The Supreme Thrill

What's it like to argue before the U.S. Supreme Court?

Published in 2007 Colorado Super Lawyers — April 2007

Tucker Trautman felt like a football player before kickoff, and James Nesland felt like the net in a tennis match. Malcolm Wheeler’s answers were interrupted, and Jean Dubofsky felt victorious before speaking a word. Arguing cases before the United States Supreme Court impacted each of these Colorado lawyers in distinct ways. They all agree, however, that they will cherish the experience for the rest of their lives.
 
TUCKER TRAUTMAN    Dorsey & Whitney
In 1985, when Aspen Highlands Ski Area claimed to be the victim of unlawful monopolization by a local skiing conglomerate, Tucker Trautman argued and won for them at the district and circuit levels. But when the Supreme Court granted certiorari, Trautman sat down with his client for a heart-to-heart.
 
“If you look at cases where they grant cert,” says Trautman, “most of the time they reverse. … There was some question as to whether or not we should hire a Washington, D.C., specialist to handle it. My client was a terrific guy, an older fellow who owned the ski area, and he said, ‘Well, I’ve ridden this horse with you so far, I’ll keep doing it.’
 
“Obviously it was a big responsibility. I was a relatively young lawyer then [38] and was very nervous going in. You’re sitting in this historic courtroom looking around at pictures of John Marshall and the like. But once the arguments started, I guess it’s kind of like football players: Once the kickoff occurs, all the butterflies went away and I was focused on what I needed to do.”
 
Trautman was amazed at how quickly his 30 minutes of argument zipped by. “You were just up there,” Trautman says, “and you were in the heat of battle and then all of a sudden it’s over and you’re walking out. Everybody is congratulating you and there’s just a flurry of activity.” The Supreme Court eventually sided with Trautman, 8-0, with Justice White recusing himself.
 
“The only thing that surprised me,” says Trautman, “was how close the justices really are. They are just sort of circled right around you. They’re not that high up; they’re just slightly higher up than you are when you’re standing down there arguing. They let you speak for about 30 seconds and then you get peppered with questions from every direction. So it is very intellectually stimulating and challenging to try to get your points across as well as deal with the various questions you get from the diverse points of view of all the justices.”
 
Another memorable incident: Justice Rehnquist was asking leading questions of Trautman’s opponent, but the lawyer wasn’t following. “Rehnquist, almost in disgust, rotated his chair around to face completely the other direction,” says Trautman. “I sort of got the impression that Rehnquist was trying to get this guy to take a more moderate position so he could get some of the other justices lined up to support it, but this lawyer was giving him a very stark and extreme position that even Rehnquist found to be absurd. And that whole rotating the chair was just kind of a dramatic moment.”
 
K. PRESTON OADE   Holme Roberts & Owen
Preston Oade felt no butterflies arguing before the Supreme Court. “I was too mad at them for taking this case to be nervous,” he says.
 
His client had been charged with arson after police searched his partially burned home and turned up incriminating evidence, which Oade moved to suppress on the grounds of a warrantless search. The Michigan Supreme Court declined to review the case. “My client asked me, ‘What are the chances that the Supreme Court will review this case?’ I said slim and none. Well, slim showed up at my office about six weeks later in the form of an order from the Supreme Court saying review granted. … What the Court was trying to do was to create a good-faith exception to the exclusionary rule. In other words, if you violate a technical requirement of the Constitution but you did it in good faith, we’re still going to let the evidence sit. And the justices had picked my case to create this new rule. And I said, ‘Oh no, you don’t. That ain’t gonna happen. I already won this case. You’re not taking this one away from me.’
 
“Here’s the thing: What does the Constitution of the United States really say and mean? It means what five justices of the Court agree it means, and if you’re arguing before the Court, you’d better know that, and you’d better pitch your case to get five votes because if you don’t you’re not doing your job.” Oade did just that, winning 5-4.
 
