Mr. Bursch Goes Back to Washington
John Bursch has had 14 U.S. Supreme Court cases, and won 10 of them
Published in 2017 Michigan Super Lawyers Magazine on September 5, 2017
The first thing you need to know about John Bursch, the 44-year-old owner of Bursch Law in Caledonia, is that no detail is too small to obsess over when preparing a case. Type A barely begins to describe him. Take the consideration he gave to acoustics before arguing his first case before the U.S. Supreme Court in 2011:
“You stand very close to the bench, but then it spreads out to the point where, even with your peripheral vision, you can’t see the justices on the ends,” he says. “Since the workroom absorbs sound, they all use microphones. So when someone starts to talk, you don’t immediately know where it’s coming from, because the sound comes through speakers. To prepare, I downloaded dozens of U.S. Supreme Court arguments and listened to them. It got to the point where I had memorized the sound of every justice’s voice. As soon as someone started talking, I knew who it was.”
The second thing you need to know about Bursch is that he’s unfailingly genial.
“Some advocates are very combative in their styles. He does not have that,” says Dori Bernstein, director of Georgetown University’s Supreme Court Institute, which helps to prepare lawyers to appear before the Supreme Court. “He clearly presents a strong argument in favor of the position he’s advocating, but he doesn’t come off as combative with the court. He kind of makes you want to agree with him.”
Bernstein would know. Bursch has been a familiar face at the Supreme Court over the years, which means he’s been a familiar face in her moot courts, too. When he was solicitor general of Michigan from 2011 to 2013, he argued eight times before the U.S. Supreme Court, or in 6 percent of all cases heard by the court during that period, according to The Wall Street Journal. Since then, the number has grown to 11 oral arguments and three summary reversals, giving him a total of 14 SCOTUS merits decisions.
Michigan Attorney General Bill Schuette would know, too. He’s the one who named Bursch solicitor general.
“John really is a prepare, prepare, prepare sort of lawyer, which is what you want,” he says. “He works himself hard and works the rest of the team around him hard. Everyone gets sharper and better when you have that type of work ethic. Plus, he’s pleasant. He’s not sharp or rude. He’s exceptional at the law and equally adept at communicating the law and his positions.”
Bursch, who was born in Minnesota and moved to Grand Ledge as a child, set out to be more a Steve Wozniak than a Perry Mason. “Growing up, I wanted to be a computer programmer or maybe even an engineer,” he recalls.
He followed that dream to Western Michigan University, where, as a freshman, he picked up Scott Turow’s One L, which chronicles the author’s first year at Harvard Law School.
“As soon as I finished that book, I thought, ‘That’s what I want to do,’” Bursch says. “At that point, I changed my major from engineering to clarinet performance and math. I knew it didn’t matter what major I had to get into law school, so I picked two things that I love. That worked out really well because the rigorousness of a math curriculum, and the performance and time commitment you have with a music major, really ended up making that an ideal background for law school.”
He joined Warner Norcross & Judd a year after graduating from University of Minnesota Law School in 1997, and founded the firm’s appellate practice. Soon he was arguing—and winning—cases in the state and federal supreme courts. Not surprisingly, Bursch caught the eye of Attorney General Schuette.
“The end of 2010 was kind of a key turning point for the state of Michigan,” Bursch says. “We were just at the end of what people commonly refer to as ‘The Lost Decade.’ The economy had tanked, and citizens were fleeing the state at a record rate. It was really a disaster. But we were bringing in a new House, Senate, governor, attorney general and secretary of state. There was a lot of optimism, but also uncertainty knowing that, as changes got implemented, they were going to be challenged.
“Angela and I sat down with our five kids and talked about whether this was something our family should do. It meant a sacrifice as far as my having to commute to Lansing every day, which was an hour each direction, and a very significant pay cut to go into government employment. But as a family, we decided it was more important to be part of the solution as opposed to just being on the sideline and reading about it in the newspaper.”
The generalship brought Bursch to the front lines, alright. He has been before the state supreme court 23 times since 2011, arguing such hot-button issues as medical marijuana (State of Michigan v. McQueen) and freedom-to-work laws (UAW v. Green). Then there’s Obergefell v. Hodges, arguably the highest-profile case of his career. It came before SCOTUS in 2015 and centered on Michigan’s refusal to recognize or license same-sex marriages. Bursch lost in a 5-4 decision.
