The Supreme Thrill
Three attorneys tell their stories of arguing before the nation’s highest court
Published in 2006 Mid-South Super Lawyers magazine
By Gretchen Roberts on November 2, 2006
There’s no greater legal stage than the U.S. Supreme Court. And there’s nothing as nerve-wracking and exhilarating as the 30 minutes spent arguing a case there.
Months of preparation can precede that half hour, and it’s often needed –– more often than not, the attorney is not allowed an uninterrupted display of TV-style rhetoric, but is barraged with questions from the justices. The ability to thrust and parry is required, as is a bit of luck.
No matter how they get there, lawyers who argue before the Supreme Court never forget the experience. Here are the memories of three who hit the big time.
JOUSTING WITH SCALIA
John A. Lucas had mixed emotions when he found out he would be appearing in front of the Supreme Court in 1992. Lucas, a partner in the Knoxville office of Hunton & Williams who focuses on commercial litigation, had been arguing a complicated case involving a $7 million bankruptcy claim. After a series of appeals, the Supreme Court granted Lucas’ opponent’s petition for a writ of certiorari.
“I didn’t know whether to be upset because I had essentially lost to my adversary on the petition for writ of certiorari, or happy because I was going to the Supreme Court,” Lucas recalls. “Eventually I decided the appropriate thing was to be happy, and I called my opponent and told him I probably owed him a steak dinner.”
Lucas spent about six weeks intensely preparing for the case. He likens the process to training for an athletic competition. “You have to force yourself to go through the discipline of preparation,” he explains. “And I wanted to win. It would have been a great experience just to have the chance to argue in front of the Supreme Court, but I knew it would feel a lot better to say ‘I won’ instead of ‘I lost.’”
Aided by a partner in his firm who had clerked at the Supreme Court, Lucas mapped out a strategy. Knowing he’d have to win at least five votes, Lucas read every Supreme Court bankruptcy decision in the last half-century to see how the court and individual justices approached the issue.
Though Lucas won the case on a 5-4 decision, his strategy failed him on one level. “My favorite justice is Antonin Scalia,” Lucas says. “I like his philosophy and his writings — he’s a wonderful writer and a great justice. I wanted to get his vote badly. But he voted against me!”
But Lucas did get the satisfaction of engaging in an intellectual sparring match with his hero –– Scalia was his most aggressive questioner during the half-hour argument.
Losing Scalia’s vote wasn’t the worst thing that could have happened that day. Lucas recalls returning from the lunch break with his family, who had come up to watch. He sat at one of the tables directly in front of the elevated bench where the justices sit, waiting for his case to be called. As he read over his notes, the court marshal came over and tapped him on the shoulder.
“I think your son wants to talk to you,” the marshal said.
“I said, ‘What?’” Lucas recalls. “Here I was, getting ready to argue the most important case in my legal career, and my son wanted to talk to me?”
He got up and walked back to the bar, where his family was sitting with big grins on their faces. “My son said, ‘Dad, before you argue in front of the U.S. Supreme Court, do you want to zip up your pants?’”
Lucas looked down, and sure enough, his carefully chosen white shirt was sticking out of the wrong place. “My son saved me from great public embarrassment,” he laughs. “Was I nervous? Oh, no.
“I was overwhelmed with the grandeur of the building and the importance of what goes on there,” Lucas says. “I felt very humbled to be a part of it. But at the same time, I was caught up in the competitiveness of arguing my case. I wouldn’t trade this experience for anything I’ve done in my career.”
A MEMORABLE FIRST CASE
In the fall of 1971, 26-year-old James F. Blumstein represented himself in front of the Supreme Court.
Blumstein, a university professor of constitutional law and health law and policy at Vanderbilt University Law School in Nashville, was fresh out of Yale Law School and not even admitted to practice law in Tennessee when he filed the case.
“I moved to Nashville in 1970 to teach at Vanderbilt,” Blumstein says. “I wanted to vote in the primary, but you had to live in the state one year and the county 90 days before you could register to vote. So I challenged the law in Nashville, prevailed in the trial court, and then in the state court. At the time, the appeal was directly to the U.S. Supreme Court.”
Blumstein never imagined the case would make it that far, but he didn’t count on the competitive spirit of David Pack, Tennessee’s attorney general. After the case was decided in Blumstein’s favor in the federal district court, Pack agreed in private that Blumstein had made some strong arguments and that the law might be anachronistic. But when they opened the door after the meeting, more than a dozen television, print and radio journalists were waiting.
One of the reporters stuck a microphone in Pack’s face and asked, “Are you going to appeal?” The attorney general looked at all the lights and cameras and made a quick decision. “I’m going to fight it all the way!”
