The Supreme Thrill

Three attorneys tell what it’s like to appear in front of the nation’s highest court

Published in 2007 Ohio Super Lawyers magazine

By Kevin Featherly on December 22, 2006

The tug-of-war between states’ rights and the federal supremacy is alive and well, and as unsettled as ever. Each of these three U.S. Supreme Court cases was important—and in one instance, literally explosive. And the attorneys involved have great stories to tell about their day in the spotlight, arguing before the highest court in the land.

Fate seemed to smile on Kim Martin Lewis during her sole appearance before the U.S. Supreme Court on Oct. 31, 2005, in one of the first cases ever tried before new Chief Justice John Roberts. First, she won. Second, the case was historic, not only for the substance of the decision, but because it was the last in a long line of 5-4 verdicts decided by the crucial swing vote of retiring Justice Sandra Day O’Connor.
Perhaps fate felt it was too kind; midway through her argument, providence threw a curve ball. A loud blast—it sounded like a gunshot or a flash grenade—left the justices wide-eyed. Federal marshals charged forward to protect them and Lewis frantically scanned the courtroom to make sure her kids in the audience were OK. Several moments later, Justice Stephen Breyer issued his verdict: “Lightbulb went out!”
“You could see a sigh of relief from the justices,” recalls Lewis, a bankruptcy attorney and partner in the Cincinnati-based law firm Dinsmore & Shohl. She recalls that Roberts first broke through the tension, joking that the exploding bulb is a trick that always gets played on incoming chief justices. “Then Justice [Antonin] Scalia said, ‘Happy Halloween!’” Lewis recalls. “The whole courtroom just busted out laughing.”
That disruption would have been disconcerting even for an assistant solicitor general who makes frequent appearances before the High Court, but it had the potential to throw a Supreme Court neophyte like Lewis completely off her game. However, she got some unexpected aid from the bench.
“Right after the bantering back and forth, Justice [Anthony] Kennedy looked at me and he just said, ‘Take your time. We’re really interested.’” It was a moving display of kindness, she says. “He obviously sensed that for a first-time litigant in front of the Supreme Court, you’re going to be nervous to begin with,” Lewis says. “But to have a lightbulb explode in the middle of their argument, that’s got to just be terrifying.”
Kennedy may have won Lewis’ admiration, but she did not win his vote. The case, Central Virginia Community College v. Katz, cut to the heart of the court’s long-running conflict over federalism. A bookstore chain that had operated on Virginia college campuses—constitutionally considered arms of the state—filed for bankruptcy. But just beforehand it paid some campus debts, which a court-appointed trustee attempted to reclaim in order to distribute the business’ assets equitably among creditors. The colleges refused to return the cash, citing Virginia’s sovereign immunity from lawsuits.
After losing that argument three times—in local bankruptcy court, in a federal district court and finally in the 6th District U.S. Court of Appeals, Virginia appealed its case to the Supreme Court. Lewis, representing the trustee, knew she faced an uphill battle. In the 1996 Seminole Tribe v. Florida, the Court ruled 5-4 that Congress’ Article 1 powers to conduct interstate commerce did not allow the federal government to breach states’ constitutional lawsuit immunity. To win, Lewis knew, she needed to win over either O’Connor or Kennedy; she got O’Connor. Lewis thinks she was swayed not by grandiloquent constitutional arguments, but by a simple proposition that “bankruptcy is different.”
“Bankruptcy is different than the patent clause, the commerce clause, the Indian commerce clause—it has its own unique and special powers,” Lewis says. “That had to have come across in the argument and the briefs, and that’s what we really wanted to stress. Because we knew it was a slam-dunk loss if we went up there saying, ‘Please overturn Seminole Tribe.’”
It’s been almost 14 years since Marvin Sicherman argued the losing side of United States v. Nordic Village, another sovereign immunity case that was tried before the Supreme Court on Dec. 9, 1991. And while Sicherman, principal of the bankruptcy law boutique at Cleveland-based Dettelbach, Sicherman & Baumgart, fully expected—even predicted—the 7-2 result, he never agreed with it and he hasn’t changed his mind. “I walked out of there and said, ‘Boy, am I dumb: I was over 60 years of age before I realized that the Supreme Court is a legislative body, not a judicial one,’” says Sicherman. “As you can tell, I’m a little pissed off that I lost in Nordic Village.”
The case was brought after an officer for a bankrupt Ohio company obtained a cashier’s check from the company’s account, payable to the IRS, and directed that the funds be applied against his personal 1040 tax liability. A court-appointed trustee filed suit to recover the money from the IRS. The case, quite obviously, was similar in many ways to the later Katz case argued by Lewis. Every way, that is, except its result, says Sicherman.
