It will be déjà vu all over again March 27, when solicitor general Donald Verrilli Jr. squares off against former SG Paul Clement at the Supreme Court on same-sex marriage — exactly one year after they opposed each other in the Affordable Care Act cases. What hot-button issue will they be back for next March 27?
The two-week argument cycle beginning Monday will be dominated by same-sex marriage issues in Hollingsworth v. Perry (the Proposition 8 case) on March 26, and U.S. v. Windsor (the Defense of Marriage Act case) on the 27th. A number of other cases, including some that might bring back bad memories for the justices, are also on deck.
But first, here is a rundown on who will argue the same-sex marriage cases: as expected, Charles Cooper of Cooper & Kirk will speak first for the proponents of Prop 8 for 30 minutes, and Gibson, Dunn & Crutcher’s Theodore Olson will go next for 20, representing same-sex couples who oppose Prop 8. In an unusual pairing, Verrilli will speak for the rest of Olson’s half hour, also arguing against Prop 8. A total of one hour is devoted to the case, and it will be the only one argued March 26.
The next day, 110 minutes have been allotted for the Windsor case. The first 50 minutes will focus on the jurisdictional and standing issues in the case. Harvard Law School professor Vicki Jackson, appointed by the court to argue against jurisdiction, will go first for 20 minutes. Deputy SG Sri Srinivasan will argue next for 15 minutes, in favor of jurisdiction, and Clement will argue also for 15 minutes that his client, the Bipartisan Legal Advisory Group, can participate. Clement will then switch gears and argue the merits by defending DOMA for 30 minutes, followed by Verrilli and then Roberta Kaplan, the lawyer for Edith Windsor, who is challenging DOMA. They’ll have 15 minutes each. Both Jackson and Kaplan will be arguing at the high court for the first time.
Some lower-profile cases being argued in the next two weeks will resonate with those who remember some of the court’s worst oral arguments in modern history.
In Sebelius v. Cloer, the issue will be whether lawyers’ fees can be awarded to petitioners under the National Childhood Vaccine Injury Act when their petitions were deemed untimely. In 1995 the court decided another vaccine liability case, Shalala v. Whitecotton. During oral argument, Robert Moxley, the lawyer for the claimant, was upbraided by Chief Justice William Rehnquist for contradicting himself and seeming unprepared. "How can you stand up there at the rostrum and give these totally inconsistent answers?" Rehnquist asked Moxley. When Moxley said he did not mean to confuse the court, Rehnquist shot back, "Perhaps you haven’t confused us so much as just made us gravely wonder, you know, how well-prepared you are for this argument."
Moxley’s clients fired him the next day, and he later lost the case, 9-0. After the argument, Moxley was asked by this reporter for his reaction to the drubbing. "I felt like I dropped out of a tall cow’s ass," he answered. Asked to explain the metaphor, he said, "The taller the cow, the bigger the pile."
Moxley, a solo practitioner in Cheyenne, Wyo., who still represents vaccine claimants, will be back at the counsel table on Tuesday as part of the legal team for claimant Melissa Cloer. But Moxley won’t be arguing. Instead, Robert Fishman of Ridley, McGreevy & Winocur in Denver will be at the lectern.
On Wednesday the court will hear arguments in Horne v. Department of Agriculture, the latest in a series of challenges to government food marketing programs that require growers or processors to pay fees or take other actions to support advertising or price protection strategies. Some have been challenged as violations of the First Amendment rights of growers, but Horne is a Fifth Amendment takings case involving a government program to maintain prices for raisins.
Stanford Law School professor Michael McConnell, a former federal appeal judge and expert on agricultural marketing programs, will argue on behalf of raisin handler Marvin Horne. He almost argued a 1996 case involving a marketing program for California tree fruit, Glickman v. Wileman Brothers. Some growers had hired him to appear before the high court, but Thomas Campagne, who had handled the cases in earlier stages, refused to give up the argument. The court clerk tossed a coin and Campagne won, ultimately giving a bombastic presentation that left justices sputtering in disbelief. Some clients later sued Campagne for the unusual tort of failure to refer the argument to a specialist, but it did not succeed.
Tony Mauro is Supreme Court correspondent for The National Law Journal, a Recorder affiliate.