The Supreme Thrill
Six Maryland attorneys talk about arguing before the U.S. Supreme Court
Published in 2007 Maryland Super Lawyers magazine
By Bill Glose on December 25, 2006
Tom Wilson was anxious, and Larry Greenwald was humbled.
Kenneth Ravenell felt relaxed, and George Nilson felt like a horse wearing blinders.
Lawrence Fletcher-Hill believed he had gained entry into an exclusive club, while
Andrew Baida compared his experience to that of a condemned man on death row.
Arguing cases before the United States Supreme Court impacted each of these Maryland lawyers in distinct ways. They all agree, however, that they will cherish the experience for the rest of their lives.
When Andrew Baida went to Washington, D.C., he was armed with plenty of Supreme Court knowledge. He’d witnessed dozens of cases there while working for the National Association of Attorneys General.
“The acronym is NAAG,” Baida says, chuckling. “I was a fellow with NAAG’s Supreme Court project in the early ’90s. The project monitors what’s going on at the Supreme Court level and gives state lawyers assistance. … We were responsible for summarizing the different arguments we saw and putting the summaries in a weekly newsletter that was circulated to all the attorneys general in the country. … With my stint with NAAG, I probably saw about 30 Supreme Court arguments.”
Ten years later, Baida found himself on the other side of the gallery representing Maryland in a case against Virginia over water rights. Maryland felt its ownership of the Potomac River allowed it to regulate activities on Virginia’s side of the water as well. “It was a fascinating case,” says Baida, “because we were dealing with all these historical documents: the charter of 1632, issued by King Charles I, the Mount Vernon Compact of 1785, correspondence between James Madison and Thomas Jefferson and George Mason, a map of Maryland dating back to 1790 and a number of historical documents that played a role in the Supreme Court’s decision.”
Approximately one month prior to his “day of reckoning,” Baida experienced a level of stress he had never before encountered. “I spent almost all of my time preparing for this argument, and my level of anxiety increased with each passing day. It was just very nerve-wracking. Then, about one week before the argument, I just entered this exquisite state of calm, which I analogize to what someone on death row must experience when they finally accept their fate. From that point on, I was in my element. The morning of argument could’ve been any other morning, and I was actually looking very forward to the experience.”
In the cases Baida witnessed with NAAG, the Supreme Court was very active in the oral arguments. Justices would typically give litigants an opportunity to say something for about 30 seconds—and then they’d start firing questions.
“I had anguished over how I was going to begin the argument,” says Baida. “My goal was to get three sentences out before the justices started asking questions. I got through the middle of my second sentence, and that’s when the fun began.”
The Court, unfortunately, ruled in Virginia’s favor.
Larry Fletcher-Hill spent more than 150 hours preparing to defend deputy sheriffs sued for allowing a reporter to accompany them into a home while they executed an arrest warrant. “What we do as lawyers is largely preparation,” he says, “and it’s fun to do that intensive build-up to something. It may seem a little anticlimactic when it’s just 10 minutes of advocacy at the end.”
Before Fletcher-Hill went before the court, the clerk gathered all attorneys who were arguing that day into an elaborate waiting room to explain court procedures. “I was struck by the informality of that gathering,” Fletcher-Hill says. “[The clerk] was intent on putting us at ease and making it a special experience. He obviously wanted things to run smoothly and to make sure people were prepared for when they were supposed to sit and when they were supposed to rise and all that.”
The clerk, however, had not prepared Fletcher-Hill for everything.
“I didn’t realize the Supreme Court has quite a good sound system to make things audible,” he says, “but it’s not very directional. So even though you’re very close to the justices, when I got the first question I could not tell who was asking it. And I had this moment of—terror may be too strong a word—but hearing this question and scanning down the line of nine justices to see whose mouth was moving to figure out who was actually asking this question … the voice just comes from a disembodied nowhere because of their sound system. That was the thing that struck me the most—this moment of trying to figure out who was asking me this question, and at the same time, obviously, listening to the question and thinking about an answer. Once I got through that I was calmer.”
With such constitutional violations, the Supreme Court rules on two questions: the violation, and whether officials should have known they were violating the Constitution. “This actually dates back to Watergate and the Nixon era,” says Fletcher-Hill. “According to the Supreme Court, if a government official does not know he is violating a clearly established law, then he’s immune from damages. … [In this case] the outcome for the Supreme Court was that, yes, the Constitution was violated. They decided that issue 9-0. But then they decided 8-1 that it was not clearly established at the time the officers acted, so my clients and the other officials involved essentially won, with no liability.”
He adds, “I had only 10 minutes of argument, so I like to say that I still have five minutes of fame left somewhere else.”
Thomas M. Wilson III
“I remember when I was waiting to sign in,” says Thomas Wilson. “One of the other lawyers was signing in just ahead of me, and his hand was visibly shaking. So I wasn’t the only one.”
Arguing a case before the Supreme Court can be harrowing enough without feeling that one of the justices is predisposed against your position. But such was the case when Wilson argued before Justice John Paul Stevens. Stevens was once a judge on the 7th Circuit Court of Appeals, where he concurred with an opinion that went against the merits of Wilson’s argument.
Wilson’s case involved state regulation of the petroleum industry. In response to long gas lines, Maryland had passed a statute prohibiting petroleum producers or refiners from selling gasoline at retail. That meant no company-operated stations would be allowed in Maryland; they could own stations but not operate them.
“I went in expecting to lose,” says Wilson. “I was told by my office, in so many words, to basically try not to lose too badly, to make a good show of it and not embarrass myself.”
