Interview: Irv Gornstein

by Elise Spenner

Professor Gornstein is the Executive Director of the Supreme Court Institute and a Professor from Practice at Georgetown Law Center. He previously worked at O’Melveny & Myers in the firm’s appellate practice, specializing in Supreme Court litigation. He was also a Lecturer at the Harvard Law School Appellate Advocacy Clinic. Before that, Professor Gornstein worked in the Department of Justice, first in the Appellate Section of the Civil Rights Division and then at the Solicitor General’s Office. Professor Gornstein has argued 38 cases in the Supreme Court and more than 30 cases in the courts of appeals.

What were you interested in as a high school student?

To the extent that I thought about anything at all, it was being a high school teacher. The people I admired most when I was in high school were a couple of my high school teachers; they made a big impression on me.

I’ve heard you say that your history teacher George Glass taught you to think and Bill Hydie, your English teacher, taught you to write. What made them special?

They have everything that a great teacher should have. They were masters of their subjects, respectively. They had great enthusiasm for their subjects, and they cared about their students, And I think that that’s pretty much the formula for a great teacher.

Does a lawyer need skills other than writing, or thinking, or is that everything?

I think that covers most of it. I think as a lawyer, it helps to have other intangibles. Social skills, which you can develop, are very helpful. I also think the idea that you’re part of a team, and not just a solo act, is helpful in many areas of the law. The core boils down to writing and thinking, but there are definitely other skills that you need to be successful.

Who or what made you want to be a lawyer?

I, like many people who were going to college around that time, didn’t really have a good sense of what you could do if you’re pretty smart and you have no talent except being pretty smart. Teaching was always something I thought about, but the teaching market was both very very tight at the time, and it was very low paying at the time — it hasn’t improved very much. Particularly, when I was having conversations with my wife who I married in the summer of junior year, she was very enthusiastic about the idea of me going to law school. And I didn’t have another career path in mind. So by default, I applied to law schools.

What legal advocates and writers have you looked up to or do you admire?

My mentor, Walter Dellinger, is probably the most important person to me. But there are others. Don Verilli, I admire more than any other lawyer who’s working full time today. Don and I got to know each other pretty well when he became Solicitor General. In terms of people who I admire as advocates, the all-time Hall of Fame for me is probably John Roberts and Maureen Mahoney. There’s a lot of today’s advocates I look forward to listening to, among them: Jeff Fisher, Lisa Blatt, Jeff Wall, Paul Clement. Michael Dreeben is not doing much arguing now, but he was always one of my favorite people to listen to, and he was also somebody who I learned a lot from because he was my supervisor when I was in the Solicitor General’s office.

I want to backtrack a bit. What things did Walter Dellinger teach you as a mentor?

Two things. One is not to be wedded to a particular way of looking at things, because it’s the “progressive” position, or the institutional position, or whatever framework you’re coming from. To try to form independent judgment, and not be blocked out by the fear that somebody is going to say, “You’re a progressive, you shouldn’t think that way.” So I think that’s one thing: independent thinking and not being locked into patterns of thinking. And second of all, just judgment. I watched how he used judgment. My first Solicitor General was Drew Days, a man who I admired very much, and Drew very much believed in the independence of the office, which I did too, although probably not to the same extent as Drew. And because Drew tried to keep things so independent, he actually ended up with less authority than Walter, who took a completely opposite approach to it, which was to tell the political people, like the attorney general, and in some cases the president: “Here’s what the problem is, here’s what I am recommending that we do,” on the most important, sensitive issues, and nine times out of 10, he would be more likely to get his way than if he had tried to tell the attorney general or the president, “This is my call, backoff.” So I think that strategic judgment is something I learned a lot about from him.

You talked about Lisa Blatt, John Roberts, Jeff Fisher, Paul Clement, being advocates you admire. Is there one thing that runs through all of them that you admire?

People can be great advocates in very different ways. There’s no one way to be a great advocate. Maybe there’s only three or four ways, but there’s definitely not just one way. And so if you want to be a great advocate, you have to start out with who you are and try to model the behavior of the people who are closest to that. I could never argue like Paul Clement or Lisa Blatt. They have really debater backgrounds, they score points with great rhetoric, and that’s just not me. On the other hand, somebody like Michael Dreeben argues at an academic level that I can’t duplicate either — a rise above the fray. I’ve got to be part of the fight. In between that, I felt like John Roberts was a model for me. He’s very engaged, he’s very forceful, but he’s very even keeled and didn’t really go for flashes of rhetoric like he does now as a Chief Justice. As an advocate, he played it a lot straighter and there’s great advocates who do that, including Jeff Fisher, for example. My friend Judge Srinivasan was a great advocate along those same lines.

How did you evolve or get better as a lawyer from that first case to the 36th in the solicitors general office?

I was getting edited. And so if you have good editors, you’re definitely going to get better. And the more you do, the better you get. It just is a fact that the first time you do a brief is way harder than the 10th time, which is harder than the 30th time. Your brain just starts to absorb the way to write briefs the more you do it. So just through experience and practice. And then the other way you get better is by the people that surround you. And I always had three people at any one time who I would consult on legal issues, and they had different perspectives, and they could challenge my way of thinking about a problem and make me more amenable to thinking about problems in different ways. The wider exposure you have to people who think about problems in different ways, the better you can get. 

And the more critical you can be of your own work, the better you can get. If you’re somebody who’s just going to say, “I’m done with this,” and let somebody else take it from here, that’s going to limit how much better you can get. But if you’re somebody who’s going to look critically at every single sentence you wrote from the point of view of a reader who doesn’t know that much about the law, and ask yourself, “Are they going to understand that sentence? Is that sentence too long? Can it be phrased in a different way? Do I really need this paragraph? Is it doing any work, or can I get rid of it?” My philosophy was always the less you write, the easier it is to persuade people. For example, I hated footnotes. My drafts would always start with footnotes in them, and I always had an “up or out” policy on footnotes. Figure out some place to put it in the brief or get rid of it because it must not be that important. 

Seth Waxman always explained his arguments to his children to see if they would understand it. Is there anyone that you would test your arguments on? Or read your briefs to?

One thing I would always do is read my briefs out loud, at some point. There’s a real difference between reading briefs, just with your eyes. If you’ve read it a lot of times, you wade from one place to the next. But if you read it out loud, you can hear it. And so I would try to put myself in the position of somebody who doesn’t know that much about the law. Now, there are certain limitations: you have to talk about legal concepts because you’re talking to justices who have a familiarity with the legal concepts, and they don’t want to be talked down to.

In terms of oral argument, I did do that. And maybe I would do it just on the bottom line of my argument. My son probably doesn’t even remember it. But I would always ask him, “Is it fair that…” and then I would describe the position we were taking. “Is it fair that X, Y or Z?” And he would say, “No, it’s not fair,” and I would say, “Why isn’t it fair?”. And sometimes, if I added in another predicate, he would say, “Oh yeah, well that makes it seem more fair.” The things that you would leave out, potentially, were when he’d say, “No, that doesn’t make it more fair at all.” You don’t want to be ruled by that, but the Justices are human beings, and the sense of fairness and unfairness plays some role in their thinking. 

When other people were editing you, what did they point out in your writing?

Michael Dreeben was definitely of a less is more school. If he didn’t think we needed to say something, that was two paragraphs gone. Ed Kneedler, who also edited my briefs quite a lot, was an adder more than a deleter. Ed likes to be very precise. I don’t want to say I’m on the other side of the scale, but the more precise you are, the less clear things can be. The more simple you can be, the easier it is to understand, but simplicity sometimes comes at the expense of precision. And so, where to strike that balance is a really important thing. And Ed is definitely on the “Let’s be as precise as we possibly can” side and probably moved me more in that direction than I was otherwise inclined to be. 

At the beginning, I didn’t really have a great sense of how to structure things, and so when I got to the SG’s office, I had done a lot of brief writing, but not Supreme Court writing, which is a whole different thing, and I think Michael Dreeben is great at structure. He’s also a great writer of summaries of arguments. In fact, I used to leave the summary of arguments blank when I handed in my briefs to him, in the hopes that he would fill it in, which he often did. Sometimes he would say, “Do your own summary.” When I summarize my own brief, I basically just repeat back to you what you’re going to hear, but when someone’s read your brief and wants to give you the takeaway, but has a slightly different way of saying and organizing the thoughts, it can be refreshing. And he was brilliant at that. I wouldn’t say I’ve learned how to do it the way he did it, but I can appreciate it. 

Georgetown’s Supreme Court Institute hears one side of almost every case that comes before the court. How many do you attend each year?

It varies from year to year, but last year, I was trying to be a judge on four per sitting and listen in on another four per setting. So eight a sitting. You count the sittings and you can figure out how many that is. A lot.

What do you think is the main piece of feedback that you give to a lot of the advocates that come to do moot courts?

The advice that you would give to somebody who’s doing their first argument is not what you would tell Paul Clement. I always laugh when, at the end of moot courts, somebody will tell Paul Clement that he needs to not interrupt the Justices. I don’t tell Paul Clement to not interrupt a Justice. But if it’s a first time advocate, that’s one of the main no no’s. If they’re interrupting and they don’t know they’re not supposed to do that, or they’re not aware that they’re doing it, then you would need to tell them. In a similar way, I’m not going to tell Jeff Fisher, “You didn’t really answer any of the questions.” Because he does answer the questions, and when he doesn’t, he knows it. I might say, “I’m not really sure what your answer was to that.” Raise it that way with him, and he’ll just laugh and say, “Yeah, I didn’t have an answer right at that moment, I’m going to have to think more about that.” Whereas that’s the biggest problem for first time advocates: for some reason, they think they don’t have to answer the question.

And for beginning advocates who don’t really have a handle on how you simplify your message for the Supreme Court, they’re all over the place. You want to try to help them boil down their argument into the strongest thing they have to say. Now, for experienced advocates, what I would tend to tell them is, “Of the four things you said, here’s what resonated with me most,” and try to get others to do the same thing. And then try to go over the problem areas. I would do this for anybody at any level: focus on the biggest problem areas and try to come up with the best response for those problem areas.

So the feedback consists, generally speaking, of trying to identify the strongest arguments they have, and trying to figure out the best responses for the soft spots. And for beginner advocates, there’s a lot more of the basic stuff.

In the Supreme Court Institute, everything is supposed to imitate the real court — the carpeting, the distance between the lectern and the bench, the lighting. What do you think a moot court experience fails to capture about real argument before the justices?

Well, you’re never going to be as nervous for a moot court as you are for a Supreme Court argument. You can’t make people as nervous as they’re going to be. On the other hand, some of what happens at a moot court can end up being more intense than what’s going to happen in the Supreme Court. People tend to be a little bit more deeply probing and repetitive and poking at soft spots then will end up happening at the Supreme Court. It’s not replicating the experience that you’re going to have at the Supreme Court, but I feel like it’s probably a good thing to get probed more deeply, so that by the time you get to the Supreme Court, you’re sure you have the right lines to withstand whatever kind of onslaught you’re going to get.

How do you choose the right lineup of moot court judges for each argument?