To get his swing vote, Oade had to bend the rules a bit. The police report that described how police rummaged through his client’s dresser drawers had not been submitted as evidence in the lower court, but Oade mentioned it in his brief. “I get a call from Justice White’s chambers saying, ‘Justice White would like a copy of that police report. Would you please send him one?’ I said I’d be glad to. Of course, I copied every other justice. So now it’s before the Court, isn’t it? And what’s the other side going to do about that? It’s not quite kosher, it’s not quite playing by the
 
CRAIG CHRISTENSEN   Lindquist & Vennum
Craig Christensen’s case originated in bankruptcy court. His client guaranteed a loan that wasn’t repaid by a debtor who had claimed bankruptcy. Christensen argued that the debtor had created his debt fraudulently and so the debt shouldn’t be discharged by bankruptcy.
 
“I knew I was going to lose all the way up the line,” says Christensen, “because the 10th Circuit had previously ruled on a similar case against my position. … My biggest concern was that the Supreme Court would not grant certiorari. Despite the split in the circuits, they don’t always straighten them out. Sometimes they wait awhile to see if the circuits will all fall into line. But once they granted cert, I felt quite confident we were going to win.” He was right. The Supreme Court unanimously reversed, 9-0.
 
Christensen had never visited the Supreme Court and was glad for a procedural start to the arguments. “If you’re the petitioner, you get a little 3-by-5 card and it says, ‘May it please the Chief Justice and this Court.’ That way, there’s no nervousness; you don’t have to worry about what to say first. They call your case, you go to the podium, you read the 3-by-5 card, and then you’re off and running. And that makes all the difference in the world, at least it did to me. Soon as I got those words out of my mouth, I was already talking to them, and God hadn’t struck me dead.”
 
Also laid out for Christensen were two goose quill pens to keep as a memento. He gave them to his two sons, ages 7 and 11, one of whom fell asleep during his argument. His mother and father also attended, though they originally balked at going. “They said, ‘Well, it’s February. It’s kind of cold,’” Christensen remembers. “They had a bowling tournament or something and they said, ‘We’ll go see you next time.’ I said, ‘There is probably never going to be a next time.’
 
“My father later said he was very proud. He was amazed that here I was in the Supreme Court and not giving any ground, answering their questions and arguing. I said, ‘Dad, I do that with everybody. I’m paid to.’”
 
JEAN E. DUBOFSKY   Jean E. Dubofsky
Jean Dubofsky’s case was a challenge to abolish a Colorado voter initiative stating no individual could make any claim of discrimination on the basis of homosexual orientation. “Our argument to the U.S. Supreme Court was basically that you don’t determine that sexual orientation is a suspect clarification,” Dubofsky says. “You enforce existing civil rights protections. And we were arguing that the very lowest level of equal protection review would be sufficient. … We used the materials that had been circulated the night before the election to every doorstep in Colorado; it was a broadsheet that used the same kind of language that in the past was used against Jews and blacks—you know, they’re horrible people and you don’t want anybody marrying them and all that.”
 
She knew beforehand that several of the justices were aligned against her position. Justice Scalia had already announced at a Colorado University law event three weeks prior how he was going to vote, and during oral argument he made certain his position was clear. “When various justices asked [my opponent] Tim Tymkovich questions, Tymkovich would give his answer and Scalia would say, ‘Now, Mr. Tymkovich, don’t you really mean …’”
 
Needless to say, Dubofsky didn’t plan her argument to sway Justice Scalia. “We had figured out who our swing votes had to be,” says Dubofsky. “We really thought that Justice Kennedy was the person we had to convince. … Tim Tymkovich had to go first because it was the state that was appealing. … He was asked the first question by Justice Kennedy, and Kennedy basically said to him, ‘Has there ever been a law as terrible as this?’
 
“And there was this huge sigh that went up through the courtroom. That was the case right there in the first question. That’s a feeling I’ll never forget. I just thought all I have to do is avoid making any mistakes. The courtroom was packed, there were long lines to get into the room where you could listen to the argument. Everyone in there had to sit shoulder-to-shoulder because the seating was so restricted and the chairs were so narrow. So when the whole courtroom gives out this sigh, you can imagine the drama from that.”
 
