The Supreme Thrill
Want to know what it's like to participate in the legal world's version of the Super Bowl? Ask these four
Published in 2007 New England Super Lawyers magazine
By Kirsten Marcum on October 23, 2007
At the U.S. Supreme Court, nothing happens on a small scale. Every statement is scrutinized, every gesture evaluated. You have a half-hour to convince the nine most powerful and intimidating judges in the world that you know what you’re talking about. That’s some crazy pressure. And for these four lawyers, it was unforgettable.
Jacob “Jack” Zeldes’ first appearance before the court came in 1960, when, as co-counsel, he argued against the practice of coerced confessions on behalf of a man convicted of murder. The court’s decision in his favor invalidated the Connecticut standard for admissibility of confessions in criminal cases. As a result, the lower court overturned his client’s death penalty conviction and sentenced him to “but a term in prison,” Zeldes says. “He died a free man.”
Zeldes, of Zeldes, Needle & Cooper, was back in the court in November 1968, this time to debate the constitutionality of the wagering tax law. At that time, Connecticut gamblers were required to buy wagering tax stamps, at which point they were arrested by the state for gambling.
In that case, Zeldes actually argued before the court twice. He didn’t think his first argument was as successful as it could have been. “I told my wife that, if only I could do it again, I knew I could handle it much better,” Zeldes says.
Luck was on his side. Rather than deciding immediately, the court put the case down for re-argument the next term with an additional question. “Things went much better,” Zeldes says.
Following his second argument, the U.S. Supreme Court decided in his favor. Back in the lower courts, those the court had originally found guilty were acquitted. Zeldes filed a motion on behalf of those who had pleaded guilty and paid fines, and the government ended up issuing refunds—with interest.
Zeldes’ law partner, Shelley R. Sadin, went to the Supreme Court in 2002 on Department of Public Safety v. Doe, a pro bono referral from the Connecticut Civil Liberties Union. The group had taken the case of a convicted sex offender who had requested a hearing before he would provide his personal information to a public notification Web site maintained by the Connecticut State Police. Sadin joined the case just before the district judge ruled in her client’s favor. Because the decision led to the shutdown of the Web site, the attorney general’s office asked for an emergency stay. When the appellate court denied the request and affirmed the lower court’s decision, the attorney general petitioned the U.S. Supreme Court.
“At that point,” Sadin says, “I knew I was in over my head.”
She called Drew Days III, who had been her husband’s law professor and also solicitor general under former President Clinton. Days provided her with two Supreme Court experts to help her prepare the case, which included taking part in three moot courts. After learning that then-Solicitor General Ted Olson would argue part of the other side’s case, Sadin asked Days to sit with her at the counsel table. “That way,” she says, “I had my solicitor general and they had theirs.”
In the end, like every other arguing attorney, Sadin had 30 minutes in front of the Court. With her kids and 98-year-old grandmother in attendance, she argued that requiring people convicted of any offense subject to the registration law—including those convicted of non-sex-related crimes—to provide pictures and updated information to the state police both imposed a stigma and an additional burden on them—meeting the “stigma plus” test for a procedural due-process claim.
“It was kind of a tough sell,” Sadin says, adding that she could almost immediately see how the decision would go.
“Justice Breyer clearly thought it should have been framed [differently],” she says. “You can tell that some of the justices have a position, and they want you to move the line so that they can pursue that position and convince their colleagues. I wasn’t in a position to move the line, so I took nobody with me.”
Sadin lost 9-0 but received an award from the National Law Journal for her efforts.
Richard Reeve, of Sheehan & Reeve, also had an early indication of the court’s decision. A public defender, Reeve—who appeared before the court in February 1990—was representing one of nine defendants in USA v. Filiberto Ojeda Rios. A group called Los Macheteros (“the machete wielders”) was on trial for the 1983 robbery of a Wells Fargo depot in West Hartford, and Reeve sought to suppress information that the government gathered using electronic surveillance in Puerto Rico.
“The [other side’s] case was argued by the acting Solicitor General William Bryson, who had appeared before the court on numerous occasions and was previously a clerk for Justice [Byron] White,” Reeve says, and laughs. “At one point during Bryson’s argument, Justice White looked down and asked, ‘Mr. Bryson, do you have a fallback position?’”
The court decided 9-0 in Reeve’s favor and remanded the case for further evidentiary hearings. However, Reeve quickly learned that winning on a technical issue in the highest court in the land does not necessarily mean ultimate victory. In the final hearings, the defendants were convicted and received a range of sentences. Says Reeve: “We won on the law, but lost on the facts.”
New Haven attorney David Rosen first appeared before the Supreme Court in 1975 when, at age 30, he was appointed to represent the children of welfare mothers; at issue was whether the mothers should be compelled to tell the state the names of the fathers. “It was a phenomenally exhilarating experience,” he says. He particularly enjoyed the interplay between the judges—especially when the justices interrupted each other.
To his surprise, Rosen learned that the arguing attorney had more control over the direction of the conversation than he’d assumed: “There are nine strong-willed people, but they all have to at least appear to be talking to you,” he says. “It is true that the justices frequently ask questions as a way of communicating with each other, but it is also true that the question has to be at least formally directed at you. You get a chance to be not just the surface the questions bounce off of, but to at least give them a little spin as they’re heading from one justice to another.”
After his argument, Rosen was asked to submit an additional brief, which he did, and his side won the case.
In 1986, Rosen was back, this time with Ansonia Board of Education v. Philbrook, which started when a local teacher walked into Rosen’s office to complain that his school would not allow him time off for religious observance.
“Once again, the argument was an absolute blast,” says Rosen. “Arguing in front of the Supreme Court has wonderful benefits, if you can manage not to be so terrified that you can’t notice them.”
Among those benefits is the extremely high caliber of the judges, he says, as well as the clerks and court officers. “Plus, your friends and family are sitting there and cheering for you,” Rosen says. “And, above all, you’re helping to shape the development of the law and protect the rights of the people who came to you for protection.”
On that case, after asking more than 100 questions during his argument, the Court also ruled in his favor.
In recent years, Rosen has contributed his talents to two high-profile cases: Padilla v. Rumsfeld, arguing that the U.S. government does not have the authority to indefinitely detain U.S. citizens arrested on American soil; and FAIR v. Rumsfeld, in which several law schools sued the secretary of defense to prevent enforcement of a federal law that requires schools receiving federal funding to allow military recruiting on campus on exactly the same terms as other employers. In the Padilla case, Rosen wrote a brief that focused on the issue of executive detention of terrorist suspects. For FAIR, he wrote amicus curiae briefs on behalf of a majority of the law school faculty who opposed the law.
The experience taught him something else about being the arguing attorney in such cases.
“Every lawyer who writes an amicus brief and attends the argument wishes that he or she were up there doing the argument,” Rosen says. “So part of the experience of appearing in the U.S. Supreme Court is that you know there are people in the legal community—and people in the courtroom—who wish they were up there doing the argument instead of you.”
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