I have a director who makes the first cut on that, and knows more than I do about the strengths, weaknesses, and backgrounds of many of the people that we use as moot court justices. But over the last couple of years, I’ve tried to make sure we have somebody who can play the role of chief, who’s a very experienced advocate, and then I try to get one or two “anchors” — people who are pretty experienced advocates. And then you’ve got two spots left: one of those I would want to fill with a more junior person who’s really exceptional, and the fifth seat, normally, I would fill with a “newbie,” which would be somebody who’s just come off a Supreme Court clerkship and is now eligible, and so we would want to fill that fifth seat with somebody like that. 

It’s not easy to create ideological diversity because the bar is pretty much ideologically divided, and it’s pretty rare where you get people who are public interest lawyers and they want to help the corporate position or vice versa. Occasionally, you can find people who can wear both of those hats comfortably, but they’re definitely harder to come by. On hot button issues, if you know somebody’s arguing the pro-gun side, you’re not going to get a lot of people on the anti-gun side who want to moot that case. For some cases, it’s not hard at all, particularly for corporate versus corporate. Those cases are easy to get people who could come at it from either perspective. 

We try to do some gender balancing. I don’t want to be too over the top about that, but we’re an academic-oriented institution, and I feel like it’s crucially important to have models for both genders up there. And similarly, to the extent that we can get racial diversity, we attempt to do that. That’s harder because the Supreme Court bar is way more gender diverse than it is racially diverse. The other thing that I have now is a whole cadre of Georgetown law professors who are Supreme Court advocates, and we give them first crack at whatever moots they want to be on. And then beyond that, we try to honor the advocates’ request to some extent. Not fully, because some advocates will say, “I want the top five people in the country to be on my moot court,” and of course, we want to spread those people out on many moot courts and not just have them all used up on one.

Being a moot court judge takes a lot of preparation. Why are these advocates willing to do hours of reading and research for no pay, on some esoteric subject?

That’s a good question. And hopefully, our luck is not going to run out. Because the willingness of people to devote their time and energy for no pay is how we are able to furnish moot courts. So how does that happen? For some people, this is really great work. It may not pay a lot, but being involved in a Supreme Court case where you’re making a contribution to the argument that’s going to be made, you can feel like that’s rewarding and really fun work. And this can be the place where people that are attracted to Supreme Court work devote their pro bono efforts.

There’s also this mentality on the Supreme Court bar of “If I want other people to be on moot courts where I am the advocate, then I want to be willing to be a moot court judge on somebody else’s.” And it wasn’t so much true during the Zoom period last year, but there has also been a social aspect to being part of the Supreme Court bar. They meet in different places, but this is one place where they gather and catch up with other people who they don’t necessarily have that much time to talk to.

How did the moot court experience shift during the pandemic and for the past couple of years?

During the pandemic, when the court went to remote arguments, we went to Zoom moot courts. And we tried to structure our Zoom moot courts to match, to some extent, the experience that they were going to have in the Supreme Court. The Supreme Court was using a three minute timer, so we used a three minute timer per justice. We questioned justice by justice. The second half of the moot, we would go into either untimed justice by justice or the traditional free for all that we’ve always done. The advocate would be remote, in the sense that he or she couldn’t see what was going on, until we did the feedback. The feedback we did every bit the same way as we’ve always done it. The advocate would come online and could be seen for that part of it. We found that the feedback portion of the moot actually worked better when you could see and interact with the advocate. 

What were the advantages of that hybrid combination of free-for-all and justice-by-justice questioning?

In terms of preparing you for what you’re going to get, you need to first get as close to what you’re going to get as possible, so you get a feel for that. How much time you actually have to say what you need to say, in the space that you’ve been given by the adjustments so it works very well for that. In terms of finding weaknesses in a person’s arguments, it’s a very very inefficient way of attempting to do that. Going back to in-person arguments, the justices asked questions for half an hour; at a moot court, we asked questions for an hour. You get more time to probe deeply and expose the weaknesses and strengths of the arguments so that advocates can reshape what they’re going to say in that half hour. And so that they can be as persuasive as possible. And so too here, we found that the free-for-all, untimed methods work better in exposing weakness, and so therefore you need to do that for moot court to be productive. If somebody just waltzes through moot court, it may sound great, but the justices themselves may have a question that exposes a weakness that wasn’t uncovered.

Do you expect the court to return totally to the traditional free for all, or will they keep some elements of the telephonic arguments?

I don’t have any better insight into that than anyone else. But if I were them, I would go back. I thought that telephonic arguments were terrible. I think that lots of advocates like them because they got more time to talk and they got less probing questions. The press hated it because they couldn’t tell who was winning and losing. Neither one of those perspectives seems to me to matter at all. The perspective that matters is what’s the most help for the justices, and it seems to me that going back to the traditional method is going to be the most help for the justices. It gives them the chance to really focus on the problems that are in the case.

If you notice, in a traditional argument, four people are going to ask questions of one side, four people are going to ask questions of the other side. All of that is going to come by way of challenging questions, and to me, that’s how the court benefits. The more challenging questions there are, the more the court benefits. And the fewer challenging questions there are, which is what you get when nine justices are asking, the less. Which is not to say they’re not some countervailing benefits. I really like the idea that sometimes the justice would say, “You didn’t really get a chance to develop your answers to so and so, why don’t you just complete your answer and I’ll just shut up for the next two and a half minutes.” That can be valuable, but justices should be able to do that, and insert themselves in that traditional free-for-all occasionally. I don’t think we need justice-by-justice questioning to accomplish that.

When you serve on the Moot Court bench, what kind of questioner are you, and how do you probe the advocates?

I’m not sure that I’m that much different than anybody else. I go through the briefs a couple of times, and I write down the stuff that’s bothering me. And those are turned into questions. I’ll have a list of seven to 10 questions. I want to make sure that all my questions get asked — they don’t have to get asked by me, somebody else can I ask them. Others do this to varying degrees, but one thing I always try to do is imagine what the answer is going to be to the question before I get to the moot court, and then I think about what the weakness to the answer is, so that I’m going to have a follow up.

But some of that you just have to play by ear. So when somebody answers your question, and you’re still bothered because it’s not fully getting at your concern, you have to figure out a way to frame a follow up question that isn’t repeating your question. And so I try to be very alert to what a person is saying in response to a question to see if that responds to the concern that’s underlying the question. And if it’s not, to try to probe. 

I don’t try to say, “Oh, I wonder what justice so and so would ask.” Generally speaking, I have a sense of what that would be. As I think about what bothers me, I’m thinking about what bothers any justice. I’m hoping to hit all the concerns that they could get from any justice. Other people may come in with a shorter list, they come down with just one or two things that are bothering them, but as a Chief, I try to get a pretty full master list, and then when other people ask them, I can check them off. But I want to make sure that all the things that are bothering me get asked.

What are the additional responsibilities of a chief justice?

I really feel like they should try to make sure that all the important questions get asked, so that if they don’t get asked by somebody else, they get asked by the Chief Justice. I feel like they want to make sure we get the right participation. If you have one person out of five dominating the moot court, that’s not a good moot court. The Chief Justice ought to be alert to that. Some people are very good at knowing how to get in their questions. Others try to get in and are blocked out. And so as the Chief Justice, if you see that happening, you want to direct traffic to make sure that whoever has questions gets their questions asked. And then you want to do that at the end. At the end period, you give everybody a chance to ask whatever they want to ask. When I’m done with the moot, when I’ve had all my questions asked, I still want to make sure that there aren’t questions still out there that people want to ask.

And then the last part of the Chief Justice is guiding the feedback. The traditional feedback method is just to go down the line. And that’s fine. I tend more to try to put one issue or concern on the table at a time, so the advocates hear everything there is to hear about that one thing at the same time. Because then you can get varying perspectives on particular issues.

And, more than most people, I try to get people to help the advocate in the two ways that are most helpful: did this argument resonate for you or not? I may just intercede with something I heard, and say “Here’s something from the argument. Did this work for you or not?” That’s a very valuable thing, and if that isn’t being done as a chief justice, I think you need to step in. 

And then the second thing is to re-frame. People are very good at identifying concerns — ”I’m really bothered, I’m really worried, it doesn’t seem like you have a good answer.” When people say that, I will say, “What do you think the best answer is? There’s no perfect answer. But, that question is going to come up, and the advocate is going to need to answer. So what do you think is the best thing that the advocate has to say in response to that question?” So, I try to push people out of their comfort zone. Many people are in their comfort zone when they’re identifying problems. They’re not in their comfort zones in trying to solve the problems.

How has serving as a moot court judge really complimented your own advocacy, and how do you approach that?

When I took on this job, I was pretty much done with my own advocacy. When I became head of the Supreme Court Institute, I had argued 36 cases; I pretty much thought that I wasn’t going to argue anymore, I wasn’t going to look to argue anymore, I wasn’t really anxious to argue anymore. And the reality is the most fun part of advocacy for me has always been helping other people advocate, not seeing my own advocacy. Not that I didn’t enjoy advocating myself, but it was always more fun for me, and more rewarding for me to help others.

When I went back to the SG’s office during the tail end of the Obama administration, I did do two more arguments and, after not arguing for a long time, it was rewarding to go back and argue. And also I think it was helpful for me to have gone through that again, so that I could be a little bit more current and more confident in the advice I was giving to advocates who were coming back through the institute. When you’re away from it for a long time, you do worry that your thinking about it may be a little stale. I’ve always tried to stay up and stay current by listening to arguments and reading the transcripts. I probably do a lot more of that than a lot of other human beings do. Because it’s my job. Other people usually don’t have time for that.

I have kept current, but it was really valuable to go back and argue once again. And also, to be in court all the time. I listen and I read the transcripts, but there’s no substitute for actually being there, for getting a sense of the justices and being confident that you know what the justices are thinking. You can get that from listening; you get that from transcripts, but when you’re there, it’s different. And I was. I went back and I went off to all the arguments. And so by being there every day, I was able to get a more refreshed sense of what they’re up to and what they’re thinking about.

So, I wouldn’t say that the moot court helps my advocacy, I will say that my having done the advocacy once again has helped my moot court judging and given me more confidence that I’m not just relying on things I thought 15 years ago when I was arguing all the time.

I’ve heard that more serious advocates are sometimes more willing to drastically change their arguments in that week between the Georgetown moot court and the actual Supreme Court arguments. Why do you think that is?

Well, they have a lot more confidence, and the confidence is built on their experience. If you’ve never done that before, I wouldn’t recommend it. I don’t usually recommend radical changes and arguments to people who aren’t… I don’t really recommend them to anybody, unless you are really desperate. I’m a real believer in trying to have as much continuity with your briefing as possible. Now, your emphasis can change, you can come up with a new way of articulating a point that makes it a lot more powerful than anything you’ve said in your brief. And sometimes, you do have to change your line from the line that is in your brief, just because it didn’t hold up in a moot court, and so you’ve got to change your line and give away stuff that you weren’t giving away in your brief, or not give away stuff that you were giving away in your brief. But radical changes are born of desperation, and I don’t think it’s done very often. But if it is going to be done, probably better to be done by an experienced advocate than somebody who isn’t experienced. 

One of the things that I try to convey to less experienced Supreme Court advocates is: don’t follow somebody’s advice unless you have internalized it and believe it. When you get advice in moot courts, first of all, you’re going to get one person who says “X” and one person who says “opposite X.” So who do you go with in that situation? And if everybody is saying the same thing, you ought to pay very close attention to that, and try to get yourself to internalize and believe that. Because when everybody on the panel is saying something, the odds that what you’re saying is going to be better are pretty low.