By the time the case went to the Supreme Court, Blumstein had passed the bar exam and was admitted to practice in Tennessee, but hadn’t been practicing long when the time came to head to D.C.
Blumstein believes his youth and inexperience actually worked in his favor. “I prepared for months, and of course there was a lot of pressure. But since I was my own client, I only had an obligation to myself. Plus, I was 26 and brash,” he says, laughing.
The most difficult part of the argument was when Chief Justice Warren Burger questioned him. Blumstein’s case came before the Supreme Court shortly after the 26th Amendment was passed, granting 18-year-olds the right to vote in state and federal elections. During the argument, Burger asked Blumstein what would happen if the state raised its voting age to 25.
“I said, ‘Well, your honor, I think that’s covered by the 26th Amendment.’ But the chief justice said, ‘No, the 26th Amendment only covers federal elections.’
“I was pretty sure Burger was wrong, but it gave me great pause. I had a horrible moment of doubt, but then I noticed Justice Stewart rolling his eyes and slapping his forehead, as if to say ‘I can’t believe the chief justice is making this mistake!’”
Burger finally realized his error, but in the end was the only dissenting vote in a 6-1 decision in Blumstein’s favor.
Years later, Blumstein says, a reporter from a Chicago newspaper called him to ask about the incident. Since Burger was still chief justice at the time, Blumstein declined to comment, only confirming the facts on the transcript. “Apparently this reporter had my colloquy with the chief justice on a list of top 10 Burger faux pas,” Blumstein says.
It’s unusual to graduate from law school and go right into teaching, as Blumstein did more than 30 years ago. He remembers feeling worried that he didn’t have any practical experience in the courtroom, but a Supreme Court win on his first-ever case eliminated his concern and that of his colleagues at Vanderbilt.
Since then, Blumstein has argued another case before the Supreme Court, and has been actively involved in five total, all of which were successful. But that first case will always stay with him. “It was a pretty good way to start.”
GETTING ANOTHER SHOT
The first time he appeared in front of the Supreme Court, John Wesley Hall Jr. knew he was going to lose. The owner of his eponymous firm in Little Rock, Hall was appointed in 1988 by the federal judge’s office to take the case of a petty criminal with four prior convictions. Hall knew the climate of the court in those days wouldn’t be favorable to his client.
“I knew we were dead meat going in,” Hall says. “So the first time I was up there, I made up my mind that I at least wanted to prepare well and look good.”
Hall’s prediction was correct: He lost that case in a 6-3 decision, but the experience gave him confidence and prepared him for his second Supreme Court case in 1995.
As a specialist in Fourth Amendment law, Hall became enthralled by a drug crime case in Hot Spring County, Ark. Although the police had a search warrant on the home, they hadn’t knocked before entering. Hall took on the case pro bono, arguing that police have a duty to knock and announce. He found a 750-year-old statute that supported his position — an English law dating from the Middle Ages requiring the king’s men to announce their purpose before entering a home.
“I took this case because I wanted to make Fourth Amendment law,” he says. “A lot of big law firms will throw a dozen lawyers on a brief, and they’ll crank it out in a week. But I did it all alone. I was a sole practitioner, and I already had a wealth of knowledge about the Fourth Amendment.”
Still, Hall knew he had to prepare thoroughly, even though he had a strong case. “This time, it was my case to lose,” he says.
He arrived in Washington, D.C., a week early and watched Supreme Court arguments the week before his own case. He watched one lawyer arrive with note-filled file folders, and another with no notes at all.
“That second [lawyer] made me realize that I knew much more about the case than the Supreme Court did, so I stopped worrying about it,” Hall says. “I thought, if that guy can argue without a crutch, then so can I. I went up there with one piece of paper with four words written on it — subject matters to turn to if the questions stopped.”
Unlike many lower courts, where an attorney can wax poetic on a subject for 15 minutes or more uninterrupted, the Supreme Court justices don’t allow unlimited talk time. “They pepper you with questions right away,” Hall says. “The key is knowing the subject matter better than the justices, and to be able to think on your feet and respond quickly to difficult questions.”
Hall adds that not all the questions were challenging. “Sometimes the justices you know are in your corner ask questions because they’re trying to show up another member of the court. That’s part of the internal politics of the court.”
The Supreme Court affirmed Hall’s position in a 9-0 vote later that year. “I was on an adrenaline high for about a week,” he recalls. “It’s better than hearing ‘not guilty’ after a long trial.”
Hall hopes he’ll stand in front of the Supreme Court again, though he knows that day may never arrive. “I was lucky enough to go at 40 and 47 years old,” he says.
Still, Hall likes to travel to Washington as often as he can to watch oral arguments on Fourth Amendment cases. “My son goes to Chicago to watch the Cubs play,” he says. “Watching Supreme Court arguments is the best entertainment I can get.”
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