Visitors outside the U.S. Supreme Court on August 29, 2015. (Photo: Mike Scarcella/NLJ)
In the blizzard of questions and hypotheticals marking some arguments at the U.S. Supreme Court, a lawyer can misunderstand a justice and misspeak, usually self-correcting almost immediately. But sometimes, the sinking realization strikes later.
Just ask National Labor Relations Board general counsel Richard Griffin Jr.
On Oct. 3, the day after arguments in the new term’s biggest labor-employment challenge in recent years, Griffin sent a rare letter to the clerk of the Supreme Court to correct “an inaccurate response” he gave to a series of questions from Chief Justice John Roberts Jr.
His responses, he said in the letter, resulted from his misunderstanding of the chief justice’s questions. Griffin’s responses to Roberts showed disagreement with the lawyer who—sharing argument time—was on his side.
“There is no disagreement between the board’s and the employees’ position on the answers to those questions,” Griffin wrote.
The arguments were in a consolidated trio of cases asking whether workplace arbitration agreements that bar collective or class actions violate federal labor laws. Griffin, who was making his first high court argument, and Daniel Ortiz of the University of Virginia School of Law argued against Kirkland & Ellis partner Paul Clement and Principal Deputy Solicitor General Jeffrey Wall.
Throughout his argument, Griffin had consistently emphasized that employers could not demand as conditions of employment that a potential employee waive his or her right to concerted actions. He also agreed, in response to Justice Stephen Breyer, that the rules of whatever forum in which the employee sues—court or administrative—apply.
Roberts does not ask many questions during arguments. When he does, his questions are smart, difficult and sometimes a trap for the unwary. Roberts offered a hypothetical based on Griffin’s answer about the rules of the forum applying.
Roberts: “Let’s say the arbitral forum says—the rules of the arbitral forum say you can proceed individually, but you can—and you can proceed collectively, but only if the class represents more than 50 people. Is that alright under your theory?”
Griffin: “That’s a rule of the arbitral forum, and the employee takes the rules of the forum as they find them.”
Roberts: “So you have a right to act collectively but only if there are 51 or more of you?”
Griffin: “What—no, your honor. What you have an opportunity to do is to try and utilize the rules that are available in the forum without the employer intervening through a prohibition that’s violative of Section 7.”
Justice Anthony Kennedy: “No, the hypothetical—and the chief can protect his own question—the hypothetical is the contract says you have to have 50.”
Griffin: Oh, I understood—I’m sorry. I misunderstood.”
What followed was Roberts’s attempt to clarify the hypothetical and Griffin ultimately agreeing that if the employment agreement says an employee shall arbitrate in a particular arbitral forum that limits collective arbitration to 51 or more persons, that would be OK. When Roberts pressed the same hypothetical on Ortiz, the law professor said the employer could not insist on an agreement where the arbitral forum limited collective actions to more than 50 people.
Griffin, who’s soon leaving his post as general counsel, wasn’t reached for comment Wednesday.
Ortiz on Wednesday said he didn’t think Griffin’s letter to the court was necessary. “I think in the end, it was probably clarified at the argument itself by Justice Kagan’s intervention,” he said.
Kagan asked Griffin whether bringing a class action is itself concerted activity by a single named plaintiff. Griffin said yes, explaining that the board’s law is “if an individual takes action to initiate, to induce or to prepare for group action, that is concerted activity as understood under Section 7 [of the National Labor Relations Act.]“
Ortiz said there was never a difference of opinion between him and Griffin but just how they understood the question, which even Roberts acknowledged was confusing. “Dick thought the chief was assuming something when he wasn’t,” Ortiz said. “I assumed when the chief was asking it, he wasn’t predisposed in our case.”
Ortiz continued, “If you had answered the way Dick did to the way the chief justice was actually asking it, you were basically giving up the right to file collective, joint actions for any number between two and 50. You were saying regardless of what alternative forums existed, the employer could bind the employee to the rules of the forum and they could do the bad work rather than the employment agreement.”
Ortiz told Griffin it was not his fault for the confusion. “Dick feels just terrible about this,” he said. “His term is up at the end of this month and well, he just feels terrible.”
William Suter, former clerk of the Supreme Court, remembers getting one letter during his tenure from a lawyer seeking to correct an oral argument statement. “I sent the letter from counsel to the chief and he transmitted it to the [private] conference [of the justices],” he said. “Counsel’s letter and the clerk’s memo were filed in the permanent case folder. The transcript was not changed.”
While rare in the Supreme Court, lawyers sometimes do send letters correcting their misstatements in arguments to the lower courts. In 2014, the Justice Department, for instance, sent such a letter to the U.S. Court of Appeals for the Ninth Circuit. The letter told the court that government counsel made an “inadvertent misstatement” during oral arguments by saying that companies receiving national security letters were free to disclose that fact.
In a footnote in his law review article on oral argument in the Supreme Court, Mayer Brown’s Stephen Shapiro said that on “rare occasions,” a lawyer might realize after arguments that he or she made an “improvident concession” on a major point. In that situation, he said, counsel should send a “concise letter” to the justices through the clerk, with 10 extra copies, referring to the question and clarifying the response.
“Needless to say, there is no assurance that the justices will honor this kind of retraction,” he wrote.