But at the end of the day, if you don’t believe it, and don’t internalize it, at the first sign of trouble in an argument, you’re going to revert to what you think. One of the old expressions around the SG’s office — sometimes wrongly attributed to me — is that oral argument is truth serum. And when you’re put under pressure, you say what you think. Chief Justice Rehnquist, at least to me, was famous for always asking, “Are you really saying X?” And X would be exactly what the person’s argument was. “Are you really saying x?” And if it was something that they didn’t believe in, they would toss the argument in the second. “No, I’m not saying that, I’m saying something else which isn’t going to upset you quite as much.”

At Georgetown, I heard that you would listen to recordings of your arguments and tell students what you did right and wrong. What do you tend to point out?

I try to be as honest and candid as I can be. I try to tell people what was going on in my mind in response to the question. I always had some reason for what I did, when I made a mess of things, or when I could have answered it a lot better. Sometimes the cause of that is you’re worried about giving ground. And so therefore, you end up saying something that is not necessary for you to say, and it just becomes very provocative. Whereas you could have smoothed the way out by just figuring out some way to give that ground. So some of the problems are just that: when to just not bother quibbling about things that don’t matter at all in the case. Sometimes I had a tendency to dig in if somebody was wanting me to say something I didn’t agree with. And then you get into an argument that is not really germane to the case and you waste time.

Sometimes it’s just that somebody was coming at the problem in a way that I hadn’t thought about. That doesn’t happen that often, but it happened every once in a while. And so my answer was more synced to the way I was expecting the question to come, and less synced to the way the question was actually being asked. And that can be a problem. In part, it’s a preparation problem; in part it’s an adaptability problem. The inability to adapt to a different way of thinking about things. I was way better at advocacy that didn’t require spontaneity then advocacy that required spontaneity, I could be spontaneous, but within the limits of something I already was going to say. But if it was just something that came up that was new and different, then, like anybody else, I was probably my weakest. 

Did that tendency to avoid spontaneity make you extra adamant about preparation?

Yeah, that’s what I’m good at. I like preparing. I didn’t memorize, but I got what I would say is past the point of memorization, where if I got a question, I could answer it 25 different ways, but they’d all be exactly the same. As long as the substance was there, I didn’t really care exactly how I said it. But the substance needed to stay the same every time. Every once in a while, if it was a key phrase, I would need to make sure that the key phrase was coming out every time. There could be four or five words that were critical, and you needed to make sure that you got out. I would definitely memorize those four or five words. But other than that, I’m a big believer in the idea that there are somewhere between 5 to 10 questions in every case. And by the endpoint, your preparation should just be around those five to 10 questions.

You’ve talked a lot about mentoring younger advocates wherever you go. What do you think is the most common piece of advice that you give?

Like I said, preparation for me is the number one thing that I feel is the most important. Answering questions is hugely important. 75% of your preparation should be figuring out what the questions are going to be, and figuring out your answer is going to be. 25% ought to be figuring out what the three best things you have to say are. And then the other thing is, you have to figure out where your line is. Because when you get questions and hypotheticals, even if you haven’t heard them before, you should know what your answer is because you have worked out your line. You know this is on that side of the line, so my answer has to be no. And you know why, because you know why your line is where it is. And you know why your answer has to be yes, because it’s on the side of your line that is a “yes” answer.

Wednesday, July 28, 2021

Court Packing and Other Reforms

By: Audrey Jung

Background

Court expansion, or “packing the court,” made headlines during the 2020 election season following the death of liberal Justice Ruth Bader Ginsburg and the nomination of conservative Justice Amy Coney Barrett. In April 2021, President Biden established a commission to explore possible Supreme Court reforms, most notably the expansion of the Supreme Court.

While it wasn’t until recently that court-packing became a hot-button issue, the idea has been percolating in left-wing circles since 2016, when Republican senators blocked the confirmation of Obama-nominee Merrick Garland and later confirmed Trump-nominee Neil Gorsuch to the seat. In 2018 and 2020, Congress also confirmed Justices Brett Kavanaugh and Amy Coney Barrett, pushing the Court to the right with a 6-3 Republican-appointed majority. 

This isn’t the first time court-packing has been on the table, nor, if it’s successful, would it be the first time that Congress has changed the size of the Supreme Court. The Constitution sets no limits on the size of the Court, and court size fluctuated during the early 19th century. This fluctuation ended in 1869, when Congress passed a law that set the size of the Court at nine— a measure that met minimal opposition until 1937, when President Franklin Delano Roosevelt launched a failed plan to create a 13-Justice Supreme Court. Now, lawmakers plan to introduce legislation that, like Roosevelt’s plan, would add four justices to the Court.

The Arguments 

Those in favor of Court expansion argue that the Court is overly politicized and that adding justices will “unpack the court” by safeguarding against overly partisan decisions. Others point to the confirmations of Justices Gorsuch, Kavanaugh, and Barrett as unrepresentative of the will of the people because they were nominated by a president who lost the majority vote and confirmed by a Senate that did not represent the majority of the population. Plus, there are no Constitutional barriers to packing the Court. Provided that Congress has enough votes, it can change the size of the Court whenever it pleases. 

Those against court-packing contend that it sets a precedent for parties in power to alter the size and judicial ideology of courts. If today’s Congress creates a 13-Justice Supreme Court, tomorrow’s might bring the number to 15 and the next, to 19. Continual shifts in Court size would undermine judicial legitimacy and independence. Rather than upholding the Constitution, justices might rule in obedience to the lawmakers who put them in place, thus eroding the separation of powers.

What do the polls say? A Rasmussen poll following the nomination of Amy Coney Barrett found that just under a third of Americans (32%) favored increasing the size of the Court, while 53% opposed the idea and 14% were undecided. Recent polls this April show that the numbers have remained relatively steady, with 33% in favor and 55% opposed. 

Alternative Proposals

Although court-packing has gained traction in Congress, it’s unlikely that Senate Democrats have enough votes to break the filibuster, a tactic used by minority parties to delay the passage of a bill. Even without the filibuster, opposition from Democrat lawmakers like West Virginia Senator Joe Manchin and California Senator Dianne Feinstein will likely bar a successful vote. 

Given the unlikelihood of court-packing, the spotlight will likely shift to new outlets. Judicial term limits are seeing their time on center stage, with the Supreme Court Term Limits and Regular Appointments Act of 2020 proposing 18-year staggered term limits for Supreme Court Justices. This bill would require presidents to nominate a new Justice every two years, and justices would serve for 18-year terms.

This March, Yale Law School Professor Samuel Moyn and Take Back the Court Director Aaron Belkin submitted a memo advocating a bill that would create 250 lower court judgeships through budget reconciliation. Moyn and Belkin cite data that shows the number of judgeships has plateaued since 1990, while the number of filings has increased by 38%. They contend that adding judgeships will relieve pressure and reduce the workload of current judges.

Another alternative draws its roots from a Delaware statute, which sets two limits on judicial appointments. The first, known as the “bare majority” rule, prevents judges from one political party from occupying more than a simple majority of the seats on the court. The second, or “major party” rule, stipulates that judges must be registered as a Democrat or Republican to serve in certain courts. Put into practice, a Delaware Superior Court might consist of three Democrat and two Republican judges but no independent or third-party judges. The system has its merits, in that Delaware’s courts are known for their bipartisan rulings. However, there could be problems with requiring judges to be registered major party members and excluding independents from a supposedly independent judiciary, which led to legal challenges last year (Carney v. Adams, 2020). 

Meanwhile, a 2018 paper authored by Washington University of St. Louis and Vanderbilt Law professors Daniel Epps and Ganesh Sitaraman and published in the Yale Law Journal offers a novel approach. Epps and Sitaraman advocate a Supreme Court “lottery” in which cases are decided by random panels of nine judges drawn from the federal appeals courts. No panel would include more than five judges nominated by presidents from one political party, and federal statutes would require a minimum 6 – 3 supermajority in order to be overturned. 

Lastly, while some advocate change, others want to keep the Court as is. One example is the Keep Nine Amendment, which was proposed in the US House of Representatives in September 2020. Its message is simple: that the Supreme Court should be composed of nine Justices. If ratified, the Keep Nine Amendment would prevent future presidents and Congresses from changing the size of the Court.

Conclusion

    The recent confirmations of conservative Justices have accelerated calls for Court reform on the left. Though the proposal of “court-packing” dominates the press, other models — like term limits, lower court expansion, and alternative reforms that would restructure without expanding the Court — are also gaining traction. 

There are parallels between today’s calls for reforms and Roosevelt’s in the 1930s. Even if today’s proposed reforms don’t succeed, they, like Roosevelt’s, may have a more subtle impact. Roosevelt’s plan met resounding rejection but sped the Court towards an ideological shift that favored Roosevelt’s liberal policies. Whether the Roberts Court will follow precedent is unknown. 

https://youtu.be/uOHXWGKyjBI

Interview: Seth Waxman

by Anna Salvatore

Below is an interview I conducted with Seth Waxman in October 2019. A distinguished lawyer, he served as the 41st Solicitor General of the United States from 1997 to 2001. Since then, he has practiced law in private practice, where he currently serves as co-chairman of the appellate and Supreme Court litigation practice group at WilmerHale. I was honored by the opportunity to speak with him—and very grateful to Sanford Hausler for making the conversation possible.

What kind of a teenager were you? 

[laughs] What kind of a teenager was I? I would say I was almost embarrassingly typical. I pretty much practiced what my parents preached, but I was rebellious in a number of respects which didn’t drive my family apart. I got in some trouble, but not enough that it got me kicked out of school or anything. I found some things that really interested me; I found some things that I felt passionate about. But otherwise, I spent a great deal of time looking forward to going to college somewhere. 

And what really interested you when you were my age? 

I was very, very excited at a slightly younger age when John F. Kennedy ran for president. My parents were not politically active, but I think by nature were Democrats and progressives. I was really energized when John F. Kennedy came to Hartford to campaign. It never led me to get involved in politics in any way, but I listened to what he was talking about and was very, very moved by the civil rights struggle. I was younger than you when John F. Kennedy was assassinated, but I was your age when his brother and Dr. King were assassinated. I participated in civil rights marches and some intra-city racial understanding programs. 

I was moved by the occurrence of the Six-Day War in Israel in 1967 and the outcome of it, and it led me to develop an admiration for the young country of Israel and to save enough money to volunteer on a kibbutz in the summer in which I was sixteen years old. And I was outraged by the war in Vietnam and the lack of respect in which anybody in Washington seemed to take account of the views of young people in the country. 

I should also say that I was always very interested in music, and from the time that I was in the seventh grade I played in a rock band and had long hair and stayed out late at night playing gigs around central Connecticut. That also was a big part of my growing up. In fact, when I was applying to college, I was also applying to music conservatories and was seriously thinking about pursuing a career in instrumental music. 

I read that you helped your classmates win the rights to wear jeans at school. Can you tell me more about how that happened?

That’s interesting; I’ve never seen that written. What happened was this. I can’t remember how it is that I came to convince myself that it was okay to wear a nice set of blue jeans to school. Maybe it was a Friday; maybe it was school spirit day. I knew it was against the rules, but it seemed like it was an outdated rule that ought not to be enforced. In fact it was enforced against me, and I was required to sit in the anteroom of the principal’s office for the entire day while all of my friends and many other people came in to look and see if this had really happened. I didn’t get suspended; I promised that I would follow the rules in the future. I don’t think they changed the rule as a result of my one-day detention in the principal’s office, although obviously the rule has long since changed. 

