For Supreme Court advocates, a rescheduled oral argument is a little like a rained-out baseball game, says Kannon Shanmugam of Williams & Connolly.
“It kind of feels like I’m sure it does for baseball players when their games get rained out, although they may be more used to that happening than we are,” he said, adding, “It’s kind of a new experience.”
Indeed. The Supreme Court on Thursday will hold a rare rescheduled oral argument session courtesy of Hurricane Sandy. The justices announced on Monday the closing of the court building on Tuesday and the rescheduling of that day’s two cases for Thursday morning.
The last time the Court held a Thursday session was not for arguments but for issuance of the decision in the reargued case of Citizens United v. FEC on Jan. 21, 2010.
Shanmugam is one of the lawyers getting the extra time to prepare for his argument in Bailey v. U.S., which asks whether police can detain a suspect in connection with a search warrant when the suspect has left the location of the search. He is representing the criminal defendant.
The former assistant to the solicitor general was in his D.C. office on Monday morning as the Frankenstorm was revving up. “I was fully prepared to spend the night down here and head up to the Court the next morning,” he recalled. “I had a room reserved at a hotel nearby. I was in our conference room making last-minute preparations when I got the notice.
“The Clerk’s office is just wonderful and had done a great job of staying in touch through the weekend,” he added. “The plan was to go ahead with arguments but stay close to phones and email. They gave us the message [Monday] morning and I packed up and went home.”
Shanmugam did not have far to travel to his northern Virginia home. That was not the situation for Stanford Law’s Jeffrey Fisher, counsel in Chaidez v. U.S., raising the issue of the retroactivity of Padilla v. Kentucky. The latter ruling required lawyers to advise their clients of the immigration consequences of a guilty plea in order to provide effective assistance of counsel under the Sixth Amendment.
Fisher flew into D.C. from the West Coast last Thursday night. “My usual routine is to do a moot court here on the Friday before the argument and then spend the weekend hunkered down, preparing,” he said.
Fisher said he didn’t realize until Friday afternoon that the hurricane was coming and was considered serious. He received an email from the Supreme Court clerk’s office on Monday morning checking his whereabouts and availability if his argument had to be rescheduled. About an hour or so later, the Court notified him of the new schedule.
“It feels funny,” he said. “I have something of a routine for preparation which is kind of designed to peak at a certain time. I basically woke up Monday morning prepared to do my last day routine. Obviously this threw that off, but the Court had to do what it had to do.”
The only real inconvenience, he added, is personal. “I had been very excited to be home with my two daughters for Halloween,” he explained. “They are in the first and fourth grades, and it’s a special day for them, but I think it hurts us more as parents because we think it’s one of those special moments. Obviously in the bigger picture of what people are dealing with, I shouldn’t complain.”
In the final stages of preparing for an argument—the last day or two—Shanmugam said, “You’re not spending that time cramming but thinking about the major issues in the case.” The rescheduled argument, he said, is “a little bit different, but as is always the case, it will run smoothly as if the storm never happened.”
Marcia Coyle can be contacted at email@example.com.