The Supreme Thrill

Four attorneys share their experiences in front of the nation’s highest court

Published in 2006 Missouri & Kansas Super Lawyers magazine

By Kevin Featherly on October 23, 2006

Tom Gilman was broadsided by a softball question.

David Yates was the victim of unfortunate scheduling.
Floyd Finch won a unanimous victory, on what he thinks was a red herring.
Thomas Walsh was recruited by Justice Thomas to argue the government’s side.
Arguing before the United States Supreme Court has a different effect on different people and each of these four lawyers from Missouri and Kansas handled the daunting experience in his own way. But despite the differences, common threads exist, such as lunch and the large role it plays in high-court proceedings. Gilman, Yates, Finch and Walsh were asked to share their Supreme Court memories.We got an earful.
Achill descended over the courtroom. That’s what Tom Gilman remembers. He was about to argue his first case before the U.S. Supreme Court, Home State Bank v. Johnson. It involved a farmer who had been sued by his local bank. He filed a Chapter 7 bankruptcy, liquidating his property, followed immediately by a Chapter 13 filing, with which the farmer hoped to pay off his debts and retain his family’s property. There was nothing in the law forbidding that, and a bankruptcy judge had approved the plan. The case went all the way to the U.S. District Court, which reversed the ruling and to the 10th Circuit District Court, which affirmed this ruling. However, because a similar case in another district was ruled the other way, the U.S. Supreme Court took the case to sort out the conflict.
Gilman was confident he had a winning case. But he still had a bad case of nerves. “You’re going in front of nine great intellectual people with pricey educations and a lot of power,” he says. Still, the 35-year-old felt reasonably confident heading into the chambers on April 16, 1991. Whatever jitters he felt were soothed by the friendly way the court handled the case on the docket just before his own. “It was an easygoing thing, no tough questions, nobody raising their voices,” Gilman recalls. “You could tell it was a gathering of people who were friendly among each other.”
But then Gilman’s case was called. “It was like a curtain of ice came over the court,” he says. “It was like, uh-oh, here are these young rubes from Kansas that are here to argue this mundane bankruptcy case,” he says. “It was a totally different experience from what those other people had.”
Five seconds into his presentation, Justice Sandra Day O’Connor interrupted with a question. That didn’t surprise or bother him, he says. What did surprise him was the simplistic nature of the query. “It was a question that you might get from a first-year law student,” he says. “I think I said something about how a Chapter 7 bankruptcy was originally filed and she interrupted me and said, ‘That’s a straight liquidation, is that right?’”
Then, Gilman says, he fumbled. He cited a case not included in his court brief — it had been cited instead in an amicus brief. Chief Justice William Rehnquist was not pleased. “He jumped all over me,” Gilman says. “I didn’t argue with him. I just took my licking and kept on.”
Gilman prevailed 9-0. But if he could have a do-over, he says, he would prepare a more basic case for the justices. “I guess I put these people up at a level that was unrealistic, expecting that they were going to know everything about everything,” he says. “If I had it to do again I would have written it in a way that addressed the issues at a more basic level.”
Attorneys have no control over their place on the Supreme Court’s docket. But if they did, one thing is sure — no attorney would request having his or her case heard just before lunch. But that’s when the court heard labor attorney David Yates’ first Supreme Court case, Schneider Moving & Storage v. Robbins et al.
The 1984 case pivoted on the issue of labor benefits. A St. Louis moving company and the local Teamsters Union had agreed that the business need not pay into a pension fund and a separate “health and welfare” benefit fund for part-time and “casual” workers — those who only worked from time to time to pick up extra cash. However, the funds — despite being formed under the aegis of the union — sued to force the company to collect and contribute funds. The case eventually worked its way to the Supreme Court.
Yates represented the moving company and got shellacked, 9-0. “The justices looked at it and said we really don’t trust the unions to protect these interests because they have other interests to pursue, such as representing members and collecting dues,” Yates says. “So they allowed the funds to sue without going to arbitration.”
Despite the loss, Yates has fond memories of his Supreme Court experience. He remembers going to the court early that morning and encountering a guard in the coffee shop downstairs. The guard took time to accompany him upstairs, showing him the chambers and running him through the litany of formal procedures — while also instructing him that the quill pens on the attorney’s dais are meant to be taken as souvenirs. The guard also reassured him that his family would be allowed to view the entire proceedings. That encounter went a long way toward stilling his nerves.
Yates’ argument before the Supreme Court was one of the most spectacular moments of his life, he says. “When I finally got to the podium, it was as if walls came around the court and me, and we just had this dialogue as if we were in a private room discussing a case,” he says. “It was almost like an intimate conversation with my favorite law professors.”
Wine and cheese would not have been out of place there, he says. It’s too bad, then, that none was at hand. As Yates wrapped up his rebuttal, Chief Justice Warren Burger began giving off strong signals that he was ready for lunch. “The white light goes on [meaning five minutes are left] and Burger starts gathering up all of his files, puts them under his arm and turns in his chair,” Yates says. “He literally was in a sprinter’s starting stance, ready to go out the curtain and nodding to me like, ‘You know, your time is up.’ As soon as I ended, the court was adjourned — and he was gone.”
Floyd Finch still can’t believe the Supreme Court justices ruled against him. His case, Turner v. Safley (1987), was a two-part case arguing that prison inmates have a right to get married while in prison and a right to correspond with their romantic partners while incarcerated. The court actually agreed in part, ruling 9-0 that inmates may indeed marry. But they ruled 5-4 that prisoners have no right to correspondence, on the grounds that letters might be written in code, presenting a security issue.