How did you decide that you wanted to become a lawyer? 

I think that I decided that I wanted to become a lawyer sometime during my time in law school, and perhaps rather late in law school. I went to law school for what most people would say were all the wrong reasons. I really loved my college educational experience. I largely put myself through college by doing a whole myriad of jobs, many of which were working as a research assistant for different professors. I had a lot of encouragement by them to go on and try to get a PhD and enter the world of scholarship, but somehow it didn’t seem action-oriented enough for me. And I had no interest whatsoever in either going to medical school or taking pre-med courses, and I wasn’t at all interested in a career in business. 

The first thing I did to avoid the issue was I applied for and was awarded a postgraduate fellowship to spend a year in a foreign culture, which gave me a year’s reprieve from having to decide my next step. But I did decide that I wanted to go to law school. Because I was interested in government and sociology and social psychology, it seemed like this was an applied way to study the same kinds of things. I went to law school because I knew I wanted some form of graduate training, and I thought it would be fun from a sociological standpoint to try and study the law. It wasn’t until late in my law school career that I decided what I should do was figure out what lawyers actually do – not just read about the fact that they read cases and went to trial and argued appeals and drafted documents, but actually get a sense of what that means. I got a job as a law clerk to a really phenomenal, sort of legendary federal district judge where I could see how the process of litigation worked. And then I went to work for a relatively small litigation firm that I thought would give me the opportunity to learn forensic legal skills, but in an environment where I’d have lots of mentors and time to think about how best to craft arguments. I started doing it, and I really liked it. I guess that’s when I became convinced that I should be a lawyer, and I already was a lawyer. I liked many aspects of what lawyering brings to the people who are committed to it. 

To step back a bit, I’m curious about your clerkship for Judge Gesell. How did he help you think differently about the law, and how did he influence your writing style as a young lawyer? 

Gerhard Gesell was a huge influence in my life, not just in thinking about the law but in looking at life and trying to make sense of the legal process in a milieu, Washington D.C., that’s very political. How did he do it? He was a prodigiously hard worker who, although he was entitled to have three law clerks, had by choice only one law clerk every year. He would walk to the courthouse from his house in Georgetown almost every morning, which was a couple miles, and be at work by 7:00 in the morning, which was a pretty intimidating thing for someone who had gone through college and law school never really getting up before 9:00 in the morning. To have to be at work for somebody who got there at 7:00 – he never insisted that his clerks did so, but it seemed like since I was the only law clerk, I should try to do that. More to the point, he would leave in the late afternoon every day with a briefcase full of papers. When he came in in the morning, he had already written opinions and issued rulings in a whole bunch of cases. It was challenging to figure out what the law clerk was supposed to do, since he seemed to be fully capable of doing his own research, writing, sitting on the bench, and deciding cases.

In part, what I learned from him was the satisfaction of hard work, and also the importance of thinking very, very clearly about what the issues are. What precedent suggested the answer to the issues were. But also what the practicalities were – Who were the parties before the court? What were the circumstances? – in a way that might inform what a just resolution of the legal issue would be. He led by example. I have to say that it’s been decades now since his passing, but I still find myself thinking on a pretty regular basis, “I wonder what Judge Gesell would do in this situation.” I don’t always try to model my own decisions on what I think he would do, because I don’t always agree with the way he would have approached something. But the fact that I decades later keep thinking that reaffirms what a strong influence he had on my life and my legal career. 

To revisit the second part of my question, were there any aspects of his writing that were particularly distinctive or that you incorporated into your own writing? 

He was a very spare writer who wrote in a plain-spoken way. He didn’t have a lot of patience for long, flowery discussions that are heavily footnoted. He wanted to write his opinions in a way that ordinary people could read and understand who the parties were, what the dispute was, what was at stake, how he ruled, and why he ruled that way. That kind of spare, very, very clear form of written exposition is what allowed him to go home at night with a briefcase full of papers and come back with an opinion he’d already drafted — unlike many judges and law clerks where the judge and the law clerk work on the case, the judge decides how the case will be decided, and then assigns the law clerk the responsibility to draft the opinion and then edits that opinion. That was the exception rather than the rule with Gerhard Gesell. He would talk about things, and we would argue back and forth about what the law did or didn’t mean, and he would assign me plenty of work to review the law and send him what I thought were the most salient authorities. And he would always give me his draft opinions to look at to see whether I thought they could be improved in some way. It was not like, “You write these opinions, I’ll write those opinions, and then we’ll switch and edit each other’s.” It was very much a process of me helping him write his own opinions. I guess I learned a lot about the value of writing clearly and briefly. Sometimes, I would say often, I fall short of this ideal. It’s something I aspire to, but it’s not a craft that I’ve perfected. 

From beginning to end, what does your brief-writing process look like? 

It’s changed a lot as I’ve gotten older and have developed more of a predominantly appellate practice. Originally, and for many years, what it consisted of was researching the facts, researching the law, creating an outline, and then doing a draft, which would be reviewed by more senior lawyers. I would say really when I got to the Solicitor General’s office in the Justice Department and became Solicitor General, it became perfectly obvious that it was not either the role of the Solicitor General to draft briefs or something that an SG could do, because there were close to ten different cases that needed to be decided every day by the SG. I was in a role of doing second-order editing, that is strategizing about what the flow of the arguments should be and of course deciding what the position should be. It was a clean break from actually drafting. That’s by and large been the case since I came back into private practice, where I’m involved in way too many cases at any one time, and my hourly billing rate is way too high for it to make sense for me to do the initial drafting of briefs. My role, and what I do for a good part of every day, is to strategize with lawyers that I’m working with on particular cases about the flow of arguments and the structure of the arguments, and then to engage in a process of editing someone else’s draft and editing subsequent versions of that. The only real drafting that I do on my own anymore, and I really love it – it seems like a holiday – is drafting lectures and articles and speeches and occasionally editorials, where I don’t have anyone to help me. I get to just close my door and type away. 

I think you’re the only person to ever say that writing a lecture is a holiday, but it makes sense in context. 

[laughs] The whole time that I was Solicitor General, I absolutely loved the job. There is not a better job in the world for someone who is interested in the law and thinking about the law and acting in the law. But I did often have this regret that the line lawyers in the Solicitor General’s office, who are referred to as Assistants to the Solicitor General, have the best job. When I got done being Solicitor General, I almost wanted to apply for a job as an assistant to the Solicitor General so that I could actually write the drafts. I mean, obviously that’s a silly idea, but that’s why I like the occasions on which I get the chance to sit down and write something from scratch. 

I understand. From what I’ve learned about you, it seems like you love the process of jumping into a case and learning about a topic you haven’t had much experience with. Agriculture patents, soybean patents, silos — that kind of thing. 

The process of being able to spend all of your professional time either learning or teaching, which is essentially what I do — learning new subject areas and bodies of law in an effort to turn it into a persuasive piece of advocacy that will hopefully teach courts and juries what I know and why I think our position is right — is a thrill. It’s the thing that has, over the course of my career, convinced me that I’m doing the right thing for me. It’s certainly been a significant factor in what’s kept me quite satisfied in a career in the law. 

When you know almost nothing about a subject, where do you start?

I’ll give you one example, which is such an unusual example that it will well illustrate the point. 

Shortly before I became Solicitor General, Congress passed a wholesale revision of the Telecommunications Act, which was a 1934 act that created the Federal Communications Commission and said how radio waves and telephone frequencies would be governed. Then in 1996 they passed the Telecom Act of 1996, which was a huge omnibus law. Like all omnibus laws, it had tremendous economic impacts. It was immediately challenged on multiple grounds, and there was a series of challenges to the FCC’s authority and the way that the Telecommunications Act authorized the FCC to do certain things that made their way through the lower courts to the Supreme Court. These were hugely important cases, and it was clearly something that the Solicitor General personally should be arguing — defending what Congress had decided and why it was constitutional. 

I had no background in telecommunications, other than using the telephone and watching television. So I called up the general counsel of the Federal Communications Commission, and I asked if I could have essentially an all-day session with the FCC’s chief engineer. This gentleman came into my office and sat with me in the Solicitor General’s conference room. He was all ready to explain to me what the legislation did and what was correct from a technical point of view. I said, “Look, I don’t want to scare you – and believe me, we’re going to go a lot deeper than this – but I would like to start by having you explain to me something I don’t understand. When my phone rings, and I pick it up and someone says hello and starts talking, I can figure out who that person is. And they know who I am. What is it that happens in that telephone that allows us to do that?” This gentleman turned pale. He may have thought that he volunteered for an exercise that was going to take a month, or he was dealing with an idiot who would never convince the Supreme Court why the Telecommunications Act was correct. But it is very much the way I go about learning new things. 

When I started being involved in patent litigation, and particularly litigation involving the biological sciences, one of the first cases I was retained to argue was a request by a company that I help the company understand — and frankly help the Patent and Trade Office come to a fixed view– whether artificially sliced segments of genes, which are called express sequence tags, were or weren’t patentable. That is, one way that genetic engineering and genetic research was being done was to split genes into lots of seemingly random fragments and see whether the manipulation of individual fragments could achieve a positive therapeutic or agricultural result. Nobody really knew whether once you did this process, and found a tag that was useful, whether you should claim a patent on that invention or not. My client didn’t really care whether it was patentable or not. They just wanted to make sure that if it was patentable, and they discovered something useful, they would have exclusive use of it for a while. Or by the same token, that they would know if someone else had done so, that they were not free to use the same invention in the same way. We came up with a strategy to present to the U.S. Court of Appeals of the Federal Circuit, which is the court of appeals that handles all patent matters, to present to them a series of applications that we would make for patenting of a method of using a particular express sequence tag. They would have to either grant or deny it, and then if they denied it, we would appeal it, thereby having the Federal Circuit announce what the standards were. That was I think even in hindsight a terrific strategy for helping get clarity for the biochemical industry and for the courts that are adjudicating patent rights. 

But the very first thing I did, once we decided this would be a good strategy — first of all, I spent a couple of days with a young lawyer here who had a PhD in biochemistry, and another one who had a degree in chemical engineering. They explained to me using a whiteboard what genes are, what chromosomes were, what mitochondria do, what messenger RNA was, and I spent the whole day learning this in my own private tutorial. And then I had the company’s chief engineer come in, and at that point I felt like I had a teeny bit of information about what the terminology was and how at least at high-school-level people understood what was happening. Then I spent a day with the engineer having her explain to me, “Well, the way we use these express sequence tags is in the following way. And it won’t work if we don’t do this.” Enough information so that I was confident that in explaining to the court what the issue was and why it was important, not only for them to decide it but to decide for example that certain kinds of inventions using express sequence tags were patentable, I’d be able to explain it in a way that would make sense to them. 

That’s a very long-winded answer, but it’s just great. When you get one of these cases in a totally new area, it’s a privilege to be able to say, “I need to learn about this.” 

One of my favorite things I’ve learned about you is that when your kids were younger, you used to prepare for your Supreme Court arguments by explaining your case to them. Obviously that doesn’t work now that your children are older. Have you found a comparable exercise to explain your case, explain the mental shortcuts you’re making, and practice being clear?

