The Whole Show
How Peter Brann won by throwing away everything and starting over
Published in 2018 New England Super Lawyers magazine on October 18, 2018
Nearly 20 years have passed since Peter Brann stood before the nine justices of the U.S. Supreme Court and argued Alden v. Maine. It is, he says, the crown jewel of his four-decade legal career—and the furthest thing from a normal day at the office.
“If someone tells you it is just another case, they are either braindead or they are lying to you,” Brann says from his office at Brann & Isaacson in Lewiston, Maine. “This is the whole show.”
Photos and television didn’t prepare him for the effect created by the low risers and semi-circle of the court’s bench.
“You really have to be there, arguing before the court, to appreciate how intimate the actual courtroom is,” Brann says. “When you are at the podium, you are 12 feet from the chief justice. Courtrooms are designed to be very intimidating. When you are the Supreme Court, you don’t need a courtroom to be intimidating, it just is.”
Back in March 1999, Alden v. Maine was considered a significant case on the court’s docket.
“The essence of the question was whether or not Congress had the power to allow individuals to sue a state for damages and have that apply in state court,” says Brann, who also handled the case at the trial and on appeal. “It had previously been ruled that Congress lacked that authority to do it in federal court, so this case took it to the next level. Could Congress pass a commerce law subjecting a state to a damage action in state court?
“It was pretty clear from the outset, there were three justices on my side and four against me,” Brann recalls. “After doing a little more research, it looked like it was going to come down to Justice Anthony Kennedy.”
That knowledge helped Brann focus on how to build his argument.
“One of the best pieces of advice I got came from Jeff Sutton, who was in private practice at the time.” (Sutton is now a judge on the U.S. Court of Appeals for the 6th Circuit.) “He told me, ‘Take everything you’ve done before, throw it away, and start over,’” Brann says, laughing. “The arguments at this level become a little more nuanced, and you can’t just pull up a brief to make your argument, because that really isn’t going to cut it.”
Another valuable piece of advice came his way from his predecessor in the AG’s office.
“He told me, ‘At some level, they’re gonna do what they’re gonna do. They have a lot of smart clerks, and they know where they want the law to go, so at some point you want to just enjoy the ride,’” Brann says. “That took a little bit of the pressure off. If one of these justices has a view that is firmly held, you could write the best brief in the world and you aren’t going to change their mind.”
Brann felt so prepared that he spent the weekend before the big day exploring the nation’s capital with his then-5-year-old twins.
“I had reached a point where I knew what I was going to say and how I was going to answer the questions, and the rest was out of my control,” he says.
Once he was before the High Court, Justice Kennedy asked a particular question. “As soon as I heard the question, I thought, I just won this case,” he says. “I knew he was with me; that’s it, game over.”
Three months later, Brann earned a 5-4 decision. “As I was arguing the case, I remember thinking there is no place in the world I would rather be,” he says, pausing and adding: “And that’s still true today.”
Alden v. Maine at a Glance
Case Number: 527 U.S. 706
Ruling: 5-4 in favor of the state of Maine
Majority: Kennedy, Rehnquist, O’Connor, Scalia, Thomas
Minority: Souter, Stevens, Ginsburg, Breyer
In a nutshell: A group of probation officers in Maine filed suit claiming the state violated the Fair Labor Standards Act of 1938. The case was initially dismissed on the grounds of the state having sovereign immunity from lawsuits, thus setting the stage for the eventual challenge at the Supreme Court.
Justice Kennedy, writing for the majority: “Although the plain meaning of the 11th Amendment is not precise, the history and structure of the Constitution lead to the conclusion that states retain sovereign immunity unless they expressly relinquish it in a certain situation.”
Its legacy: “It continues to be quite important,” Brann says. “I was reading one of the decisions from the last term and there it was, being cited again, almost 20 years later.”