The Supreme Thrill
Six Illinois lawyers talk about the six stages of arguing before the U.S. Supreme Court
Published in 2007 Illinois Super Lawyers magazine
on January 4, 2007
Updated on February 6, 2016
Call it the long arm of the law. In 1991, the aura of the United States Supreme Court stretched from Washington, D.C., to Chicago and gripped Christina Tchen. The up-and-coming lawyer was preparing to argue before the U.S. Supreme Court for the first time, and she quickly realized that this was an experience like no other.
“About a month before the argument, I removed myself from everything else I was doing and devoted 100 percent of my time to preparation,” Tchen, now 50 and a partner in Chicago with Skadden, Arps, Slate, Meagher & Flom, says of Artist M. v. Suter. “What I remember about that time was the generosity of lots of people who helped me get ready. Anyone who’s a lawyer respects how rare an opportunity this is. If you say you’re getting ready for a Supreme Court argument, people go out of their way to try to help you out.”
Arguing before the Supreme Court is an intense drama that divides itself into six acts: The Phone Call, The Preparation, The Room, The Justices, The Arguments and The Verdict. Illinois Super Lawyers connected with several prominent Illinois attorneys who have argued before the Supreme Court—Tchen, Peter Barack, Peter Carey, Roger Pascal, Gregory Rogus and Richard Devine—and asked them to share their tales. We got an earful.
The Phone Call
The story begins here, when the Supreme Court decides to take a case. Although this marks the pinnacle of a trial lawyer’s career, the news isn’t always met with jubilation.
“When I found out, I thought, ‘Wow, what a thrill,’” says Rogus, 51, an attorney for Chicago-based Segal McCambridge Singer & Mahoney who argued Jaffee v. Redmond before the Supreme Court in 1996. “On the other hand, there was a certain amount of fear because it’s the highest court in the land. It was a mixed feeling.”
Carey was anything but thrilled to learn that the Supreme Court would be hearing his case, Diamond v. Charles, in 1986. He had scored a victory in the 7th Circuit and wanted the case to rest there.
“I was a little disappointed and surprised when I found out,” says Carey, 58, who plies his craft in Chicago for Mandel, Lipton and Stevenson. “We had won most of the points we had argued in the District Court and 7th Circuit, and I was concerned that the Supreme Court might take the case and change those decisions to some degree. It’s always a worry for a lawyer to have your case reviewed by the Supreme Court after winning below.”
Carey wound up prevailing in the Supreme Court 9-0, but Barack wasn’t as fortunate. Representing John Daniel in Daniel v. International Brotherhood of Teamsters in 1978, he, too, had won in the 7th Circuit. Then he got the call.
“We tried to resist—we didn’t want it,” says Barack, 62, the senior and founding partner at Chicago-based Barack Ferrazzano Kirschbaum Perlman & Nagelberg. “We felt it did not merit review in the Supreme Court. We lost 8-0, even though the 7th Circuit was in our favor 3-0. The Supreme Court went exactly the other way around.”
Pascal, on the other hand, was ecstatic about bringing Boston Stock Exchange v. State Tax Commission to the Supreme Court after losing 7-0 in the New York State of Appeals—though not for the obvious reasons.
“Every lawyer who goes to court ought to want to argue before the Supreme Court,” says Pascal, who earned a 9-0 reversal on behalf of his stock exchange plaintiffs. “It is an extraordinary court. The judges are better prepared than judges anywhere else. As a unit, their tradition is enormous and unique.”
Even Barack acknowledges this much. “On the one hand, we were disappointed that they didn’t let the 7th Circuit decision prevail,” he says. “On the other hand, we were very excited and wanted to tell our story to the Supreme Court.”
Some lawyers have difficulty recalling this part of the process. Why? It’s an elongated blur.
“There was extensive preparation,” Carey says of Diamond v. Charles. “I couldn’t begin to tell you the hours—it was a staggering amount. I really can’t remember. It was as much preparation as I’ve done for any case.”
The hours of preparation pile up because a lawyer must anticipate every question the Supreme Court justices might ask. After a while, as one sleepless night spent cramming leads into another, the possibilities seem endless.
“The fascinating thing about the U.S. Supreme Court is that while they certainly give deference to their own precedents, they aren’t bound by anything,” says Devine, 63, who is Cook County state’s attorney and has argued before the Supreme Court twice. “They can have hypotheticals from left field, right field and center field. [The preparation involves] trying to cover an area in a vast fashion so that you’re not surprised by anything.”
Mock courts often are the most useful means to this end. Pascal, who practices for Schiff Hardin in Chicago, was so hardened by the mock courts his colleagues set up that the actual Supreme Court arguments seemed a breeze.
“I had a senior partner who was an expert in this area,” says Pascal, who argued Boston Stock Exchange v. State Tax Commission. “Doing a mock court before him and a couple of my colleagues was much more difficult than anything I would face in the Supreme Court. It’s supposed to be that way. It’s like a shot-putter before he puts the shot: If it weighs 16 pounds, he practices with one that weighs 24 pounds. It’s bound to make it easier when you go up there for real.”
Of course, no number of mock arguments can fully prepare someone for the daunting Supreme Court arena. As a lawyer strides into the courtroom, that shot put suddenly feels like it weighs a ton.
“I had never been to the Supreme Court,” Tchen says. “I confess that I think I went to Mount Vernon on the eighth-grade trip to Washington—I didn’t pick the Supreme Court when the menu of choices came up. Being there for the first time was very emotional. Your throat catches, and it’s very awe-inspiring.”
What many first-timers find most startling is that the grandest courtroom in the land is really quite small and intimate.
