Arguing Earlier than SCOTUS: An Advocate’s Perspective
Kannon Shanmugam (through YouTube)
One query I typically get requested, as a lawyer turned author/editor/speaker, is whether or not I miss training legislation. On the whole, no. But when I may return to lively follow for one expertise, I’d need to argue earlier than the US Supreme Court docket.
What’s it like to look earlier than SCOTUS, and the way has the expertise modified over time? Earlier this week, I attended a chat hosted by the Columbia Federalist Society entitled Arguing Earlier than the Supreme Court docket, that includes one of many nation’s high Supreme Court docket advocates: Kannon Shanmugam, chair of the brand new Supreme Court docket and appellate follow at Paul Weiss. (I additionally wound up providing commentary on Shanmugam’s speak after former Solicitor Common Don Verrilli, who was initially scheduled to function commentator, was unable to attend.)
As common readers of ATL will recall, in January Shanmugam left Williams & Connolly, his skilled dwelling for greater than a decade, to launch an appellate and Supreme Court docket follow for Paul Weiss. What motivated his transfer? If I needed to guess, I’d cite three elements: (1) the possibility to construct an appellate/SCOTUS follow from the bottom up, as he did at Williams & Connolly, however this time throughout the context of a world, full-service legislation agency; (2) the chance to become involved in legislation agency administration, as managing associate of Paul Weiss’s D.C. workplace, which is trying to develop; and (three) large bucks. (Paul Weiss income per associate hit an eye-popping $5 million in 2018, which is round thrice the estimated PPP at Williams & Connolly.)
Shanmugam has argued a whopping 27 instances earlier than the Supreme Court docket — and, like many high SCOTUS practitioners, he acquired his begin arguing earlier than the Court docket when he served within the Solicitor Common’s Workplace. However that wasn’t his first publicity to high-court argument; he beforehand clerked for the late Justice Antonin Scalia.
As Shanmugam defined throughout his speak — which he delivered with out notes, talking in what appeared like full paragraphs — his former boss remodeled oral argument on the Court docket. When you take heed to recordings of SCOTUS arguments from many years in the past, which is kind of enjoyable — and which you are able to do over on the indispensable Oyez, amongst different locations — you’ll discover the distinction between the “B.S.” and “A.S.” durations (my phrases, not Shanmugam’s). Earlier than Scalia, advocates would typically go on for minutes at a time with out interruption from the justices. After Scalia, advocates usually get confronted with questions proper out of the gate, and spend most of their argument time fielding queries from the justices.
Justice Scalia took a Socratic method to oral argument, Shanmugam stated. The justice didn’t spend an enormous period of time poring over the briefs earlier than the argument; as a substitute, he needed the chance to discover the case totally via interchange with the advocates.
The time period that appellate advocates use to consult with judges or justices with tons of questions is a “sizzling bench” — and as Shanmugam famous, the Supreme Court docket bench has solely gotten hotter over time. Just about each justice on the present Court docket changed a justice who was much less lively as a questioner (with the potential exception of Justice Clarence Thomas — however even he broke his silence lately).
This method to oral argument has unfold from the Supreme Court docket to the circuit courts (which could not be stunning, given what number of circuit judges clerked for the Court docket themselves). So advocates have needed to adapt, and now should be ready for rapid-fire questioning earlier than each the excessive court docket and decrease courts.
What does this imply for a way legal professionals put together for argument? Sure, moot courts are vital, and Shanmugam does not less than two earlier than each argument. However the core of his preparation is considering the toughest questions for his facet and easy methods to finest reply them.
Responding to robust questions can also be finished via the briefs, after all. Shanmugam defined the distinction between briefing and oral argument on this approach: “The briefing is about why you need to win, and the argument is about why the justices ought to need to rule in your facet.”
And the way do you get the justices in your facet? Due to the lively and continuously non-linear questioning, it’s exhausting for a lawyer to argue in the identical organized, logical method of the briefs. In consequence, a lot of the talent of being a Supreme Court docket advocate entails turning hostile inquiries to your benefit and utilizing them to pivot to your optimistic factors.
What can we count on from the Court docket’s latest member, Justice Brett Kavanaugh? Shanmugam stated that Justice Kavanaugh appears to have made a clean transition from the D.C. Circuit to SCOTUS (which isn’t at all times the case for justices within the first few months on the Court docket). He appears comfy and well-prepared on the bench, collaborating actively in argument with out being overbearing.
By way of jurisprudence, Shanmugam expects Justice Kavanaugh to finish up fairly near Justice Scalia (though possibly not as near Justice Scalia as Justice Neil M. Gorsuch, who stuffed Scalia’s former seat). Justice Kavanaugh locations nice weight on constitutional and statutory textual content — not stunning, given his beforehand expressed views on interpretation — however he could be slightly extra pragmatic and versatile than Justice Scalia in his method. For instance, a few of Justice Kavanaugh’s questions have delved into the historical past of a statute’s growth, which was not typically seen from Justice Scalia, essentially the most well-known critic of the usage of legislative historical past. (Shanmugam did provide the caveat, although, that one shouldn’t learn an excessive amount of into oral argument; simply because a justice asks a couple of sure topic at argument doesn’t imply she is going to contemplate it when deciding the case or writing the opinion.)
After all, a full evaluation of Justice Kavanaugh must wait till he’s determined extra instances, particularly hot-button or high-profile ones. The present Time period, in Shanmugam’s view, isn’t precisely overflowing with big-ticket instances. Some have puzzled whether or not this could be intentional, the results of the Court docket deciding to duck lots of controversial points within the wake of the heated affirmation course of for Justice Kavanaugh. However Shanmugam didn’t put a lot inventory in that idea, noting that some Phrases are simply extra thrilling than others. (I share this view; it appears to me that the Phrases appear to alternate, with an thrilling Time period adopted by a sleepy one.)
So not all Supreme Court docket Phrases are created equal, and never all instances are both. However if in case you have the privilege of arguing earlier than the Court docket in any case, regardless of how boring, treasure it. Solely a tiny, tiny fraction of American legal professionals get to argue earlier than the Supreme Court docket even as soon as — to say nothing of 27 instances.
Disclosure: I spoke to the Columbia Federalist Society again in February, for which I obtained Fed Soc’s normal honorarium.
David Lat is editor at massive and founding editor of Above the Legislation, in addition to the creator of Supreme Ambitions: A Novel. He beforehand labored as a federal prosecutor in Newark, New Jersey; a litigation affiliate at Wachtell, Lipton, Rosen & Katz; and a legislation clerk to Decide Diarmuid F. O’Scannlain of the U.S. Court docket of Appeals for the Ninth Circuit. You’ll be able to join with David on Twitter (@DavidLat), LinkedIn, and Fb, and you’ll attain him by electronic mail at firstname.lastname@example.org.