The short answer is: it was a huge blow to my advocacy skills when my youngest child graduated and moved out of the house. It was a huge blow for other reasons too, of course.

I do try to do the same thing with other people, typically adults. I sometimes try to explain it to my wife, to other members of my family, to people I run across who aren’t lawyers, and to people who make the foolish mistake of asking me at a cocktail party, “What interesting cases are you working on?” I’ll then drag them through this very basic explanation for what the case is, what’s at stake, what the law says, and what I am trying to convince the court to rule and why it makes sense. But there’s no doubt that when my youngest child left home, I was deprived of a very potent means that had been available to me of preparing for oral argument. 

Maybe you should start a babysitting business, and then you’ll have a lot of kids available. 

[laughs] I will say that at least one of my children — maybe all of them, actually — are still interested in having that kind of discussion, although they’ve now moved on. They have adult lives and their own families to deal with, and they’re not easily around for the corralling. But I think in addition to having something they could make fun of their father about, I think they liked it. 

I interviewed Tom Goldstein about a year ago, and he said that in most arguments, he tries to find the one issue that he can persuade one justice on. You seem to have a different strategy, one in which you have two or three main framing points to communicate during the argument. How long did it take to realize this strategy worked for you? 

Let’s put it this way. I think that it’s extremely important to be pellucid in your mind, when you’re going in to argue a case, what points bear emphasis — either because the issues in the case didn’t fully crystallize until the final briefs were done, and perhaps they weren’t presented in the briefing in a way that will immediately pop out, or because there’s a case that presents a litany of subsidiary issues, and yet it’s really, really important to identify which ones are the most important. Ever since I started dealing with complex litigation, I’ve understood that. But certainly confirmation of the importance of that really, really hard work — this is not something that you easily intuit in some cases. It’s perfectly fine to say, “You’ve written a brief, and your brief has a summary of your argument. What you ought to do at oral argument is get up and essentially give a summary of your argument and see if anyone has questions.”

In the U.S. Supreme Court in particular, although I will say that I prepare for oral arguments in the Supreme Court the same way I prepare for arguments in other courts, it becomes obvious almost upon your first oral argument that you’re in an environment where you’re not going to have the luxury of warming up to your key points, making the key points, and then luxuriating in a discussion about why you’re right. Argument in the Supreme Court is argument by interruption. I, like most people who argue in the Supreme Court, have had arguments where in thirty minutes you have forty or fifty questions. In that environment, the most important thing is to have thought carefully about what answers you would give to the questions that are likely to come up or even remotely likely to come up, and what the implications of those answers are and what additional questions any such answer may well provoke, because the main purpose of oral argument is to answer judges’ questions. Equally important, I think, is to help the court by making very clear what you as an advocate think the case turns on. I always had the instinct of doing all of those things, but starting somewhat late in my career to argue appellate cases and in particular arguing in the Supreme Court, reinforced in my mind the importance of doing those things. 

How do you feel about the Supreme Court’s decision to give advocates two minutes of uninterrupted speaking time at the beginning of their arguments?

It’s certainly going to be different. It’s not as if there aren’t cases in which the court will sit back and listen for a few minutes, but they tend to be, at least in my experience, the rare cases. Honestly, to me, it’s neither here nor there. I have been able to make the points that I thought that I wanted the Court to understand what I was saying, even in the context of cases — and it’s happened to me a couple times — where I’ve been asked a question before I got to the podium. And so, for me it’s neither here nor there. To some extent, maybe it’s a little less fun and exciting to know you have two minutes and you can practice a little two-minute speech. But I think this is more significant for what it reflects about what the justices think will be helpful to them. I will say that the current Chief Justice has done much more policing of the pace of questioning at oral argument than his predecessor did. I can’t speak to the practices of other chief justices, because with the exception of my very first argument, which was at a time when Warren Burger was the chief justice, I’ve only practiced in the Supreme Court under William Rehnquist and the current chief. 

When John Roberts, who had been a very, very accomplished Supreme Court oral advocate came in, it was clear that he was bringing some of his experiences as a frustrated advocate who couldn’t answer a question without being interrupted by somebody else, to bear. He regularly admonishes his colleagues to let the lawyer finish her or his answer before the next question, and similarly, to not let lawyers do what they sometimes used to be able to do — if you got a question and didn’t really know what the right answer was, you just took a deep breath, and sure enough someone else would ask a question that you could answer. This chief keeps track of whether you’ve answered the question or not. And if you’ve told a justice that you have three points to make, but then you get interrupted after the second, he will remember. I think this two-minute rule, which is surely going to be an experiment, reflects a sense of a majority of the justices that maybe arguments would be a little more meaningful if they didn’t make the lawyers fight to get in their essential points, but let them get the points out and then answer questions. 

If you were a Supreme Court justice, and you were on the bench next week, what kind of oral argument questioner would you be? What role would you want to play in policing the arguments?

Well, I should say that I spend a lot of time being a moot court judge, because I’m doing moot court exercises for lots and lots of colleagues and lawyers at other firms who are preparing to argue cases. I have plenty of exercise as a moot court judge and moot court chief justice. But that’s a very different exercise. The salient difference is that the real justices are asking questions because they have to actually write an opinion about a case, rather than asking questions because they’re trying to put someone through their paces. That said, I like to think that I would conduct myself the way John Roberts is, which is to preside over a process of very vigorous back and forth and questioning, and to respect all of my colleagues’ desires to either ask or not ask questions, but to make sure things don’t devolve into such a confused mess that the advocate isn’t clear which question he or she is supposed to be answering and whether they really have gotten their answer out. 

You’ve worked very hard to balance your work responsibilities with your responsibilities as a human being. Do you have any advice for teenagers who want to do good with the law?

I urge everybody to, in the course of whatever career they have, devote some significant portion of their professional life to civic or pro bono activity: something that will by your own lights work toward making your community, the world, or a particular process fairer. I think that’s our obligation as human beings, really, and it doesn’t in any particular way apply to lawyers. I will say — as I’ve said in dozens of commencement speeches that I’ve given at law schools — that as you look at colleagues that have come out of law school and go into the private practice of law and become somewhat disillusioned that the work is too hard, and not meaningful, I don’t think you can find anyone who feels that way who has made a point from the start to say, “Yes, I’m going to do the job that I’m assigned and represent the people I’m representing, but I’m also going to think to myself what skills and efforts I can bring to make the world a slightly better, fairer place and spend time doing that.” My experience is that lawyers who do that end up being far more satisfied with their legal careers than lawyers who don’t. 

Friday, July 23, 2021

Amicus Briefs: A Data Breakdown

by Elise Spenner

In the October 2020 term, 935 amicus briefs were filed in 56 cases, averaging to almost 17 briefs per case. This total surpasses every term since 2012, when 1003 amicus briefs were filed. Considering that the Court heard very few cases during this pandemic term, the number of amicus briefs is ground-breaking. 96% of cases had at least one amicus brief filed, 62% had at least 10 amicus briefs filed, and 13% had over 30. Just one case had over 80 amicus briefs. 

How does this number compare to other terms?

Between 1946 and 1955, there was an average of less than one brief filed per case; only 23% of argued cases even had amici. Roe v. Wade, the most controversial case in the past 50 years, drew only 23 amicus briefs, and Brown v. Board of Education, maybe the most consequential case of the century, had just 6. Since these cases, amicus briefs have skyrocketed in popularity. In 2015, Obergefell v. Hodges (the same-sex marriage dispute) attracted a record-breaking 149 amicus briefs. 

This year, the statistics around amicus briefs were relatively similar to last term. In the 2019-2020 term, 911 briefs were filed in total. 97% of cases had at least one brief, with an average of about 16 briefs per case. Bostock, the case about LGBT discrimination in the workplace, pulled in over 94 amicus briefs, a tally just slightly above Fulton v. Philadelphia.

What were the blockbusters? 

Fulton, the landmark conflict between religious liberty and LGBTQ+ rights, received 81 amicus briefs: 34 for the petitioner (Catholic Social Services and foster parents) and 46 for the respondent (City of Philadelphia). One brief, by Eugene Volokh of The Volokh Conspiracy blog, remained neutral. Google v. Oracle and Americans for Prosperity v. Bonta had 60 and 52 amicus briefs respectively, a distance second and third to Fulton. AFP was a monumental case about disclosure requirements, with major implications for campaign finance and dark money, while the Google case was a contentious copyright battle about Google’s pirating of a Java platform. 

Were there any surprises?

Only 44 amicus briefs were filed in the ACA case, far less than the 136 briefs filed in its predecessor, NFIB v. Sebelius. Obviously, even before the Court dismissed the case on standing grounds, the weakness of the challenge was clear. 

Brnovich v. DNC, a case that severely hobbled people’s ability to sue for racial discrimination in voting, drew just 37 amicus briefs. Surprisingly, it attracted far fewer amicus briefs (23, to be exact) than the technical copyright dispute between two behemoth corporations in Google v. Oracle. This can be partly attributed to the Wall Street Journal’s finding that both Google and Orale funded third-party amicus filers, often without disclosure. It’s safe to say that the number of amicus briefs in a case is often more correlated to the wealth and power of the parties than the widespread significance of the dispute at hand. 

On a side note, United States v. Arthrex, an administrative law case that asked whether patent judges were constitutionally appointed, drew a surprising 31 amicus briefs. While the case was obscure and didn’t draw headlines, the ruling could have reverberations for future cases about agency oversight and the role of the regulatory state. Also, two cases this term had no amici: Salinas Railroad Retirement Board and Florida v. Georgia. The first, a narrow administrative law dispute regarding judicial review of decisions about worker benefits; the second, a highly technical water-rights dispute between Florida and Georgia.

Whose side were they on?

53% of amicus briefs were filed on behalf of petitioners, and just under 43% sided with the respondents. Interestingly, over 4% of the amicus briefs did not defend either party, preferring to remain neutral and offer objective viewpoints. In Goldman Sachs, Minerva, and TransUnion, for example, the United States (represented by the Office of the Solicitor General) chose not to side with petitioners. 

Winners and losers?

Naturally, the United States Office of the Solicitor General (OSG) had the most amicus briefs filed before the Court (22) with their side prevailing in just over 73% of those cases. The ACLU filed 13 briefs, but won just 6 of them (about 46%). Interestingly, the Americans for Prosperity Foundation, with 11 amicus briefs before the Court, won almost 82% of them. The Pacific Legal Foundation, a conservative nonprofit that defends individual liberties and libertarian ideals, advocated for the prevailing parties in 7 out of their 8 amicus briefs — over 87%.The Rutherford Institute, whose primary focus is the defense of religious liberties, was on the winning side in each of their five amicus briefs. I should point out one anomaly to this trend: the Cato Institute — another individualistic, libertarian think tank — had just a 38% success rate with their amicus briefs, on the losing side in 5 out of the 8 cases it participated in.  

On the other side of the spectrum, Public Citizen, a well-known progressive organization that vocally rebukes corporate interests, was on the losing side in all but two of the briefs it filed, giving it just a 22% success rate. Perhaps most revealing, the District of Columbia filed five amicus briefs and was on the losing side in every single one. 

Either way, this surface analysis clearly proves who the Court listens to and sides with: libertarian non-profits and conservative organizations that advocate on behalf of unhindered individual freedoms. Examining the briefs behind the decisions of the Court reveals that, even outside the hyper-partisan shadow docket, the justices consistently listen to those with similar political ideologies and beliefs. 