“We all have a vision, especially when you look at all those steps you have to walk up to get into the building, that it will be like an amphitheater,” Devine says. “But the area where the lawyers are and the justices are is very close. I was surprised by that.”
To keep their jitters to a minimum, Devine, Tchen, Barack, Carey, Rogus and Pascal all went on scout trips to the Supreme Court so that they could listen to arguments and familiarize themselves with the courtroom. Pascal took note of a clock hanging above the justices. While seemingly minor, that observation played a critical role in helping him frame his arguments.
“The petitioner in the third argument, which was the position I was going to have, had to watch that clock,” he says. “As soon as that second hand clicked to noon, a gavel sounded like a rifle shot and those nine old men disappeared behind the curtains before you could finish your syllable. So I learned to keep an eye on that clock as it got close and to keep some sort of cadence, even if it wasn’t an ideal spot. That way, I wouldn’t be cut off in mid-sentence or mid-thought by that gavel.”
Tchen shudders to think what might have happened if she hadn’t sized up the courtroom beforehand.
“It was really good to have [the layout of the courtroom] in my head before I arrived because we were the first argument of the day,” she says. “If I had walked in to see it for the first time that morning, it would have been very unnerving.”
The nine men and women on the Supreme Court bench are serious about their work, but they aren’t simply monoliths of the judicial system. They’re people, as Pascal discovered, with the same frailties and foibles as anyone else.
“One of the justices, Potter Stewart, had just stopped smoking and was chewing gum,” Pascal says. “Of course, a justice of the Supreme Court can do anything he wants, and he was kind of playing with his gum, pulling it out and making strings with it.
“My 8-year-old son was in the audience with his mother and couldn’t understand, based on his experiences in school, how a justice could play with his gum. So he started yelling to his mom, ‘Look what he’s doing, Mom. He’s playing with his gum.’ I heard him—it was the only moment where I was disconcerted. Fortunately, Justice Stewart must have heard it, too, because he stopped playing with his gum.”
Devine laughs uproariously when he recalls an exchange with Justice Thurgood Marshall during Illinois v. Andreas in 1983. The case involved a table which U.S. Customs agents drilled into when it arrived at O’Hare International Airport on a cargo plane.
Marshall: “So if I go to London and buy a desk and bring it back to the United States, they can drill into my desk?”
Devine: “Well, I think they can, Justice Marshall. I think the law is pretty clear on that.”
Hypothetical or not, Marshall apparently was none too pleased about the prospect of someone drilling into a piece of his furniture. So Devine did his best to reassure Justice Marshall, saying, “I’m sure they would try to put it back together again after they drill.”
These are the types of memories Devine cherishes most from his two Supreme Court appearances. “There’s a very human side to it,” he says.
If everything goes well up to this point, the arguments should fall into place. That said, the unexpected is bound to occur during those 30 minutes of questioning.
“What you’re trying to address is how to answer the questions the justices ask and still make your arguments,” Carey says. “That’s tough. Sometimes the questions don’t fit with your arguments, or perhaps they’re ones you hadn’t fully anticipated. It’s not a situation where you can say, ‘Gee, Mr. Justice, that’s a very good question. Can I do some research on that and call you tomorrow?’”
Devine was terrified that his mind would go blank when he stood before the justices, so he deviated from his normal courtroom routine.
“My approach to appellate court arguments and general presentations is to not write things out because I get too wedded to the text,” Devine says. “I normally make an outline that serves me very well. But the day I went to the Supreme Court [on a scout trip] in 1983 preparing for Illinois v. Andreas, I saw the lawyers really fumbling a couple of times when they were starting out. I thought, ‘You know, I think I’ll write the first couple of paragraphs out just to make sure I have it.’ You hear all the horror stories about someone getting up there and not being able to say anything.”
It seems unthinkable—a lawyer not being able to say anything—but such is the tongue-tying power of the court. In these wayward instances, Carey believes, the justices shepherd the lawyers through their arguments.
“If it seems the lawyers are having a little difficulty, I think some of the justices will help the lawyers out and ask questions that they are pretty sure the lawyers know how to answer,” says Carey. “I definitely had the sense that the justices asked questions of me that I can’t imagine they didn’t think I knew the answers to.”
When Rogus found out the Supreme Court had ruled 7-2 in his favor in Jaffee v. Redmond, it was a fist-pumping moment. “I was excited as hell,” Rogus says. “It doesn’t go any higher than that—that’s the final say. It was a tremendous feeling of satisfaction, the best kind of accomplishment you can have as a lawyer.”
But the verdict itself, even if it goes the lawyer’s way, can sometimes be a letdown. Devine won both of his Supreme Court cases, but those verdicts were only part of what he took away from his trips to Washington, D.C.
“The verdict comes down a substantial bit of time after you argue,” Devine says, “so there’s a little bit of disconnection. And the experience itself has been so significant for you that the decision, while it is important, doesn’t quite match up to the event itself.”
That certainly was the case for Tchen. When she received word that she had won Artist M. v. Suter, the last thing she wanted to do was pop a bottle of bubbly.
“The very call came into the conference room when I was meeting with my opposing counsel [from Artist M. v. Suter],” Tchen says. “We had a series of cases with each other and were meeting about another case, so the guy I had argued against in the Supreme Court happened to be in our office when the call came in. It was a little awkward.”
Ultimately, the journey—the months of preparation, the first glimpse inside the Supreme Court building, the whirlwind 30 minutes before the justices—means more than the endpoint.
“That awe, the importance of what you’re doing, is always there,” Barack says of the Supreme Court case he argued nearly three decades ago. “But it really comes to the fore afterward. Then you realize what you’ve done. And then the awe grows.”