To do this, Wilson put more time into preparation than he had for any previous case. “There’s so much to prepare for,” he says. “You have to imagine what questions the justices might ask, and be prepared to give a succinct answer. I prepared for four months, seriously, for 10 minutes of allotted time. I didn’t know how I was going to get it all in. I knew I had to engage Justice Stevens in a conversation, but I only had 10 minutes and didn’t know if I could do it.”
Fate intervened, or at least his opponents did. “The attorney for the oil companies [William Simon] had difficulty completing his oral argument because of repeated questioning and interruptions by the court,” says Wilson. “So the chief justice gave an extra 10 minutes to each side. The attorney general told me I could have the whole 10 minutes, and that’s when I knew I had it.”
With Justice Powell recusing himself, the court ruled in his favor, 8-0.
In Roemer v. Board of Public Works, George Nilson represented the state of Maryland in a case debating whether Maryland was permitted under the Constitution to use public funds to assist church-affiliated colleges. “I had the benefit of having a co-counsel,” says Nilson. “The college consortium was represented by a fellow named Paul Connelly. Paul was a very effective advocate, and his firm had a lot of recent Supreme Court law clerks. So we had prep sessions at the firm run by four or five recent Supreme Court clerks, which helped a lot. I really felt tested by the time I went in there.”
Nilson most remembers the proximity of the justices. “You’re so close,” he says, “that it creates almost an intimate setting in which to argue the law. You are largely oblivious to the folks around you coming in and out of the public gallery, sort of like a horse wearing blinders. Therefore, at least to me, the physical arrangement in the Supreme Court was more relaxing than most appellate courts.”
Before arguments, Nilson did some quick maneuvering to improve his position. He had lost his case at the district level on a 2-1 vote, but the lower court’s opinion identified which particular areas in the Maryland statute it found unconstitutional. “Since I represented the state,” says Nilson, “I basically had legal control of the state’s regulations. So between the time when we had the decision and when briefs were filed in the Supreme Court, we fixed the regulations.
“We proudly appended them to our briefs, and even though they weren’t in the record, they were duly promulgated laws of the state, and the Supreme Court was able to take them into account. When the Supreme Court came out with its opinion, lo and behold, they cited the provisions of the regulations that we had fixed up and we won the case. So that was an unorthodox way of cleaning up your record.”
Lawrence S. Greenwald
On the opposite side in Roemer v. Board of Public Works, Lawrence Greenwald argued pro bono on behalf of the American Civil Liberties Union of Maryland. “I had spent a lot of time preparing, and I knew the case,” says Greenwald, “but there was an initial bout of nervousness. I often feel that way before an argument, which I frankly take as a good sign. It just helps get the adrenaline flowing. But it disappeared shortly after they started asking questions, because once you’re actually in the arena of legal combat, you need to act and need to respond and do so quickly. There’s simply no time for self-pity in the form of nervousness. You have to go and make the best argument you can.”
Greenwald spent much of his preparation time trying to understand the philosophies and legal positions of the nine justices. “In the U.S. Courts of Appeal, you might have 10 or 20 judges who sit on the appellate bench, but they don’t tell you until the night before or the morning of [the hearing] who will be on your panel. Here, you know who they are, so you want to make a judgment on whether certain justices have shown by their writings to be so committed to their points of view that it might be best not to spend your time trying to persuade them.”
Though he didn’t win his case, Greenwald was pleased with his preparation and arguments. But his pride was checked moments after leaving the court. “A reporter came up to me and said he was from The Washington Post,” Greenwald says, “and the question he asked me was, ‘How do you spell [opposition counsel] Paul Connelly’s last name?’ My wife thought that put me in my place quite well, and I agree.”
Kenneth Ravenell didn’t have to start from scratch when he went to argue State of Maryland v. Blake since he had represented Blake at three previous courts.
Blake had been charged with first-degree murder and invoked his Miranda rights, asking for counsel. While being held, an officer commented on the possibility of the death penalty and prompted, “Bet you want to talk now,” whereupon Blake talked. Ravenell argued that the officer’s persuasion tainted Blake’s statement.
“If you’ve been in other courts, state courts and other appellate courts,” says Ravenell, “generally you are 25, 30 feet away, standing at a podium by yourself, and there are three or four judges listening to your argument. But here, obviously, you have nine justices wrapped around you and you’re standing in such close proximity you cannot just see their faces but see what they think, when they smirk, when they change, whatever. It was absolutely amazing how close it is and how intimidating it can be … where you could almost reach out and touch them. And then again, we read many cases about these justices. To actually see them in person, and have all nine of them in front of you, and to be able to argue before them, that was just amazing.
“They pelted me with questions left and right. There was one point when I was arguing before the court, and the question was about whether, in fact, the government can cure a violation. And Justice Scalia said, ‘Mr. Ravenell, isn’t it sometimes better for your client to make a statement to the police and get it over with, get it done, speak to them, let them know what’s going on?’ And I said, ‘With all due respect, Justice Scalia, in my close to 20 years of practicing law, I haven’t found one time yet when it was in my client’s best interest to speak to the police.’ The entire bench started laughing and the entire gallery. Just the way it came off in that setting it was actually pretty funny, but it also got my point across, which was that, no, it is not best for my clients to speak to the police. I want my clients to always keep their mouths shut until they talk to me.”
The justices’ views on this matter—other than Justice Scalia’s comments—might never be known. Though the Supreme Court had heard Ravenell’s case in its entirety, they decided two weeks later that they had taken certiorari improvidently and dismissed the case. Therefore, the judgment of the state court, a victory for Ravenell, was upheld.
“It would be great for every lawyer who is a litigator to get a chance to stand before the ultimate court in our system and test your skills,” says Ravenell. “Those who cannot appear as litigators should certainly go there and get the experience of being in those hallowed chambers and actually see how justice is dispensed by the highest court in the land.”
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