*Data from The Juris Lab and The National Law Journal



Nat. Law Journal: Anthony J. Franze and R. Reeves Anderson:

Monday, July 19, 2021

Hello, everyone! This evening at 8pm ET I’ll be moderating a panel for Princeton’s student newspaper, The Daily Princetonian, featuring Kimberly Robinson of Bloomberg Law, Chris Geidner of MSNBC, and David Lat of Original Jurisdiction and Above the Law. I’ll be asking them not only about their careers, but about the coming Supreme Court term as well. We will then devote time to audience Q&A.

Feel free to sign up at this link: https://princeton.zoom.us/meeting/register/tJEqc-iorDkoE9B2cecycVCGX9hnAKTRIsNs

Anyone is welcome!

— Anna Salvatore

UPDATE 7/26— Video of the event is now available here: https://www.youtube.com/watch?v=Gh7nvUvnfKk.

Interview: Sarah Harris

by Elise Spenner

Sarah Harris is a partner at Williams & Connolly in their Supreme Court and Appellate Litigation practice. She argued two administrative law cases in the October 2020 term and prevailed in both: Salinas v. Railroad Retirement Board and Carr v. Saul. Prior to her appellate practice, Sarah clerked for Judge Sandra Lynch on the First Circuit, Judge Laurence Silberman on the D.C. Circuit, and Justice Clarence Thomas on the Supreme Court.

What were you like in high school?

Nerdy. I was a high school debater, which is true of actually a lot of Supreme Court folks. I’m a big reader; I was a big fan of mystery novels. Probably very unsure of what I thought about a lot of things. I think high school was not a time for me to figure out what I actually thought about the law, or politics, or pretty much anything. That came later. But I guess also a classic type A overachiever in some sense. I did a lot of extracurriculars, that sort of stuff. 

I was actually gonna ask you if you did debate, because I know that a lot of litigators do debate. Was that a big part of your high school life?

It was. I did policy debate, and between the travel and debate camp in the summer, and meeting people, I think it is sort of the gateway drug to becoming a lawyer in a lot of ways, because you spend so much time doing law-adjacent things. I remember reading the federalism opinions when I was a high school debater, and it’s really your first exposure to the Supreme Court in a way. You end up discussing it in policy terms, of course, but it teaches you to read Supreme Court opinions, which I thought was really helpful. It teaches you to do a lot of research, which is very similar to what you end up doing as an associate.

Would you have predicted at the time that you would end up as a Supreme Court litigator? Was that something on your radar?

I like to tell people that I do not have a master plan, and you don’t need a master plan, either, from high school, or even in law school, to be a Supreme Court advocate. And in high school, I didn’t even know I wanted to be a lawyer. So I hadn’t decided I wanted to go to law school. Even in law school, I thought I was going to be a national security lawyer or working in government. You figure out as you go on what you find interesting, and also what you’re good at. Having tried out different things at a law firm and also clerked, that helped me figure out that I actually did want to do appellate work. 

In law school, I didn’t do the traditional things that you do if you’re checking boxes because you want a Supreme Court clerkship. I didn’t do Law Review. I didn’t do the mock trial competition. I did the arbitration competition. I was working on my PhD at the time. So not the traditional path to either a Supreme Court clerkship or Supreme Court work, but I think that’s a good thing. I do think if you actually look around the Supreme Court bar, there’s a lot of people with a lot of different life experiences. Many of them did end up clerking on the Supreme Court, but not all of them. It’s not like you have to have known from birth that you wanted to do this.

Where did your interest in national security and international relations come from?

Family stuff. My maternal grandfather was a huge influence in my life and served in World War Two, didn’t really talk about his service at all for a really long time, and then towards the end of his life, when I was in high school, he started attending various reunions and talking about it. And it turned out he had served in the Office of Strategic Services, which was the predecessor to the CIA, and had been involved in liberating parts of France. It sort of reads from the pages of a spy novel in some ways — going into France and getting several thousands of Germans to surrender because they thought there were far more Americans than there actually were. Learning about his service made me really interested in the early history of the CIA and World War II. So when I was in college, I studied abroad at Cambridge, and eventually got a Masters and PhD studying the history of intelligence agencies in the CIA in this era in which my grandfather served in the foreign service. I had a personal connection to it, and so it made me very interested in that era. That’s how I ended up on what seems like a frolic and detour into academia, but really was a hugely important part of me figuring out what I think about a lot of those fundamental policy questions and learning  how to write.

You actually ended up writing a book, right?

Yes.

That was about the CIA and the early Cold War. Did that stem directly from your grandfather’s experiences and your understanding of the CIA at the time?

My grandfather’s service actually didn’t end up having to do with the book itself, but was what got me interested in that area. But the book was based on my PhD dissertation, which is about the CIA’s relationship with writers and poets and composers in the early Cold War at a time when basically anyone who was intellectual was communist in Western Europe, and very anti-American in a lot of ways. And so one of the challenges at the end of the Second World War was: now that the Nazis have been vanquished, how do you stop the role of the Soviet Union into Western Europe? I think people were watching some of the prisoners of war heading back to Russia, knowing that they were going to die or be sent to the gulag on arrival, that really shaped a lot of veterans’ experiences and perceptions of what they should do on the ground. 

Really enjoying some of the authors who were involved in this era — I got to interview Arthur Schlesinger Jr. before he passed away and talk to a lot of other people of that era who spent their 30s trying to overthrow Albania in the CIA. It was the last moment when you could interview these folks, because they were all pretty elderly by the time I met them. And I just really enjoyed reading about the era, both about what the American government was thinking, and also, what were these intellectuals thinking in terms of joining a group that was secretly funded by the CIA? What did they know? What were they trying to get out of it? It’s a neat story because it’s two perspectives kind of colliding in one organization.

Did that combination of journalist, researcher, writer historian prepare you for what you ended up doing as an appellate lawyer?

Really it did. Not in any sort of obvious way, I don’t spend a lot of time reading briefs about the non-communist left. But I do think it taught me to write a fact section and hopefully, in a way that’s engaging. You have to figure out how to tell a story, as opposed to reciting the litany of facts as if it’s really dry: “On Sunday, this happened; on Monday, this happened.” 

So framing the story is hugely helpful to what I actually do now. And some of the other aspects of it, I think, like interviews with all of these towering figures of the 20th century, was very good preparation for meetings or calling clients or trying to persuade people to hire me for my legal skills. Because after you are trying to persuade Arthur Schlesinger Jr. to let you interview him, it does help you get over your fear of talking to someone who is very fancy, and you don’t know particularly well, and trying to persuade them to help you.

Were there any specific lessons you took from your time as a writer and historian or things that you tried to take with you?

In terms of the project, this will sound really cheesy, but it did give me a real appreciation for service, for government service and for the people who made a lot of sacrifices to that service. And their deeply held beliefs in the future of America, realizing it wasn’t always perfect, but that they wanted to side with America and engage in acts of true bravery. It was not popular to do so — that they were risking their lives and their reputations was very touching to me. And I think it’s a good lesson to think about. I think there can be a temptation to play it safe in your career or not do government service. But really understanding that government service is something important to try to help our country was the big takeaway.

What do you think caused you to make a transition to then going to a clerkship in the circuit court, and kind of moving out of that government service, historian into appellate law?

Especially as a lawyer, I think you see your career in a big-picture sense. You don’t always have to be in government, you don’t always have to be in private practice— it’s sort of a balance of things. In a simple way, I love what I do right now. I think it’s really fun. And I also have been lucky enough to have various opportunities for government service. And, hopefully, will have them again. But on a day-to-day sort of personal satisfaction level, I really like my colleagues. I think the colleagues are a big draw. The work is intrinsically fun, but there’s much to be said for the teamwork element of doing a Supreme Court brief and thinking about it with your team and arguing it out. It’s just really fun. 

You started with a clerkship with judge Chandra Lynch, who was actually the first woman to serve on the First Circuit. Why did you choose her and what led to that?

Honestly, I couldn’t have been luckier. When I applied for clerkships, I candidly had no idea what I was doing. I think I already said this, but I wasn’t one of the folks who applied to clerkships with this master plan, seeing it as a stepping stone. I applied on the First Circuit because I was familiar with Boston and Judge Lynch based on reading various things about her and talking to former clerks. And I think I’ve made a lot of my career choices in life based on reactions to the person I would be working for. Picking your boss is one of the most important ways to pick your job. Don’t pick the title, pick the boss. And I feel really lucky to have learned from her. I mean, she is incredibly organized. Honestly, even some of the, “How do you approach a case? How do you make sure you’ve covered all the angles? How do you dive into the record?” I learned from her. 

Was there something that specifically stuck out to you about Judge Lynch, as a person?

She establishes herself as a leader, but in a way where it’s not overt, it’s just in the conversation. I think she has a firm sense of who she is and her objectives. And for me, especially as a young lawyer, that was something I hoped to emulate and hoped to learn from. As you say, I think she was one of the first generation of female lawyers to go up through the ranks of a major law firm before becoming the first female judge on the First Circuit. Being a first in so many senses obviously affects your personality and teaches you to lead, and gives you a different leadership style. Even from the get go, hearing her questions, hearing the way she talked about her job, I thought she was someone I really could learn from.

What was the actual application process like, and how did you go about that?

It’s a wild west; it always has been. The market for clerkships is notoriously difficult for judges to navigate. It’s not like residency matching, where there’s an efficient process among institutions. You’re dealing with individuals on both ends. Back when I applied on the First Circuit, you sent in your applications before your third third year of law school, and then all of the judges would start contacting you at a particular time. You literally could have a situation in which you would race from New York to Boston. And I had interviews in the West Coast lined up that I cancelled, and it was a mad road race in some ways. It’s still like that sometimes. But now, everyone gets stuff done in a two or three day window. 

The DC Circuit was a little bit different, because the rules had always been different if you’d already graduated from law school, which I had at that point. That was much more of a tailored application process. I sent in my applications for the DC Circuit thinking that I wanted another clerkship focused on administrative law and national security, which were two big interests of mine. I felt like the First Circuit was a generalist circuit, which was great, but the DC Circuit is more focused. And so that was the traditional application process there, and judges contacted you after that point. 

But I had a similar sort of feeling for Judge Silberman. I had close friends who had worked for him fairly recently, and so I felt like I had a pretty good sense of what he was like. He’s something of a legend. He was a great mentor in a very complimentary way to Judge Lynch. I think he’s seen it all. When I clerked for him, I think he’d been on the bench for about 25 years, and had truly seen every experience in government before that, including being Deputy Attorney General in the wake of Watergate — so someone who knew how to navigate a lot of situations.

In your clerkship with Judge Silberman, did you choose him because you knew he would be a sort of mentor? Were you considering going anywhere else other than the DC Circuit? Why did you want to do another clerkship?

I was focused on the DC Circuit at the time. I felt like I had gotten a great generalist experience on the First Circuit, doing traditional Civil Procedure cases, and quite a lot of cases about Puerto Rico. But just sort of the full range of criminal cases, civil cases, random federal statutory interpretation cases. We had a 21st amendment case when I was working there, which is not run-of-the-mill, but was kind of fun. And then the DC Circuit is a deep dive into administrative law, which you don’t see in a lot of other circuits, as well as some national security pieces. Especially at the time that I was looking, there were a lot of Guantanamo cases that went to the DC Circuit. So I thought it would be a nice bookend to my clerkship experience. And I think it did work out that way. And for Judge Silberman in particular, I knew that he was very interested in national security issues, so that would hopefully be something to talk about. 