Since Justice Scalia had almost taken on an advocate’s role earlier in oral argument, Dubofsky felt free to answer his questions more sharply than she normally would. “He asked me where in this veryfat appendix that had all the lower-court rulings in it—and it must have been 3 inches thick—had the state Supreme Court interpreted Amendment Two in the way that I was arguing. Well, what I’ve done for years is write in the margin of the first page of my notes the page numbers for things I could possibly be asked about. Lo and behold, he asked me the page number. First time in argument anywhere I had ever been asked the page number in the record. He wanted me to waste my time looking it up, but I could tell him where it was. So I said it was on page 182, or something like that, and everybody dutifully opens their appendix to the page number. He starts reading, and I said, ‘No, your honor. It’s the sentence before that. The one that begins, ‘Amendment Two means …’
 
“Well, he was so angry he slammed his appendix shut and threw it at the little rail that was between us … Oh, it was fun!”
 
Dubofsky won, 6-3.
 
MALCOLM WHEELER   Wheeler Trigg Kennedy
When American Honda Motor Co. Inc., was sued for not having a driverside airbag in its 1987 model-year Honda Accord, which the plaintiff contended was required by common law in Washington, D.C., the company brought in Malcolm Wheeler, who had to learn both the specific facts of the case and the rulings of various courts throughout the country. “There had been literally hundreds of these cases filed throughout the country against all the auto manufacturers,” says Wheeler. “The Supreme Court took the case because there were conflicting decisions in the lower courts.”
 
At the time, a Federal Motor Vehicle Safety Standard required auto manufacturers to phase in passive restraints over a five-year period. Wheeler asserted that the suit against his client was pre-empted by federal law, citing the U.S. Constitution’s supremacy clause.
 
“This is a peculiar issue, this federal pre-emption issue,” Wheeler says. “I went in believing that I wasn’t going to be able to get Justice Stevens or Justice Ginsburg, believing that it wouldn’t be difficult to get Justice Scalia and Justice Thomas, and therefore thinking it was the other five I had to pitch to. And that’s really how it came out, by the way: my favor, 5-4.”
 
Having handled a number of cases on airbags, Wheeler understood what key points might trouble the justices and delivered answers in nugget-like statements. “There seemed to be a much greater premium on having the answer to a question be very crisp because you weren’t going to get an opportunity to give an answer that lasted,” he says. “It was much better to have your answers be in the neighborhood of 10 to 25 seconds.”
 
The justices started firing questions at Wheeler seconds into his oral argument. “I’m not sure I got a sentence out,” he says. “It was much more active in the sense that … the justices were less deferential to each other’s time. I had never argued in front of a court before in which one member of the panel would interrupt my answer. Before I finished answering another panel member’s question, they’d ask me another question … in the course of that day—I stayed for other arguments too—it was not uncommon to see one justice say, ‘Hey, we should finish answering my question first.’ It was more intrusively active than the other appellate courts I have argued in front of.”
 
JAMES NESLAND   Cooley Godward Kronish
Before James Nesland argued his case, he attended five days of Supreme Court hearings, conducted two days of moot court and dug through the Supreme Court record to unearth decisions related to his own.
 
“When you argue to district courts and circuit courts, you argue based upon precedent and case law that either exists or for which you’re advancing a change or an extension of a law,” Nesland says. “When you argue before the Supreme Court, [the justices] make precedence, they establish case law. … Their decisions go beyond the particular case or the particular parties before the court. They’re looking at the broader perspective of what this policy and the law ought to be across the country with respect to the issue before them. It’s a completely unique experience.”
 
Nesland’s case concerned whether the court had the supervisory ability to dismiss a grand jury indictment due to prosecutorial misconduct. The Supreme Court ruled against Nesland, 8-1, that it could not because the prejudice can be cured and corrected during trial.
 
“It was plain to me,” Nesland says, “that most of the questions the justices were asking were not directed to me; they were directed to other justices. They were an effort by one justice to persuade another justice of his or her position.
 
“It’s almost like you’re the net and they’re playing tennis and the ball keeps going back and forth. You just watch. But they’re clearly advocating their positions through their questions to their fellow justices. … When a justice speaks, obviously you look at that justice, but that justice was looking at whichever other justice they were making their point to. … All nine of them, in the period of time I was there, stated their position in one question or another.”

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