The Supreme Thrill

Four Virginia lawyers on arguing before the U.S. Supreme Court

Published in 2007 Virginia Super Lawyers Magazine — July 2007

Ammon Dunton was impressed by the customs, and Stuart Raphael was called a rock star.

Anthony Troy made ’em laugh, and William Hurd turned the building’s architecture to his advantage.

Arguing cases before the U.S. Supreme Court affected each of these lawyers in distinct ways. They all agree, however, that they will always cherish the experience.

Stuart Raphael: Hunton & Williams

“It was one of the best days of my life,” says Stuart Raphael, “right up there with getting married and having children.”

Raphael represented Virginia in a water rights case against Maryland in 2003. Virginia wished to build a water intake pipe in the Potomac River, but Maryland refused permission, stating that, since the river boundary between the states extends all the way to Virginia’s shore, Maryland could regulate activities on Virginia’s side as well. The Supreme Court wound up siding with Raphael and Virginia, 7-2, citing provisions in the Compact of 1785 that protected Virginia’s water rights.

“The history of this thing covered four centuries and it was just a heck of a lot of fun,” Raphael says. “We covered basically every century since 1600. We dealt with the original grant from King Charles I to the first Lord Baltimore, the Compact of 1785, letters from George Washington, George Mason, Thomas Jefferson. It was really remarkable.”

Besides the historical research, Raphael’s preparation differed from other cases by the number of moot courts he underwent. “I did three,” he says. “The first one was with attorneys from my law firm. I did a second one at the Office of the Attorney General in Richmond. That was quite useful, because lawyers who come from a public service background have a very different perspective than lawyers who have worked in private practice. The final moot court I did was at the National Association of Attorneys General. That’s an excellent program.”

Raphael had been handling the case for five years and was familiar with every aspect. Still, his nerves were on edge. “I knew the case extremely well, and that gave me a lot of confidence,” he says. “But I spent a sleepless night or two worrying about my limiting principles: How far could my argument be pressed against me? Did I have the right answers to the hard questions?”

About a week beforehand, Raphael finally felt “at peace” with those hard questions. He was calm enough to take in and enjoy his surroundings when he went to argue. “It’s just a magnificent building,” he says. “It’s a very tall and wide courtroom but it’s also relatively cozy. When you’re standing at the lectern you are very close to the justices—a matter of 8 or 10 feet. The justices face you in a little bit of a semicircle, so when you’re looking down at one end you cannot see the justices at the other end. And the amplification system is such that when a justice is speaking, it’s hard to hear where the voice is coming from. You have to look to see who is speaking, unless, of course, you recognize the voice. That took a little getting used to.”

Raphael’s friends and family sat in the gallery, and a law professor brought her students to observe the proceedings. “One of these law students said in the presence of one of my other clients, ‘He’s a rock star,’” he remembers. “At no other time in my life would anybody say that about me. That was just very funny. For someone who’s nerdy, it’s amusing to hear something like that.”

William H. Hurd: Troutman Sanders

As solicitor general of Virginia, William Hurd knew his chance of being involved in a Supreme Court case was better than most. “I probably attended a dozen oral arguments to become familiar with the Court—the way the oral arguments are conducted and the kinds of questions the justices ask—so I would be ready if and when I ever had the opportunity,” he says.

Hurd wound up arguing three cases before the Court: two as Virginia’s solicitor general and one as an attorney at Troutman Sanders. In December 2002 he argued for Virginia’s right to make cross burning illegal if done with the intent to intimidate; four months later, in April 2003, he argued for the right of a public housing authority to ban trespassers from a housing project. More recently, Hurd represented two parents in a case that questioned who has the burden of proof when parents and the school board disagree about educational programs for students with disabilities. For his troubles, Hurd ended up with “two nice victories.”

The Supreme Court, he says, is what lawyers call a hot bench. “The justices engage in a great deal of questioning—asking questions not just to find out what the lawyer’s position is, but also perhaps to signal to the other justices their own views of what ought to be the outcome of the case. The expectation is that somewhere about 30 or 45 seconds into the argument, someone is going to ask a question. … And my expectations on those lines were certainly met.

