Uphill Battle

Background: On March 10, 2006, the infamous Westboro Baptist Church picketed the funeral of U.S. Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. Snyder’s father, Albert—represented by Sean Summers, then with Barley Snyder—subsequently sued the church and its minister, Fred Phelps, for emotional distress. In 2007, a jury at the U.S. District Court for the District of Maryland awarded Snyder $10.9 million (later reduced to $5 million) in damages, a verdict that would be overturned by the 4th U.S. Circuit Court of Appeals on First Amendment grounds in September 2009. Summers filed a writ of certiorari the following December.

Right away, we had advised the client that there was slim to no chance of the [U.S.] Supreme Court hearing the case. Statistically, they take next to none, so we didn’t really think for a second that ours would be granted.

A couple of months later, I learned [the case had been granted cert] because I had several reporters call me and ask for comment.

In preparation, Summers did around eight moot courts at law schools across the country.

And we were doing this pro bono, too, so I was doing a lot of media interviews—to be completely candid, to raise money. This process cost a ton of money, and I’m not talking legal fees, I’m talking just the cost of participating in the process.

There was obviously a little anxiety, because I’d never been through the process before, so I went down to the Supreme Court for another case a couple months before ours. I just picked a case and sat through it. Then I sat through a different argument, to get the logistics down. At that point, I was as prepared as I was going to get. Obviously, those justices were going to know the constitutional law better than I would ever know it, so I wasn’t going to outsmart them—it wasn’t like I was going to come up with a case they hadn’t heard of.

Summers argued the case on Oct. 6, 2010.

One thing that doesn’t come across [on the transcript] is that there were so many questions pending that I didn’t know whose to answer first. And you don’t want to offend any of them because you need five votes. So Chief Justice Roberts would actually finger-point which justice to go to next.

At all the different moot courts, the professors tried to tell me how long I would talk before I’d get interrupted, and most of them said about two minutes. So I had two minutes memorized, down pat. Thirteen seconds into it, Justice Scalia hits me with a question, and the premise of his question was wrong factually. So my first experience, 13 seconds into the Supreme Court, is correcting Justice Scalia on the facts. Out of all of them, I will say that I had a little speech prepared to readily acknowledge that he knew more about the Constitution than I would know. 

Justice Alito gave me a softball. And I remember afterward one of my lawyer friends said, “As soon as Justice Alito started giving you that line of questioning, you should’ve just said ‘yes’ right away.” And I did; it just took me a couple of seconds to get there. I told my buddy: “That’s easy for you to say. You were sitting back in the bleachers.”

It was packed. People lined up about two days in advance to get in. The morning of, we took a cab there, even though it was only like a block, because we didn’t want to get caught up in all the chaos. There were so many people out there protesting and picketing. 

There was a huge press conference when we went out. There was a stack of microphones, larger than a basketball around. The first question was, “How did each justice vote?” And my response was, “If we didn’t get Justice Alito, we lost nine to nothing. It’s hard to tell at this point in time.”

I was not feeling too confident, and I felt we needed Scalia in order to prevail. It’s hard to guess in there, because a lot of times they’re giving you tough questions. That doesn’t mean they’ll vote one way or the other. 

The decision came in on March 2, 2011: 8-1 against Summers’ client, with Alito as the only dissent.

When we were doing our press conference, one of the reporters asked us if we were going to appeal again. I politely said, “No, this is it.” I didn’t want to say, “Appeal to who?” Who is above the Supreme Court, you know? 

I knew we had an uphill battle to begin with. Anytime you’re even implying that someone can’t say something, or there are any issues with any type of speech, it’s always an uphill battle.