Joshua Rosenkranz of Orrick, Herrington & Sutcliffe was in Washington, D.C. last Thursday and Friday getting ready to argue before the United States Supreme Court on Monday. He could have stayed in the nation’s capital over the weekend, but two things lured him home to New York City: date night with his wife on Friday and his annual duties as family Halloween-costume maker.
“I figured I’d just make the short trip back to D.C. on Sunday,” Rosenkranz told The Am Law Daily Wednesday.
By Saturday morning, with Hurricane Sandy poised to pummel the East Coast, that plan began to look shaky. When the so-called Frankenstorm finally did hit, it struck with a nearly unprecedented force that shut down cities, crippled transportation hubs, and left a trail of devastation in its wake. And while Rosenkranz was spared Sandy’s wrath, it did cause him some anxious hours.
Rosenkranz had been preparing for his argument on behalf of the petitioners in Kirtsaeng v. John Wiley & Sons since September, so he chose to dedicate all of Saturday to designing his children’s Halloween costumes: the oversized mouse head synonymous with the DJ Deadmau5 for his 13-year-old son, which Rozenkranz says was “deceptively difficult to make,” and a bird’s nest for his 11-year-old daughter. He didn’t have to worry about constructing anything out of the ordinary for his youngest: She always dresses up as a cat.
Anticipating storm-related delays, Rosenkranz—who originally planned to take a 5 p.m. train to Washington—had already moved his departure up two hours. But catching the 3 p.m. train didn’t seem so prudent when New York Mayor Michael Bloomberg announced at noon Sunday that the city would be shutting the subway system at 7 p.m.
“I tried to get another train but by then everything was sold out,” Rosenkranz says. “The most stressful piece of those few days was just not knowing if I’d get on that 3 o’clock train out of New York or not.”
When the appointed time came, Rosenkranz headed to New York’s Penn Station on Sunday afternoon, his wallet heavy with cash. “If my train was cancelled, I pictured myself offering someone $400 for their ticket,” he says. Fellow Orrick partner Lisa Simpson had her husband bring their car to Penn Station, just in case she and Rosenkranz had to go to plan B: driving the 230 miles to D.C.
In the end that wasn’t necessary. “Once I got on that 3 o’clock train and we started moving, I breathed a sigh of relief,” Rosenkranz says. “Frankly, it was not a possibility that we wouldn’t get there. We would’ve driven all night if we had to.”
While he was concerned about his own ability to get to the Supreme Court by Monday morning, Rosenkranz had no such qualms about the nine justices: “I was absolutely sure that the court was sticking with the schedule.”
But with Hurricane Sandy gaining force over the Atlantic, Rosenkranz couldn’t help but triple-check. On Sunday evening, after learning that the rest of the federal government was shutting down, that the D.C. circuit court was closing on Monday, and that President Obama had declared a state of emergency in Washington, he checked the Supreme Court website and emailed the merits clerk. The arguments, he was told, were still on.
At 4 a.m. Monday—Rosenkranz’s traditional wake-up time before oral arguments—he dialed the Supreme Court’s number. “A security guard always picks up, no matter the time,” he says. “They told me that, yes, the justices are coming in.”
Rosenkranz spent the next few hours in his typical pre-argument ritual, rehearsing his argument and repeating some of its finer points aloud. He and his team then hopped in taxis that had been called ahead of time to get to 1 First Street by 9 a.m.
A light rain was falling when the Orrick attorneys left their hotel. With the storm still bearing down, the city’s streets were virtually deserted. There were few cars and fewer pedestrians. Rosenkrantz says that by the time they arrived at the court a few minutes later, the drizzle had turned into a downpour.
The Supreme Court lived up to its reputation that morning, running like clockwork while the rest of the federal government was shuttered. “The courtroom of Supreme Court is like a sanctuary,” Rosenkranz says. “That really struck me on Monday. I was sitting there and it was so serene even though devastation was about to be wrought all across the Eastern Seaboard.”
Arguments in the Kirtsaeng case—which focuses on the issue of so-called gray-market goods and whether a copyright owner who authorizes the sale of a copyrighted work made abroad can forever block the resale of that work in the U.S—were scheduled for 11 a.m. They started on time and were over by 12:05 p.m., Rosenkranz says. Rain was still falling steadily when he and his team stepped outside. They wanted to dine at their usual lunch spot, Charlie Palmer’s, but it was closed due to the storm.
“I’m not necessarily a superstitious guy, but with arguments like these, I know what I want to do and in what order to do it. I want to peak at just the right moment. That’s why cancellation of the argument would’ve been so horrible; I would’ve had to go through my whole 4 a.m. routine these past few days not knowing whether or not I’d be arguing.”
After eating at the Hotel George with his team, Rosenkranz spent the rest of Monday in Orrick’s D.C. office and Monday night in a hotel across the street, which was able to maintain power as Sandy passed through the city. As of Wednesday afternoon, Rosenkranz was still stranded in D.C., unable to return to New York by train or plane.
“Who knows when I’ll get back to New York,” he says. One of Rosenkranz’s main concerns now is whether trick-or-treating will be rescheduled. “I’ll be damned if that Deadmau5 head is going to waste”