What were the differences between the two circuit clerkships with regard to how you are expected to prepare for the justices or what you did as a clerk in each role?

I think the biggest difference was that Judge Lynch had the full complement of clerks, four clerks for a judge, and Judge Silberman, because he took senior status, had only me. So it was very different roles, in the sense that if you have four clerks, I think you can rely on all four of them to tease each other a little more, to hit the ground running, to review each other’s work, and to review each other’s bench memos. And I think it’s easier to set up a process where all of the clerks are working together to keep track of their work, and nothing falls through the cracks that way. If it’s just you and the judge, as it was with Judge Silberman, it’s a little different. That made me very, very glad that I had clerked before because it would have been probably a disservice to Judge Silberman to have to learn on the go. By the time I was clerking for him, I felt like I learned so much about how to organize, preparation for a particular case, how to keep track of workflow, or how to plan out when drafts are going to be done so that I can come to him with a sense of my plan for getting a draft, or be ready to talk about a particular case. 

Each judge, I think, has their own way of doing things, and probably my favorite part of clerking for Judge Silberman was how much he enjoyed debating the case. For me, in some ways, it was the best preparation for being an oral advocate, being peppered with questions by the judge about particular cases and figuring out what the answer would be, the counter argument, thinking it through on your feet. It’s very different from a process where you’re only sort of communicating through bench memos. Those, I think, are the main differences. But I think the bottom line was I’m obviously very grateful to work for both of them, because I feel like they taught me truly complementary things, and both remain really important mentors to me.

Were there any specific techniques you learned from throughout your clerkship for how to organize or how to prepare bench memos or prepare your Justices or judges for oral arguments?

It will sound silly, but topic sentences are really important. It’s important to be able to state your conclusions at the outset of a memo or email or piece of writing — it’s certainly true of bench memos, but it’s just true in general. Judges are busy; they’re reading lots and lots of bench memos. The more you can explain to the judge at the outset, the better off you are. Otherwise bench memos can get super long, and that’s no fun for the judge. So I think bench memos in terms of technique, really trying to make sure at the outset there’s a clear introduction, a breakdown of the reasons, and then making sure that each section is pithy.

You obviously have to show your work, but you don’t want to include an overwhelming level of detail. The judge needs to have confidence that you actually did the research, looked into all the cases that the parties cited, but also did your own research. And the memo needs to reflect that level of engagement. But you also have to kind of take a step back and say: “How do you synthesize or recommend synthesizing all of these different cases?” And you can’t hide by saying, “Well, on the one hand, this case says X and on the other hand this case says Y. And I’ve looked at 17 cases, and they have mixed conclusions.” Well, sure, that’s one way of looking at it, but the important thing is to come up with a way of synthesizing them. The judge can always disagree with you, but at least you offered something novel.

Do you think your understanding of how to synthesize information and stay pithy bled into your work, the briefs you write, and how you prepare for argument?

Definitely. Clerking really gives you a sense of sympathy for judges. They get a lot of briefs and have to wade through a lot of arguments and a lot can be not particularly good. And those cases can be really hard because it might be a really complicated case, but neither party has helped you figure out what’s going on. And so if you add on top of that a clerk who does not give you a very good bench memo, you can see how a judge could conceivably be frustrated. And so going into the advocacy side, I think the goal is to make the judge happy, even if they’re going to rule against you, by at least giving them a very clear sense of your position. Hopefully, it’s something that’s fun to read and does not drone on unnecessarily.

You mentioned before that your clerkship with Judge Silberman was going to be the bookend to your clerkship experience. But then you went on and clerked for Justice Thomas. Why did you decide to go back to clerking and this time at the Supreme Court?

My judges had encouraged me to apply. When I applied when I was on the DC Circuit, I hadn’t heard anything, and I thought, “Oh well.” But clerkship hiring is a sort of cyclical thing. And pretty soon after I started at Arnold & Porter, my law firm at the time, I got a call to start the interview process for Justice Thomas. And I ended up getting hired. And then it was about a two and a half year wait to work for him because he was hiring pretty far in advance. So I think it’s another thing where, again, I didn’t really start off thinking, “Oh yeah, I have to clerk on the Supreme Court or I’ll be a terrible lawyer,” because I don’t think that’s true at all. 

I’m glad I had the experience of being a lawyer without a Supreme Court clerkship to know that it’s not some sort of magical, make or break thing that you personally need for yourself; it’s an opportunity to work for a justice and help them. It goes back to some of the things I said about government service. It’s an opportunity to help someone who’s vested with a really important job. And your role is to help that person reach whatever decision he or she is going to make. It’s not really about you. So the idea of service was really important to me. 

You ended up going to Justice Thomas’ clerkship after years of experience at a law firm. How do you think that changed your perspective and preparation for the clerkship?

I was very glad that I hadn’t gone straight through because, and this is certainly not true of most straight-through people, maybe there will be a temptation to feel a sense of entitlement or a sense of, “Oh, this is just my next stepping stone because I totally crushed it in law school, and crushed it in my clerkships, I’m going to crush it on the Supreme Court, too.” But because my path was not like that, I felt extra grateful for being able to clerk, and approached the year as a time when it’s really about the boss.

I do think it was helpful to have done Supreme Court merits cases before going to clerk, just to understand how the courts calendar works, how the certiorari process works, what makes for a good merits brief or a bad merits brief. And then I think having done a fair number of moots of people before going to clerk also was very helpful in figuring out: “You have a pile of briefs in front of you. How do you quickly get to the heart of the case? There might be like 30 amicus briefs and multiple briefs. How do you figure out what the arguments are quickly, and then get to a point where you can start evaluating them and figuring out the lines of research to pursue?” I felt like it was just really helpful. I think it’s a growing trend among Supreme Court clerks, at least in a fair number of chambers, to have had some experience in practice before. And it’s probably a good thing.

When you would have up to 80 amicus briefs in front of you and the briefs for the parties, how would you parse that information to find the most important things to include in your short recommendation to the justice?

Well, there’s no getting around reading. You have to read everything. You can learn to skim pretty fast and amicus briefs in particular, you can tell very quickly, if they are a “me too” amicus brief where they are essentially regurgitating what the party says, or if they have a unique perspective. And if they have a unique perspective, you can pretty quickly figure out what it is, and whether to pursue it. Because Justice Thomas approaches cases from the vantage of trying to figure out the original meaning of the Constitution, there are a lot of cases in which he’s obviously doing a lot of research that the parties and the amici have not done in order to try to figure out that work. And so those historical deep dives are always a part of the job for his clerks. I felt like having done a PhD, and having gone to all those archives came in handy in that sense.

Were there any writing lessons that you learned from Justice Thomas or ways that your writing improved throughout the clerkship?

Justice Thomas, in terms of his writing style, is very, very direct, but never mean. I think he cares a great deal, and I think My Grandfather’s Son is a pretty good example of this. I think he cares quite a bit about the craft of writing. And that really comes across to his clerks. And just, I think the need to be direct, and the need to come to terms with the real issues in the case quickly was something he does incredibly well, and was a good lesson from seeing so much of his writing. 

One more thing I would say about clerking in general: It’s a very good experience to have your co-clerks as critics, and for your judge or justices to be critics, because I feel like the only way you’re going to get better as a writer is if you can accept criticism of your writing. In all my clerkships, that was probably the best part of it. Crossing out that turn of phrase that you thought was particularly great doesn’t feel good at the time. But it really teaches you to be concise and direct, and to figure out when your sentences aren’t as clear as they can be. You need some external readers to be honest with you.

What do you think was the most important feedback that you got during the clerkship? In what areas did your writing get a lot better through the clerkship?

First of all, the job, when you’re clerking for any particular judge or justice, is to respect their style. And to make sure that you are writing in the way that they want you to write, as opposed to your personal style. And so that can feel, I think, to some people confining; to me, it was great. I think it taught me a lot of different ways of writing. I think various judges are more colorful than others in terms of how they frame things; they have different preferences in how they set things out. But that was a helpful thing for me to actually figure out what my own style was when it came to writing briefs, where you have more freedom. After seeing all sorts of different styles, what is your own style? 

In terms of other writing things, it’s everything. It’s concision, it’s clarity, what are cliches to avoid in writing — you kind of encounter them a lot. Judge Silberman famously hates acronyms. He has gone on a one man mission to eradicate acronyms, at least confusing acronyms, from briefs in the DC Circuit. He actually has several separate opinions going after people whose briefs use too many of them. And so I always have that in the back of my mind — do not use too much shorthand, or assume too much knowledge by the reader. 

What is your personal style? And are there any lawyers or judges or justices that you try to emulate when you’re writing?

I hope I have my own style. I think my favorite brief that I worked on is the Booking.com brief. Which you can look at if you haven’t. It’s the case about whether if you have a sort of generic term, like booking, and you add .com, is the whole more than the sum of its parts? And is it something that you can therefore trademark? The government said no, we said yes. In brief writings, where you’re trying to combine both the legal principles with a common sense approach, I remember driving around and seeing The Container Store and Waffle House and thinking, “Okay, the government’s theory does not seem to be correct, they have trademarks.” I like to write briefs that are somewhat fun to read without going completely off the deep end. I think it’s fun to mix it up. You have to be super clear on what your legal position is. But I have fun with it. 

Are there any specific phrases or sentences that you’ve been really proud of in briefs that you’ll remember?

Yes. In the Booking.com case, probably my all-time favorite sentence is: “If the government’s position were correct, Waffle House would be toast.” But there’s usually one or two in every brief where you feel a sense of, “Yeah this is fun.” Hopefully, it’s not too corny, but it’s a fun line that you feel a sense of pride in. 

It was actually Lisa Blatt that argued the Booking.com case, right? What is it like to work with such an awesome female litigation team at Williams and Connolly?

Awesome, it is really awesome. I’ve been working with Lisa now for almost the entirety of my private practice life. And I think that on all fronts it’s really great. It’s an unusual practice, as you say, because we have three women partners, including me, who run the practice. But I think it’s also fun. It is a collaborative environment. It is a very hard-charging environment, but it’s also a very flexible environment. All three of us — Lisa, Amy, and I — have kids, Lisa’s kids are in college now, my kids are toddlers, and Amy’s are in grade school. So I think it’s good to have a practice in which we all understand that we need to get our work done, we’ll talk to each other a lot, but we also have other things that are important to us — our lives, our families, our outside commitments. I think part of the fun is we actually like being around each other, but also respect that it’s not sort of 24/7.

What lessons have you learned from the other female litigators that are at your office?

I’ve learned so much from Lisa in particular. I think one of the best lessons from Lisa is: Don’t constantly beat yourself up. Don’t be looking for the next thing. You cannot judge your success in life by how many arguments you have, or how many fancy things you’re acquired. You need to have something at the end of the day to feel both professionally satisfied and personally satisfied. Lisa’s also just very funny and self-effacing. I think that she is a good example of someone who is confident because she’s confident enough to say when she doesn’t follow something. She’s not the person who’s sort of thinking, “I am the smartest person in the room at all times.” Quite the opposite. I think Lisa is very, very comfortable, maybe because she is so accomplished, just saying, “I’m not following this argument. Can you break it down?” 

