Verrilli and Smith will get clobbered when the Court rules. Verrilli, who argued on behalf of two Kentucky inmates in Baze v. Rees on Jan. 7, went up against Englert. And Smith, arguing for the Indiana Democratic Party in Crawford v. Marion County Election Board on Jan. 9, may have fallen victim to the Court’s increasing distaste for facial challenges to laws that have not yet taken effect.
As the dust settled Thursday, Legal Times Supreme Court correspondent Tony Mauro debriefed both lawyers in a round-robin e-mail interview.
LT: As the week ends, how are you feeling about the way your arguments went? Queen Elizabeth talked about her “annus horribilis.” Was this a horrible week?
Smith: We certainly didn’t think of it as a horrible week. We got to argue in the Supreme Court in two important and high-visibility cases. When you’re a Supreme Court litigator, you live for these weeks.
Verrilli: I think it is fair to say that for both Paul and me, it was a real privilege to be asked to take on these cases once the Supreme Court had granted certiorari. Neither of us was under any illusion that we would have an easy ride, but cases such as these are important opportunities to uphold the values of our firm and of the profession.
LT: Do you think media analysis of the arguments (present company included) was premature in predicting victory for both Kentucky and Indiana? If so, what did we miss?
Smith: I do think the media predictions that the Indiana law will just be upheld were overstated. Justice Kennedy is likely a key here (great insight there), and he asked twice whether there wasn’t some way to find a middle position, striking down the most onerous aspects of the very strict Indiana photo ID law while leaving it partially in place. Moreover, while there was some interest in saying we made a mistake in attacking the law facially, rather than as applied, even if the Court goes in that direction they could still send the case back for consideration of the burdens on particular classes of voters and for crafting of relief for them.
Verrilli: With respect to the outcome in Kentucky, I think many of the justices seemed to be troubled by affirming the three-drug approach to lethal injection in the absence of a record reliably establishing that the method poses no significant risk of torture as compared to other possible approaches (such as a single drug).
LT: You’ve both had uphill arguments before in the areas of law involved this week (capital punishment and elections). Going in, did you anticipate how tough the questioning would be, especially on issues like factual record and evidence of harm?
Smith: I’d say we did anticipate questions about the extent of the record and did our best to show that the records were sufficiently complete to justify remedies preventing future harms. In my case, for example, I focused on all the evidence we had put in showing how difficult it can be to obtain a photo ID or license if you don’t have one and you don’t have a certified birth certificate. But of course when you argue appeals you are always wishing the record was more complete in one way or another.
Verrilli: I agree with Paul.
LT: Did you talk to each other for encouragement during the preparation and afterward? And did you see each other’s arguments?
Smith: We actually were judges for each other at moot courts during the prior week. I had planned to be at Don’s argument in the lethal-injection case on Monday but came down Saturday with the flu-fever, sore throat, etc. — so I was still recovering on Monday.
Verrilli: I was in the lawyers’ lounge [at the Supreme Court] for Paul’s argument.
LT: How do you decompress after tough arguments like the ones you had this week?
Smith: Don helped me decompress with some pasta and a glass of wine at Tosca! We also had a little reception later on Wednesday at the office so everyone could get together and celebrate having two important cases in the firm in the same week.
LT: And how do you psych up beforehand? A lucky tie? Maureen Mahoney of Latham & Watkins eats a doughnut.
Smith: I’ll let Don handle the psyching up. He’s got more superstitions.
Verrilli: I am not going to give away too many of my secrets, but I will say that I do have a special tie I wear for arguments. It was a tie that [former Jenner & Block partner] Bruce Ennis used to wear when he argued, and his widow, Emily, very graciously gave it to me as a memento after Bruce passed away [in 2000]. I always wear that tie when I have an argument at the Court, even though it is getting a bit frayed.
LT: What’s it like at the office when two partners have tough oral arguments in the same week?
Smith: It caused quite a buzz. But they leave you alone in the final day or two. Or you have to go hide!
Verrilli: This week was a really important one for our firm. We both received a tremendous amount of encouragement from our colleagues here in D.C. as well as those in Chicago and New York. As Paul mentioned, we had a wonderful reception Wednesday evening to thank our colleagues for their work and their support. It provided a great opportunity to communicate to our young lawyers that this kind of work is a very important part of what we are about.