Is there a right way or a wrong way for an advocate to tell a U.S. Supreme Court justice that he or she is wrong during oral arguments?
Arnold & Porter Kaye Scholer‘s Lisa Blatt drew raised eyebrows last week when she told Justice Elena Kagan she was “fundamentally wrong in several respects.” When Kagan pressed her—”fundamentally wrong?” she asked—Blatt responded: “Well, it’s factually wrong.”
“Factually and fundamentally?” Kagan responded, drawing laughter. Kagan took the correction with her trademark good humor and perhaps also because she is familiar with Blatt’s own forceful style as a veteran advocate.
But is that singular moment something a Supreme Court advocate can anticipate and prepare for? How should you tell a justice he or she is wrong?
When Carter Phillips stepped down as chair of Sidley Austin, his partners collected a series of exchanges between him and various justices where Phillips said: “That’s wrong, your Honor.”
“There were four or five of them strung together,” Phillips said in an interview. “So you don’t plan for a justice to be wrong, but you know your case with absolute confidence and when a justice says something that seems incorrect, you say it. Probably does not need an adjective.”
David Frederick of Washington’s Kellogg, Hansen, Todd, Figel & Frederick bluntly said, “Wrong” to Chief Justice John Roberts Jr. when he described Frederick’s theory of an antitrust violation in the big consumer case against Apple Inc.
Those uncomfortable moments are most likely to arise when the briefs show that the parties in the case are “two ships passing in the night,” Frederick said.
“You really feel like the other side is on a different planet with their argument and your view of what’s really going on is so different.” he said. “That’s when the possibility for this sort of misperception is at its highest.”
How you tell a justice that he or she is wrong sometimes depends on the justice, and there’s no one path for what words to use. Some advocates cushion the response with the preface, “With all respect.” Others avoid “wrong” and substitute for that harsher word, “I disagree, your honor.”
Faced with one of Justice Stephen Breyer’s famously long questions at the end of which he urged Williams & Connolly partner Kannon Shanmugam to “say I am wrong,” Shanmugam smoothly replied: “Well, I’m not going to say you’re wrong, Justice Breyer, but I will address what are really the three parts of your question.”
The late Justice Antonin Scalia required a certain approach by advocates.
“I recall a number of exchanges with Justice Scalia where I would say that’s not correct or that’s just wrong,” Frederick said. “You had to be direct with him. He was one who respected that. You had to be strong to say, ‘I don’t think that’s right.’”
Frederick said it’s important to correct any misapprehension a justice might have about an important issue in the case “as quickly and succinctly” as possible.
“The compression of time at an oral argument and the intensity of the exchanges can sometimes cause an advocate to be more direct than one would be in a normal conversation,” Frederick said. “You’ve got to get to your point or else it just gets lost in the whole moment and momentum and the point you’re trying to make just evaporates.”
Blatt, meanwhile, told The National Law Journal she would have picked different words had she a chance to do it over.
“I fundamentally and factually regret using that phraseology,” Blatt said.