Last week’s same-sex arguments in the Supreme Court featured several veteran stars of the high court bar at the lectern. But a first-timer achieved star status in the eyes of many observers.
Harvard Law School’s Vicki Jackson was appointed by the justices to argue that the House of Representatives’ Bipartisan Legal Advisory Committee lacked Article III standing in U.S. v. Windsor, a challenge involving the federal Defense of Marriage Act (DOMA). She also was tasked with making the argument that the Obama Administration’s agreement with the lower appellate court that DOMA is unconstitutional deprived the justices of jurisdiction.
Jackson, a federal courts scholar, struck the perfect tone of authority, clarity and expertise. While some did not always agree with what she said, the justices were rapt in their attention and respectful in their questions. Observers also were engrossed, including Solicitor General Donald Verrilli Jr., sitting to her right, who rarely took his eyes from her as she argued.
"If I could go hear her lecture every week for the rest of my legal career, I’d be happy," said Ruthanne Deutsch, senior counsel in the D.C. office of Akin Gump Strauss Hauer & Feld, and Jackson’s former federal courts student,.
Shortly after Jackson was appointed by the court, Deutsch—a graduate of Georgetown University Law Center—sent a congratulatory message to her former teacher and offered to speak with Patricia Millett, head of Akin Gump’s Supreme Court practice, if Jackson wanted support from a law firm. After hearing recommendations from others, Jackson chose Akin Gump.
Akin Gump was counsel on a brief earlier in the term in a case where the justices had appointed Harvard’s John Manning as counsel, recalled Deutsch. "I noted he had coordinated with lawyers from Kellogg Huber," she said. "When I clerked for Justice Ginsburg in 2007-08, there were a few appointed amici but they were in private practice. Vicki had wonderful RAs at Harvard, but it makes a difference to liaise with someone with an active Supreme Court practice. I cannot understate the value [Millett] brought to this case.
"Mike Small in our Los Angeles office played a big role as well," she added. "He was at the [Office of Legal Counsel in the Department of Justice] for a long time and he knew a lot about the Article II issues. Article II concerns were underlying a lot of what the justices were troubled with in the executive branch’s position." Deutsch herself also worked on the briefs and argument preparations.
Jackson, who joined the Harvard faculty in 2011 after 26 years on the Georgetown faculty, declined interview requests before and after the arguments. "I think she’s really not used to being in the spotlight," suggested Deutsch.
Although the DOMA case was Jackson’s first high court argument as well as her first appearance in any courtroom in at least a quarter of a century, she had done trial and appellate work for about a decade as a partner in Rogovin, Huge & Lenzer before entering academia. "She told me her favorite type of things were TROs (temporary restraining orders)," Deutsch said. "For me, that’s the world’s worst nightmare. I think she likes that adrenaline."
For Millett, the case’s jurisdiction and standing questions were her federal courts class all over again. "Federal courts was my favorite class in law school," said Millett. "The questions in the case were so incredibly important and novel—the chief justice called them ‘unprecedented.’
"We were told what the answers were, but we just had to figure a way to get there. Thinking through these really hard problems together, she was just so collegial. It was a wonderful process to be involved in, even if everybody else thought we were a speed bump in the road (to reaching the merits)."
Other briefs in the case argued that INS v. Chadha, involving a one-house veto of executive action, decided the questions, noted Deutsch, adding, "We must have read Chadha a thousand times collectively."
Millett said that given Jackson’s expertise in this area, her own role was more to apprise the scholar of the mechanics of Supreme Court arguments, for example, saving time for rebuttal. Akin Gump also held one of Jackson’s three moot courts by bringing together Supreme Court practitioners. Jackson also did moot courts at Harvard and at Georgetown’s Supreme Court Institute.
"Even at her first moot, she gets to the podium and just has this presence and the perfect tone for an amicus, thoughtful and sincere," said Millett. "I just sat there and thought, ‘Wow.’"
"In terms of the briefing, we had to wrest the brief from her hands for the printer," recalled Deutsch. "There was always something she wanted to do to make it better."
The weekend before the argument, Jackson, Millett, Deutsch and Small were emailing back and forth questions and answers in a document that grew to at least 50 pages. Two nights before the argument, Jackson had a seder at her home. The next day, the day before the argument, Jackson was in D.C. preparing at Akin Gump with Millett close at hand.
"They’re so different in style," said Deutsch. "Pattie before argument doesn’t want to take in new information. She is worrying about saying what she knows exactly right. Vicki before argument is still rereading cases, taking in new information. Vicki is a very deep thinking academic and Pattie is a very shrewd litigator, so I knew it was a match made in heaven."
Millett noted that before she did her own first Supreme Court argument, she had done a number of appellate court arguments. "I didn’t have to do my first in a courtroom packed with people and others waiting for transcripts. She was remarkably composed. I was there right next to her and there were no knees knocking."
After the arguments, Jackson received kudos from lawyers in the solicitor general’s office and former Solicitor General Paul Clement of Bancroft, who represents the House GOP leaders in the case. She then went to lunch with her family, a number of whom are lawyers.
"She had grappled with some hard stuff and figured out a way of framing the case," said Deutsch. "What the justices do with it, who knows? Whatever they do, I think it’s going to be one of the major Article III opinions."
Marcia Coyle can be contacted at email@example.com.