The Supreme Court Whisperer

Jean-Claude André's high court trifecta        

Published in 2008 Southern California Rising Stars — July 2008

When Jean-Claude André was a second-year law student at the University of Virginia, he pledged he would one day argue a case before the Supreme Court. André didn't just hope for his dream to happen by good luck. Like the good lawyer he is, he studied what he had to do to make it happen. Which is why André, who just turned 32, has already appeared before the Supreme Court—three times.

His quest began when he saw a newspaper article about a young lawyer named Tom Goldstein who had appeared before the Supreme Court. The article laid out Goldstein's path: He took pro bono cases the Supreme Court would likely review because of a Circuit Court split, but which were low-profile, involved little money or otherwise wouldn't attract the attention of many lawyers.

André had found his map. After he graduated, he clerked for a federal district judge, worked at a large New York firm, and then clerked for a 9th Circuit judge—all the while waiting to join the Supreme Court Bar, which requires three years of practice. Once he hit that mark, he accepted a position at the small patent prosecution firm Ivey, Smith & Ramirez, partly because it allowed him to devote a large amount of time to pro bono cases. "Chevron was not going to hire me to argue a case for them before the Supreme Court," he says.

At Ivey, Smith's primary duty was leading a complex case in which computer programmers whose work was outsourced to India were denied special unemployment benefits because the Labor Department declared the software they made wasn't a "product." That case took up an average 20 hours a week, and André was free to do what he wanted with the rest of his time-find more billable hours or work unpaid on pro bono cases.

Scouring 9th Circuit decisions in his spare time for pro bono causes, André found some intriguing procedural questions regarding the Prison Litigation Reform Act's exhaustion provision. He used a little-invoked rule that allowed him to consolidate two cases, hoping to capture the eye of the Supreme Court with this unusual tactic. It was after the appeal was accepted, André says, that the hard work began—writing the brief. "You are presenting a hugely complex jigsaw puzzle, and the last thing you want to do is give them a box with a couple of pieces missing," he says.

He developed a routine he has followed in each subsequent Supreme Court appearance. A week before his court date, he flies into Washington and does two or three moot court appearances. He arranges for the first of the two or three moot courts to be sympathetic to his case. "That allows me to jump out of my role and ask advice on how I should respond to a question," he says. "It's more consultative."

The last moot is conducted at the Georgetown Supreme Court Institute in an exact replica of the Supreme Court—with the lectern only a few feet from the Chief Justice. "The moot covered 95 percent of the questions in the real oral arguments," he says. "My only regret is that I didn't do the first moot before filing my brief."

André wanted several of his relatives to be there for his first Supreme Court appearance. Arguing lawyers are typically allotted six tickets but he was able to find a few more. His in-laws came down from New York and, beyond his Court appearance, some of them saw his newborn son for the first time. His wife, Sarah—an attorney who just completed a clerkship in the 9th Circuit—also attended.

"Walking into the Supreme Court is awe-inspiring," André says. "What struck me is how everyone tried to make me feel comfortable, from the clerks to the deputy marshals. They kept asking things like, ‘Do you have enough water in your glass?' It was like being in a three-star restaurant."

Arguing before the Supreme Court is the inverse of lower courts, he says. "You start with your punch line, because the justices can interrupt with a question at any time. If they don't interrupt, then you lay the foundation down."

That first case brought a 9-0 decision in his favor. In the Court's opinion, Chief Justice John Roberts cited two "obscure, lower court" cases that André had never heard of. "The cases were in support of my position, but that was an important lesson for a workaholic like me," he says. "No matter how exhaustive you think you've been, there is always more you can do."

His next Supreme Court case a few months later concerned the rights of parents of disabled children to litigate special-education disputes in federal court without retaining a lawyer. Justice Antonin Scalia acknowledged André's previous appearance but wasn't supportive of his case. When André discussed the merits of having district judges rule on the special-education cases, Scalia responded, "And do it right after reading pro se prisoner petitions, right? You'd have a nice evening's work."

André won a 7-2 decision in his favor, and Scalia authored the dissent.

Last October 29, one day shy of the one-year anniversary of his first appearance, André appeared before the Supreme Court a third time for another prisoner litigation case. The next month he left his practice to become an assistant U.S. attorney in the Central District of California (in Los Angeles).

"I won't be arguing any cases before the Supreme Court—for a while at least," he says ruefully. "If any of my cases do go to the Supreme Court, the solicitor general's office will take them over." 

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