Writing for the 7-2 majority, Justice Scalia held that the federal bankruptcy code does not waive the federal government’s immunity from a bankruptcy trustee’s claims for monetary relief. The court reversed an earlier 6th District U.S. Circuit Court of Appeals ruling, which had upheld lower-court rulings against the government rejecting the notion that sovereign immunity inoculated the government from monetary judgments against it.
Sicherman calls the ruling ridiculous, asserting that it pivoted on the fact that the trustee sought equal value of the money turned over to the IRS, instead of the specific dollars—the very pieces of hard currency scrip—that the IRS had received. “I never claimed to be a good loser,” he says. “But goddammit, drawing a distinction between whether it’s the same dollars or different dollars strikes me as rather odd.”
The court had certified the case as a sovereign immunity issue, but Sicherman all but ignored that, arguing it instead as an in rem property case. “My entire argument was predicated on ‘you took the wrong case,’” he says. “[The government] took the property out of the possession of the bankruptcy court, an unauthorized post-decision transfer.” Chief Justice William Rehnquist at one point complained. “He said to me, ‘Do you know what the question is that we certified? When are you going to get to sovereign immunity?’” Stubbornly, Sicherman responded, “As soon as I finish the next statement on in rem jurisdiction.’”
Still, Sicherman seems to have gained at least two fans. John Paul Stevens and Harry Blackmun sided with him, arguing that it was wrong for the government to essentially receive stolen money from the bankruptcy court and then refuse to return it. The two liberal justices, who sat side-by-side on the bench, also provided Sicherman with the brightest moment of an otherwise disappointing day.
“One of them throws a question at the government lawyer,” Sicherman says. “Then he turns to the other one and mumbles, ‘We sure shot the shit out of that one, didn’t we?’ You couldn’t miss it.”
To hear Bob Tait tell it, it didn’t matter whether he won the case he argued before the U.S. Supreme Court on Jan. 19, 1988. Goodyear Atomic Corp. v. Miller was ostensibly a workers’ compensation case, filed after a worker fell off some scaffolding at a privately run, federally controlled uranium enrichment facility near Piketon. The man broke his leg, and because the facility violated state safety regulations, he stood to receive an additional 15 to 50 percent supplement to his $9,000 medical settlement. The state would recover that money from the company that ran the facility for the government.
The U.S. Department of Energy balked, contending that state safety regulations didn’t apply to a federal uranium enrichment plant. A suit was filed, and Tait was brought in to represent Goodyear Atomic Corp., the tire manufacturer subsidiary that operated the plant as the federal government’s fully indemnified surrogate.
“This was a workers’ comp case in name only,” says Tait, currently a senior partner at Vorys, Sater, Seymour and Pease of Columbus. “This was clearly a states’ rights issue, and more than that a supremacy clause issue with regard to the right of the federal government to control its facilities within the boundaries of a state.”
It probably was a good thing that Tait wasn’t emotionally invested, because he lost, 6-2—the court granted the worker the supplemental award. But for Tait, it was a case of losing the battle, winning the war. The court did not overturn the supremacy clause with respect to nuclear facilities, but merely ceded limited authority to Ohio over the specific state safety regulations at issue.
“We didn’t really care how the case came out as long as the court reaffirmed that these facilities were subject to the supremacy clause under the specific governance of the federal government and the Department of Energy,” Tait says. “We won what we were interested in winning.”
Tait says his half-hour in front of the Supreme Court was fascinating. The justices were pleasant and professional, he says, with Scalia asking especially incisive questions on supremacy clause issues. However, Justice Thurgood Marshall, then in failing health, actually nodded off during the argument. (Ironically, he would write the majority opinion.) And Justice O’Connor tended to ask testy questions that Tait felt weren’t precisely on point. “I finally said something to the effect of, ‘Your honor, I don’t think that’s the major issue involved in this case.’ And she said, ‘I’ll decide what the issues are, counsel.’”
Tait was suitably chastened, but he was quickly rescued. “Scalia sort of came to my aid,” he says. “He thought that the issue was what I thought was the issue.”
Still, no part of Tait’s experience was as humbling as that of the attorney arguing the case before his that morning. As the counselor began his argument, he gestured—and dumped a pitcher of water everywhere. Chief Justice Rehnquist reassured the lawyer, but Tait took pains to avoid repeating the performance. “I stayed away from that water,” he says.

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