That argument, he says, was a red herring. If anything, Finch says, the court got it backwards. “If you look at the Constitution, and say ironically, ‘Where is this absolute right to marry?’ It isn’t in the Constitution,” Finch says. “It’s in the penumbra; it’s recognized in cases like Griswold v. Connecticut and it’s become a fundamental right over the years. Whereas freedom of speech is right there in the First Amendment!”
Finch has been to the big show twice, once with the Safley case, and again in 1990 arguing Kansas v. UtiliCorp United Inc. The latter was an exceedingly complex case featuring four different plaintiffs, including a regulated gas and electric utility that had been overcharged by several energy firms, a regional gas utility that also had been overcharged, and the citizens of Kansas and Missouri, to whom overcharges were passed as hiked utility rates. At issue was who among the four had the right to recover damages.
As Finch argued his case, he recalls, he received a jolt. Justice Byron White, who authored the two precedent-setting opinions Finch was citing to support his brief, unexpectedly launched into a barrage of hostile queries. “He was asking very odd questions, kind of coming down the other way,” Finch says. “It turned out that he voted with the dissenters in that case to say we didn’t have the right to bring the lawsuit. That threw me.” Nonetheless, Finch and Utilicorp won a narrow 5-4 decision.
Finch says arguing before the Supreme Court can be a little like attending a tennis match. “You can’t encompass the whole court in your field of vision,” he says. “So you’re turning to the left to answer questions from Justice [John Paul] Stevens and then — bang — you get a question from Justice [Antonin] Scalia on the other side of the bench and you have to turn and face it. And these questions can come kind of fast and furious.”
Which is exactly what an attorney should want — and prepare for: “What’s important is what the judge is thinking, not what you’re thinking,” Finch says. Still, sometimes it’s hard to know what justices are thinking, even when they ask a question. Take Scalia’s query during the Turner case. “‘Well, Mr. Finch, after all, these people are in prison; they’re not going to be able to consummate their relationship,’” Finch recalls Scalia dryly noting. “‘Why don’t they just, I don’t know, exchange fraternity rings?’”
Finch wisely didn’t take the bait. “‘Justice Scalia, your comment suggests that the only purpose behind marriage is procreation,’” Finch recalls saying. “‘In fact, these people look at marriage as something they can look forward to — a goal in life, a reason to try to do better.’” Looking up, Finch happened to glance toward Justice Harry Blackmun. That was when he knew he struck the right note. “Blackmun had this big grin on his face,” Finch says, “as if to say, ‘Go get him, Floyd!’”
Tom Walsh was a 34-year-old lawyer the day he argued Drope v. Missouri before the U.S. Supreme Court on Nov. 19, 1974. It was a strange case, involving a man who, along with a group of drunken friends he had invited into his home, had repeatedly raped and beaten his wife. However, his behavior suggested mental illness and that he needed help, and despite significant evidence of his diseased mental state — at one point he shot himself in the stomach — a Missouri court convicted him without ever examining his psychological fitness for trial. The high court agreed to hear the case.
Walsh twice sat in as assisting counsel in previous Supreme Court cases — once writing the brief in the landmark McDonnell Douglas v. Green employment discrimination case — but this was his first time arguing before the body. He was nervous, but figured he had several factors in his favor. For one, he was very well prepared. For another, he could reliably count on at least one justice to take his side. William O. Douglas, the staunch New Deal liberal, was serving his final year on the bench. “I was actually counting on him,” Walsh remembers.
Imagine Walsh’s dismay, when Douglas stood up halfway through his argument and headed off to lunch. “He didn’t think he needed to hear anything from a guy less than half his age,” Walsh surmises. “I think that during the 15 minutes he was there, he was writing another opinion in another case.” Still, Walsh prevailed, 9-0. Justice Douglas sided with him after all.
It was the first of six cases Walsh would argue before the courts of Chief Justices Warren Burger and William Rehnquist. He counts 1978’s Coopers & Lybrand v. Livesay, which he won 9-0, as the most consequential. After that case, orders denying class certification may no longer be appealed under the collateral order, or “death knell,” doctrine. “That decision has been cited thousands of times,” Walsh says.
But he never had more fun arguing before the court than the time he stood in as the government’s representative in Bousley v. United States (1998). The case involved a Minnesota man who pleaded guilty and was convicted of using a gun during a drug deal. In the meantime, the Supreme Court ruled that merely carrying a gun during the commission of a crime did not constitute its “use.” The convict appealed, complaining that he was sitting in jail for something that was no longer a crime. Things got weird, Walsh says, when the solicitor general agreed — leaving no one to defend the government’s position. Justice Clarence Thomas recruited Walsh to stand in.
For once, the atmosphere was relaxed, probably because Walsh was doing the court a favor. “It was a lot of fun,” he says. “I remember Chief Justice Rehnquist telling the assistant solicitor general when he was arguing for a reversal, ‘I can understand how that argument advances the cause of the petitioner, but how does that argument advance the cause of the United States?’” Walsh lost that case 7-2, but managed to garner votes from Thomas and Justice Antonin Scalia. Walsh also got a hand from his son who had just completed a clerkship with the 8th Circuit Court and had recent habeas corpus experience.
The Supreme Court is an experience that never grows stale, Walsh says. “[New Chief Justice] John Roberts talked about how every time you go up the steps, your pulse quickens — not just because of the pressure of the case but because of the solemnity of the occasion,” he says. “The proceedings are solemn and awesome.”

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