“Each of the justices has their own style of questions. Justice Ginsburg, for example, always comes with a masterful knowledge of the record and will often ask questions about the record … Justice Souter often asks some fairly academic hypotheticals.”

Hurd says there were a couple of dramatic moments in the cross-burning case. “Justice Thomas, who rarely asks questions, weighed in, booming voice, asking my colleague from the U.S. Solicitor General’s office whether he was not, in fact, understating the case,” he says. “He went on to describe cross burning as part of a reign of terror in the South and suggested that it was not really speech at all.

“Also, we wanted to emphasize to the Court just how imposing and how fearful a 30-foot high burning cross would be. We did some research and found out that the columns in the Court behind where the justices sit are 30 feet high. So, during the course of the argument I made reference to the height of the cross by comparing it to the columns right behind them, right where they were sitting. A couple of the justices looked up and seemed to appreciate the imposing height that we were talking about.”

Anthony “Tony” F. Troy: Troutman Sanders

In 1976, Anthony Troy represented the Virginia Board of Pharmacy in defending a law that barred pharmacists from advertising the price of prescription drugs. Though the case took place more than 30 years ago, Troy displays the two keepsake quill pens, given to each advocate, prominently on his desk. “You earn your quills,” Troy says.

“I’m very blessed that I was able to argue a case there,” he adds. “This was back in the old days in the sense that you didn’t have a circuit court level. There was a three-judge [federal] district court, and appeals in those days went directly to the Supreme Court of the United States. Today … each attorney general’s office has its own solicitor general, and major firms concentrate on appellate practices, so I think you’re going to have more of a smaller cadre of the bar seeing the experiences that others have had in the past.”

Troy’s normal preparation involves annotating key words in the margins of his brief to guide him during argument, but he did much more for this case. “I wrote out my argument word-for-word,” he says. “I had the entire thing memorized and the entire appendix memorized.”

He never got close to reciting his argument. The justices began bombarding him with questions about halfway into his first sentence.

“One thing that stands out was a question by Justice Powell,” he remembers, “which I was able to answer by giving him the exact page of the appendix that answered his question. You got some respect when they quickly looked at the page of the appendix and saw that you knew what you were talking about.”

Respect or no, the Court ruled against Troy, 8-1, holding that commercial advertising is entitled to First Amendment protection. But he did enjoy some light moments. “Justice Rehnquist asked me whether or not my theory would be also valid along a different line of reasoning,” he says. “And I told him that I thought that line of reasoning was an excellent line of reasoning. He said, ‘Well, thank you very much, Mr. Troy.’ The entire audience got a laugh off of that, as did I.”

Ammon G. Dunton Jr.: Dunton, Simmons & Dunton

Ammon Dunton represented the Virginia Seafood Council and Zapata Haynie Corporation in 1977 in support of new Virginia legislation that restricted fishing in Virginia waters to U.S. citizens. The law was challenged by Seacoast Products, a New Jersey corporation that had been acquired by foreign interests. The Court ruled the law unconstitutional in a 7-2 vote, stating that, according to the Supremacy Clause, if the federal government grants a fishing license, a state cannot deny permission.

“Getting the case heard was the lawyering challenge,” Dunton says, “not the appearance before the Court. That is the pleasure, but the challenge is getting there. We were very pleased, of course, to hear that cert was granted. It was only later in conversation with [Virginia Attorney General] Andy Miller that I learned he didn’t think we had a chance to get it heard because they’d almost never been able to get one heard out of Virginia.”

Before the case was accepted, Dunton and his associates discovered a number of other states with similar laws and asked them to file supporting amicus briefs. “That was not hard,” he says. “But then they said, ‘You’ve done all this research, can you help our attorneys general file their briefs?’ So we did. We provided information to them all. But they did some independent work and came up with some independent ideas, none of which in the end were successful.”

The Supreme Court also invited the solicitor general to file a brief on behalf of the United States. “Acting Solicitor General [Richard Thornburgh] was present and dressed in traditional formal morning clothes,” Dunton says. “He wore the swallowtail coat and the gray vest and the striped pants. In the old days, everyone wore formal clothes before the Supreme Court, but now only the solicitor general wears them. … It’s part of the sight, the custom, the feel of the place.”

 

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