“It was important in that case for us to get our message out because it was one that was not being broadcast well by the media,” he says. “To this day, most of the people who think about that case and the coverage that surrounded it think of it as, ‘Should we have same-sex marriage in the United States or not?’ Of course, that’s not what the case was about. The case was about states having the authority under the U.S. Constitution to define marriage however they want to define it.”
Even in defeat, Bursch’s trademark congeniality carried the day. “It was important to make sure that although we had a certain legal position, it wasn’t one that came as a result of animosity toward anybody,” he says. “We tried very, very hard to make it clear that people of goodwill can disagree about these types of issues.”
Bursch has made his presence felt in the U.S. Supreme Court time and again, as Schuette can attest.
“I was in Washington for a meeting with attorneys general from across the country,” Schuette says. “Justice [Elena] Kagan was speaking to us, and she said, ‘Michigan.’ She was looking for the attorney general from Michigan. She then said, ‘When John Bursch speaks, he commands the full and complete attention of the bench.’ Justice Kagan has a more liberal philosophical viewpoint [than Bursch does]. That she spoke of him in such glowing terms says it all.”
Bursch has also left his mark as a corporate litigator, dating back to his first stint at Warner Norcross & Judd (he returned to the firm in 2013 after serving out his term as solicitor general). He’s represented Fortune 500 companies, foreign governments and industry associations. One of his corporate cases was Wrench LLC v. Taco Bell Corp. in 2001, which focused on a breach of contract concerning the fast-food chain’s Chihuahua mascot.
“You had two little guys who owned a T-shirt printing shop in Grand Rapids but then came up with a great idea,” Bursch says of his clients. They created the feisty canine character and brought it to a licensing trade show, where a Taco Bell executive took notice. Negotiations took place but never fully materialized. In December 1997, the chain launched its new ad campaign featuring a Chihuahua. “From the David-versus-Goliath dynamics to the interesting contract and copyright issues to just the fun of having the Chihuahua at the back of this, it was a great case.”
Ultimately, after a federal appeal, Bursch’s clients were awarded $42 million.
Five of the cases he has litigated have had more than $1 billion hanging in the balance.
“Sometimes that will keep you up at night,” Bursch says. “You think, ‘I can’t lose this.’ On the other hand, when you take the number of zeroes after a dollar sign away, it’s still about some core legal issue, and I’ve got to find a way to frame that in a way that will persuade a judge or full batch of justices that I’m on the right side of the issue.”
That, of course, is Bursch’s forte. Dan Schweitzer, director of the NAAG Center for Supreme Court Advocacy, has helped Bursch prep for U.S. Supreme Court arguments. “From the very first moot court we ever held for John, we knew that he was gifted,” Schweitzer says. “He has a real talent for oral advocacy.”
And then there’s his Type A personality and knack for preparation. “Like, if during an oral argument, a justice asks something obscure, he’s able to point to page 923 of the joint appendix,” Schweitzer says.
“Every single argument that he has prepared for here, he knows the record inside out,” Bernstein agrees. “Any question he encounters, he’s able to provide a very coherent and useful response.”
“Interestingly,” Bursch admits, “I got a B in relaxation class when I was in college. It was the only B that I received.”
Last summer, Bursch left Warner Norcross & Judd to found Bursch Law so that he would have the freedom to take only the cases that most interest him. One such case is Tesla Motors Inc. v. Johnson, in which he’s representing Tesla in its attempt to sell automobiles directly to consumers in Michigan.
“The only way you can sell cars in Michigan is if you have an independent dealer between the manufacturer and the consumer,” Bursch says. “Tesla has sued the state and argued that the direct sales ban is unconstitutional. I think they’re right. Why should the government tell people how they have to sell their product? It’s a really interesting case because of the free-market-economy ramifications.
“I can’t imagine having a career where I would have more fun,” he continues. “I’m arguing important cases involving highly publicized issues that affect a lot of people. And I’m helping clients every chance I get.”
The totems he keeps on display in his home office are symbolic of Bursch’s occupational pride. He has 12 quills, each representing a different case he argued in DC; a hall pass that allowed him to move freely in the building; a Supreme Court LEGO set; a few snapshots with justices; and a complimentary note from Justice Kagan. Even after numerous appearances at the grand stage, Bursch remains awed.
“You walk into the courtroom and it’s so beautiful and has so much tradition. Every important decision in our judiciary in the past 80 years has taken place in that building. I don’t think you ever lose the butterflies,” he says, “which is good because you can channel that and make a better argument.”