In the U.S. Supreme Court, time is everything.
As an arguing attorney, you have 30 minutes—and sometimes less—to persuade the court of last resort to rule your way on a matter that may set legal precedent for decades to come. Instead of facing one judge, you’re facing nine. And unlike the New Jersey Supreme Court, where an attorney can request a set amount of time, the U.S. Supreme Court permits justices to ask questions from the moment an attorney’s time begins.
“It’s a very daunting experience,” says Laurence Reich of McElroy Deutsch, who has appeared before the Court in two cases. “There have been people who’ve gotten up to argue, and they’ve opened their mouth, and nothing comes out. One fellow fainted dead away. So just surviving is the first order of the day.”
These three New Jersey attorneys did better than survive. They won.
For John J. Gibbons, retired chief judge of the 3rd Circuit U.S. Court of Appeals, 20 years on the bench proved to be a steadying influence. “When you’ve been on the other side of the bench for a long time, you know enough not to be intimidated,” he says.
Both cases that he argued before the Court originated in the Gibbons Fellowship at Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. This program, which he runs, allows two or three full-time fellows to spend two years working exclusively on pro bono cases. “After I left the bench, my former partners approached me [to propose it],” Gibbons says. “The idea was to bring a big firm’s array of resources to bear on litigation on behalf of people with important causes.”
The first case he took to the Court, in 2000, was Williams v. Taylor, a habeas corpus case brought on behalf of a man convicted of robbery and capital murder who was sentenced to death. Gibbons argued that the defendant’s right to effective counsel was violated when his attorney failed to discover and present significant mitigating evidence to the sentencing jury. The Court agreed, ruling 6-3 in his favor. “It was the first time the Court had awarded relief on a habeas corpus petition based on ineffective assistance of counsel,” Gibbons says.
The second case, in 2004, was the landmark Rasul v. Bush, brought on behalf of 16 detainees held at the Guantanamo Bay naval base in Cuba, which was consolidated with Al Odah v. U.S. for argument. “We knew it was going to be a significant case, because the executive branch was taking such extreme positions,” Gibbons says.
One key issue was how habeas relief applied to detainees held on Cuban soil. Says Gibbons, “The Court of Appeals for the District of Columbia had said that the habeas corpus writ didn’t apply, because Guantanamo was subject to Cuban sovereignty, not U.S. sovereignty. That, as a matter of history, is just garbage. Having spent a year there when I was in the Navy, I know better.”
Thanks to four moot court sessions, Gibbons was well prepared for his argument. “I began to get a series of questions from Justice Stevens that pretty much telegraphed the way he was thinking, and I began to get some questions from Justice Scalia that telegraphed the way he was leaning. My job was to try to read the other justices and respond to their questions in the way that would put them in Justice Stevens’ camp rather than in Justice Scalia’s camp.” Once again, the Court ruled 6-3 in Gibbons’ favor—a victory for the plaintiffs and also for the Gibbons Fellowship program.
“We’ve had a lot of very important pro bono cases in 16 years, but clearly this is the most important one,” Gibbons says.
George Conk, who practices at Tulipan & Conk and is a full-time professor at Fordham and Brooklyn law schools, has his own experience with landmark cases. He wrote an amicus brief in the 1993 case Daubert v. Merrell Dow Pharmaceuticals, a landmark ruling in the area of scientific evidence.
The issue was how to ensure that the decisions in a Bendectine case were based on reliable scientific evidence. At the time, the New Jersey Supreme Court took a flexible approach, asking judges to decide whether the conclusions presented in court had been reached through sound methods. The U.S. Court of Appeals for the 9th Circuit took a “general acceptance” approach, requiring scientific evidence to be excluded unless generally accepted by experts in the field.
For Conk, it was an opportunity to test himself. “There are certain instances in your life when you work up to a new level, when you set a new personal best,” he says. “It’s certainly not every case in my life that I’ve gotten drafts at 2 in the morning and responded by 3.”
Conk submitted a brief on behalf of a group of philosophers and science historians that included Harvard scientist Stephen Jay Gould. “Scientists tend to adhere to their views for a long time, even as the evidence crumbles at their feet,” Conk says. “It took a long time for the Copernican view that the earth went around the sun to be accepted, so you can’t use what’s generally accepted as a test of what makes sense.
“We argued that judges need to make an independent assessment of the admissibility of the evidence and if it had a scientific foundation.”
The Court ultimately agreed. “They embraced the idea that a judge has a gatekeeping role,” Conk says. It was a hugely influential decision, particularly in civil cases, and has already been cited thousands of times. “As it’s worked out in the last 15 years, it has probably caused more sorrow to plaintiffs than to the defense. Judges, particularly in civil cases, have felt free to substitute their own often-primitive ideas about scientific evidence for the views of experts. That’s been the cause of much regret by plaintiffs—that the Court gave trial judges the right to make decisions about scientific evidence.”
Like Gibbons, Laurence Reich has taken two cases before the Court, both involving Employee Retirement Income Security Act (ERISA) matters. In 1981, Reich argued on behalf of General Motors Corporation in Alessi v. Raybestos-Manhattan, Inc., and in 1995 he was back with Curtiss-Wright Corp. v. Schoonejongen.
“It was awesome,” Reich says. “The epitome of practicing law.”
The first case involved the workers’ compensation plan at General Motors. Under its collective bargaining agreement, the car company was able to limit benefits for workers who filed for workers’ compensation, after they had retired and begun collecting their pension. Individuals given workers’ compensation awards would see that amount subtracted from their pension—essentially preventing anyone from collecting both a full pension and workers’ compensation at the same time.
The second case involved a similar issue for Curtiss-Wright Corporation and whether it could lawfully terminate medical benefits for retired employees.
He emerged victorious both times. Reich says the secret to his success lay in the well-organized index card. “You’re told at the outset that the Court does not favor a reading of the oral argument, so I wound up boiling each case down to cryptic notes on a 5-by-8 index card,” he says. “The argument has to be in your head, not on paper. All that’s on paper are notes that prompt you not to omit certain points.”
Nervous but thoroughly prepared, Reich had the presence of mind to banter with one of the justices. “In the case before mine, Justice Souter had asked the attorney a question using a word that sounded like ‘floor.’ [After some confusion], Justice Souter smiled and said that the word he had actually used was ‘flaw,’ but that it sounded different in his New Hampshire accent,” Reich says. During his own argument, Reich happened to use the word “flaw.” “Justice Souter interrupted me and said, ‘I like the way you pronounce that.’ And I said, ‘Well, that’s the way we say it in New Jersey, Justice Souter.’”
In the end, Reich believes that the secret to winning a case at the Supreme Court level is to bring a winning case there in the first place. “To use an old expression, you can’t turn a sow’s ear into a silk purse,” he says. “I would like to say that I won because I was so overwhelming in my brief and my oral argument. But the fact of the matter is that I won because I should have won. I transformed a case that could have been lost into one that wasn’t.”