The Supreme Thrill

Arguing a case before the United States Supreme Court is a rare honor for an attorney. It’s the equivalent of being a quarterback for a Super Bowl winning team or a starting pitcher in the World Series. And the preparation required to appear before the nine most influential justices in America can be as brutal as preparing for a high-stakes athletic event.

Just ask Kimball R. Anderson, Miles N. Beermann, Fred H. Bartlit and Jerold S. Solovy, four Illinois lawyers who tested their mettle in the High Court—and lived to tell about it.

Kimball R. Anderson, a partner in Winston & Strawn in Chicago, was nervous enough as he was about to argue his first case before the United States Supreme Court in 1988. What he saw before he was scheduled to argue didn’t help settle his nerves. “I was quite apprehensive, since I had never been in the Supreme Court building,” Anderson says. “I watched one oral argument before mine. The justices quickly and thoroughly sliced up the attorney for the appellant. After five minutes, one justice told him, ‘If that’s all you’ve got, then sit down.’ So he sat down.”

“I was intimidated,” he says. “It was my first time in the Supreme Court room. It’s quite a palatial place. They ring a gong and the justices step out from behind velour curtains. The chief justice hovers a few feet above you.”

Fortunately, Anderson was able to maintain his composure and focus on his case.

“That incident heightened my apprehension. Halfway through my first sentence, Justice [William] Rehnquist interrupted me to ask a question. I had anticipated his question and answered it satisfactorily. He smiled and said ‘thank you,’ and I proceeded with my argument. I gained confidence as it went on. I spent most of the 30 minutes answering questions. After the first tough one, they gave me softballs, leading questions, or they stated propositions that I agreed with.”

Anderson recalls that he didn’t pick any one particular justice to argue toward, and that all of the justices were engaged. “The justices often talk to their brethren instead of to the attorney,” he says. “Sometimes they use oral argument to persuade each other. They’re generally not interested in having the attorney lecture. They want to pursue their own questions from the attorneys and persuade the other justices.

“The bench is active—they have questions and issues and they use oral argument to learn and persuade.”

Anderson has argued two cases before the court: U.S. ex rel. Harris v. Reed (1988) and Shalala v. Illinois Council on Long Term Care Inc. (2000). He lost the Shalala case on appeal, but he won the Harris case 8-1. In that case, the Supreme Court granted habeas corpus relief (a measure that ensures an individual is not imprisoned illegally) to Anderson’s client and he was released from prison after serving time for a murder conviction.

According to Anderson, this case is an important federal habeas case that has been cited by courts more than 1,000 times. And not only has it made its mark on jurisprudence, it

gave Anderson a profound sense of accomplishment to have helped another human being. “I’m a commercial litigator,” he says. “It’s one thing to win a breach of contract, but it’s another to free a person from prison. It was emotionally and professionally gratifying.”

In recalling his Supreme Court oral argument in Trimble v. Gordon (1977), Miles N. Beermann, a partner in Beermann Swerdlove in Chicago, says with a laugh, “I was nervous and excited. I had been used to being in trial and appellate courts, but being at the Supreme Court was overwhelming. It was very formal.

“I was awestruck. It was a prestigious-looking room—columns, red drapery, etc. It was something else. I had seen Chief Justice Warren Burger in newspaper photos and television interviews, and during oral argument the attorneys are close enough to reach over and touch Burger. It’s larger than life.”

Beermann notes that the justices’ questions did not throw him off. “The justices did frequently interrupt my arguments with questions. Originally I thought that they had thrown me off track. However, when I listened to the tape of the case, I was surprised to hear that I had been responsive to their questions.”

Beermann thinks along the same lines as the justices. “Oral argument is important in Supreme Court cases,” he says. “I’m a big believer in oral argument and it was important in my Supreme Court case to make the vote closer than I expected, but the Illinois courts stay away from it—only 20 percent have oral argument. That boggles my mind. It’s boring to just read the briefs. In oral argument, there is a give and take.”

Though Beermann lost the case on a 5-4 vote, he has fond memories of the experience. “Arguing before the Supreme Court was a highlight of my legal career,” Beermann says. “It was hard to come down from it. I would love to go back to argue a case.”

Fred H. Bartlit Jr., a partner in Bartlit Beck Herman Palenchar & Scott in Chicago, helped represent President George W. Bush in the 2000 presidential-election case in a Florida state court. But among his career highlights are two landmark criminal and civil antitrust price-fixing cases he argued before the Supreme Court, U.S. v. U.S. Gypsum (1978) and Monsanto Co. v. Spray-Rite Service Corp. (1983).

“I’ve been involved in many important cases, including President Bush’s appeal in 2000 in Florida courts, where I frequently spoke in front of 50 television cameras,” Bartlit says. “But the Supreme Court is quite a place. When they ‘all rise’ and the justices file in, I was thinking ‘This is a big deal—little old me from Harvey, Illinois, is arguing before the United States Supreme Court.’”

Bartlit says he did target the justices he believed were swing voters on the court. “The Gypsum case involved a 70-year-old man, so I looked directly at Justice Burger. He was a strong common-sense guy and he was outraged about the facts of the case, in which the trial judge failed to tell the attorneys that he had sent a note to the jury regarding a compromise verdict. Burger’s reaction was ‘He did what?!’”

Regarding his victory in the Gypsum case, Bartlit says the 70-year-old man had been wrongly convicted at the end of an honorable career. “This case was more rewarding than getting a monetary award for a corporation,” he says. “We’re all human.”

Bartlit emphasizes the importance of preparation and practicing oral argument. “Our firm would get retired judges and law professors such as Frank Easterbrook of the University of Chicago, who eventually went on to become a 7th Circuit judge. We would practice our oral arguments before a panel of these experts. I also found it helpful to watch several arguments before I had to argue my case. I’ve seen great performances and poor ones. Some attorneys are before the court all the time and do it for a living. In those cases, the justices know them and the banter is more natural. However, I’ve also seen many attorneys who were arguing before the court for the first time [freeze] like a deer in the headlights. They don’t know what the judges expect.”

Jerold S. Solovy, a partner in Jenner & Block in Chicago, has argued five cases before the United States Supreme Court: Bolger v. Youngs Drug Products Corp. (1983); Kirby v. Illinois (1972); Reed v. Farley (1994); Ralston v. Robinson (1981); and Witherspoon v. State of Illinois (1968), a landmark Supreme Court decision that stopped a planned execution and led to many reforms in the criminal justice system. “I was a young man the first time I argued a Supreme Court case,” says Solovy. “It was a relaxed feeling because it was a friendly court. You’re close to the bench when you argue—much closer in proximity to the justices than when you argue before the district and circuit courts.”

While preparation is important, Solovy notes that it’s inevitable that the justices will pepper attorneys with frequent questions. The only case they didn’t interrupt was one involving ads for contraceptives, he says. There was stony silence from the justices. “The justices almost always interrupt your oral argument. As an experienced attorney, you prepare for argument and know how to go with the flow. You respond to the justices’ questions and get right back on track and move on. You have to be sensitive to their questions and have a keen ear. Preparation means a lot. It’s like being a boxer who has to go 15 rounds. You have to be ready and be willing to adjust your argument if the flow gets interrupted by questions.”

As to whether the oral arguments or the briefs are more important, Solovy says, “It depends on the case. Sometimes the briefs carry the day, but sometimes the oral argument recharges your case. I believe it made a difference in the Witherspoon case.”

Solovy also believes it’s necessary for an attorney arguing before the court to focus on the entire court as opposed to only one swing justice. “It’s suicide to key in on only one justice and gear your argument toward that person. You can’t ignore the other eight justices.” Solovy cites the Witherspoon case as his most significant Supreme Court victory. “We had 350 people on death row resentenced. No matter how miscreant they were, they’re still human beings. We saved 350 lives in that case.”