Her brilliance is in figuring out how to make something that is really complicated as simple as possible, because it’s a constant process of, “How can you boil this down even more simply?” A lot of times, it’ll be, “Explain this to me as you would a fifth grader.” And that’s a great lesson of both not being too high on yourself, and also being really driven to actually reach true understanding. I feel like she doesn’t miss things, because she really breaks them down. 

What does it mean to you that Lisa Blatt’s willing to give you an argument or give your other partner an argument?

It means everything. I think it is very rare, unfortunately. You’ve argued 40 cases, it’s probably because you really think it’s fun and you’re also good at it, and it’s hard to give that up. But Lisa’s very unusual in that she’s genuinely invested in other people. She could have argued all the cases this past term, but she only argued one of them. And I think that is why people are very loyal to her, among other reasons. She actually gives other people opportunities and tries to help us. It’s not just talking the talk about wanting to help younger associates; it’s actually doing the hard work of bringing up arguments for people. And not just for me and Amy, our other partner, but also making sure associates who are starting out get opportunities. It is a lot of hours and a lot of calling of judges, begging for appointments for people or pro bono cases. But she really does a good job at it. And I think she finds it professionally rewarding. I certainly owe so much of my professional success to her willingness to do that.

Your first argument was telephonically. How did you pull that off? What was that experience like?

I felt lucky because Lisa had done the Booking.com argument, which I second-chaired, and that was the first telephonic argument. So I certainly paid very rapt attention when the court went over what the procedure was going to be for that. At least logistically, I felt pretty good about replicating that set up, and then I’d also done a couple of court of appeals arguments remotely before my debut. Even though some of them were Zoom arguments with video, the experience of not arguing live was at least not completely new. But it is a different experience to know that you aren’t going to walk through the marble hallways for an hour of nervousness before you’re up at the podium and seeing the justices. It’s much harder to read them obviously from the phone; you can’t see their facial expressions and they only have two and a half minutes. 

How do you prepare uniquely for each oral argument?

Read the briefs. By the time you’re prepping for arguments, the briefs are no longer as fresh in your mind. Carr was an exception because our reply was right before the argument, but in Salinas for instance, it was a while between the argument and when we finished briefing. Go through them as if you’re mooting the case. Write yourself questions about your briefs and the other side’s briefs, and then start keeping a running list of questions and answers that you’re going to craft as the process goes on. Read all the cases, read all the statutes. When you read the cases, use them to develop answers. Make sure you have the chronology of the case with the record. Have a very concise list of all the key dates and the records. 

And then it’s a matter of being ready to go into your moot. I like to be pretty prepared even by my first moot because I feel anxious that if I don’t do extra preparation for the first moot, a lot of the feedback will be stuff that I could have fixed myself. So I try by the first moot to at least have a preliminary summary. So have at least a grasp of the opening or sense of the themes to try out. And then go from there. The moots are really helpful in terms of getting your answers in place, as well as hearing feedback, like “You shouldn’t start with this, the better answer is that.” By the end of them, you feel like you’ve covered hopefully every possible line of questioning you might get, but also that you’re starting to come up with sound bites to memorize when you get a particular question. 

Do you prepare for questions from specific justices?

Not particularly, although the exception is in some areas you know that justices have put down markers. In the telephone format in particular — this didn’t so much happen to me — but in certain cases where, for instance, Justice Thomas said that he thinks the original meaning of a constitutional provision is X, I would imagine, if you’re an advocate, you would probably prepare for that much more than you would in regular arguments because your chances are so much higher that Justice Thomas might actually ask about that. 

I think it’s more of being ready for lines of questioning. And so, in Carr for instance, I think it was important to think through the case from a lot of different vantages, where different sets of justices might land. Justices that are more skeptical of the administrative state, what kinds of questions might they ask about particular precedents and distinguishing them, versus policy questions that might come from other types of justices. So it’s not so much tailored to specific justices; it’s areas of questions that could conceivably come up. While there are particular justices who have somewhat idiosyncratic views on highly specific legal issues, by and large you can group their approaches to any constitutional or statutory question into little buckets of who’s looking at original meaning, who’s going to be a super duper textualist, who’s going to care about the canons of statutory interpretation, who might ask the policy questions, who might ask questions about facts or the record. That’s what makes it fun.

Were there any questions that were unexpected that you felt you had to prepare for on the fly?

I was generally ready for the questions, which was good. I think that in any given argument, sometimes the judges or the justices will drill down in particular areas more than you might have expected from your moots, but I think as long as you have prepared with general lines of argument, you’ll be pretty prepared. And I was lucky that my mooters were able to capture that. 

How do you retain all the information that a justice will ask, especially if their question is more long winded or lengthy?

One of the advantages of telephonic arguments is if it is a really long question or multi-part, you can sketch down the key parts of it to remind yourself of as you’re answering. But obviously you can’t depend on that in-person, so it really is a matter of hoping that mooters actually try to ask multi-part questions. Which is true— in most moots you will get that, and so again it is a preparation thing where you have to train yourself to do it and let experience carry you through.

When you argue before the court, are there specific advocates or lawyers that you try to emulate or a specific style?

Lisa has the best take on this, which I really learned from. She always says that argument is truth serum, and I think that’s true. It’s very hard to be anyone other than yourself. My style is very different from Lisa; it would probably be terrible if I tried to pretend to be Lisa because she’s unique, or if I pretend to be Paul Clement — he has his own style too. I think the hardest part of being an advocate in some ways is reflecting on yourself and figuring out what your style is, and trying to stick to that. And embracing it and feeling sufficiently competent. 

My style is hopefully trying to be reasonably concise, convey my enthusiasm about a particular legal question, and tick off a couple of answers that are responsive. I mean the key part is answering the question, and seeming like you welcome the question. I find them fun, and I try to convey that. Informative, but a little more than that. Having fun answering the questions, and making it a give and take. And obviously, being respectful because I think if you have had 40 or 100 arguments, your style can be very different because you’re so much more familiar with the Court than someone who’s starting off.

Do you think you’ll always be able to have fun with the law, with the questions, and with your preparation?

I really hope so because I think that’s what makes the work worth it. If I wasn’t having fun, I think that would be a sign that I needed to make a different choice. I think that arguing should be fun, and it should be a time when you are enjoying representing your client. You’re not just doing it to go through the motions. This is your career; you’ve chosen to do it. And if you’re not having fun doing it, you should ask yourself: Why? Because I think you give your all much better when you actually enjoy it. 

So yeah, I hope so. Having fun is not like cracking jokes with the justices, but you’re having a conversation with them. You’re not a deer in the headlights hoping that you won’t get another question. I think they can tell, and so ideally I think you want to convey that you have a stake in this and are enjoying the back and forth.

Will it be strange to argue in person now that your debut has been made over the phone?

I don’t know. I’ve done enough in-person arguments in courts of appeals. The Supreme Court’s obviously different, but having done the telephonic arguments with the Court, I’m hopeful that it will feel more natural than it would have been to have the first one in front of the Court live. So I’m hoping it’ll reduce nervousness.

What are you most looking forward to about being able to argue in-person at the Court?

Seeing facial reactions and seeing the dynamic of the Court. It’s now a new Court with Justice Barrett, and so it’ll be very interesting to see how the justices play off each other when they’re in this scrum format where they can build off each other’s questions. There are a lot more tactical choices: When do you jump in, whose questions do you pick up on, whose do you deflect? The Court always changes when there’s a new member, and so seeing how they navigate that will be really fun to watch.

Interview: Marcia Coyle

by Elise Spenner

Marcia Coyle is the Chief Washington Correspondent for The National Law Journal, a national weekly newspaper that covers law and litigation. Marcia, a lawyer as well as a journalist, has covered the Supreme Court for 25 years. She is also a regular contributor of Supreme Court analysis to PBS’ The NewsHour.

Before joining the NLJ, she covered state and national government and politics for a Pennsylvania Times-Mirror daily newspaper for more than a decade. Besides her work for the Law Journal, she has written about the Supreme Court and other legal issues for such publications as Vogue, Ms. magazine and the New York Times Book Review, and she is a contributing author to a book on the Supreme Court, A Year in the Life of the U.S. Supreme Court (Duke University Press).  She also is the author of The Roberts Court, published in the spring of 2013.

Were you interested in journalism as a teenager?

I was, somewhat. We didn’t have a high school newspaper, but I worked on the yearbook. I was more interested in writing than journalism, per se. I’ve always been an avid reader of newspapers, even in high school, but I don’t think I saw myself as a journalist then. I saw myself as a writer.

Did you ever consider being a novelist or writing in other forms?

Oh, of course. I was going to be the great American novelist. When I entered college, I think that’s what I thought I would do more than anything. But when I was a sophomore in college, I got involved in the college newspaper, and then ended up being the editor-in-chief for almost three years, and really did get into journalism at that point. I used to work in the basement of one of the dormitories and was always the last one to turn the lights out. I would hand over the pages to someone to curry them downtown in Frederick, Maryland, where the Frederick news posts would put them up on the boards for me to edit before it went to the printer the next day. I loved it. It was great; it was exciting. We had a lot of fun. 

But there were no undergraduate journalism courses, so as I approached graduation, I had to make a decision as to what I wanted to do. And I thought, “Well, if I stay with journalism. I could use a little bit of an edge, since I don’t have the degree.” I did have some experience, but not the degree. I was really torn between law and journalism, because I could also see myself in law. I had gotten involved in a lot of the school politics in the four years I was there and student council; it was an all women’s college that was turning over to co-ed, and I was very much involved in helping it to transition that way. But I decided to go the journalism route — that’s where my heart was. I think I still had in the back of my mind that great American novel, and journalism was more likely to let me do it then law was. So I decided to go to graduate school at Northwestern Middle School of Journalism. I really didn’t have any money to go, my parents had never been to college, and my father didn’t understand why a college degree wasn’t enough. But because I had been so active in my undergraduate college, the registrar found me a fellowship that paid for my tuition at Northwestern, and my blessed mother sent me $25 a week from her switchboard job.

One of the reasons I wanted to go to Northwestern was that they had a winter semester in Washington DC. And it wasn’t just to avoid Chicago winters, which I know some of my friends there wanted to do, but I wanted to be in DC. They had this news bureau in DC; it was print as well as radio. They divided up DC into beats, and you would be working for newspapers — at least on the print side — around the country that didn’t have Washington bureaus. So my beat was the Supreme Court — so lucky, so lucky. I just loved it. I loved going to the court. The press room was this wild place at the time. It is very staid now, but it had great journalists, a lot of fun.

I had my first front page story in that bureau, when a Supreme Court case involving Miles City, Montana was decided, and I wrote about it, and that was my first real front page story in the Miles City, Montana newspaper. And when I finished there, the retired journalist who ran the program in DC — and aren’t they all grouchy old men — he roughly said to me, “Well, do you think you’re ever coming back to DC?” And I said to him, “Yes, I’m going to come back, and I’m going to come back and cover the Supreme Court.” And it took me nine years after that. But I did. 

But along the way, I grew up as a reporter in Harrisburg, Pennsylvania, where I was covering state government and state politics for a family owned newspaper, the Allentown Call Chronicle — Allentown is the third largest metropolitan statistical district in Pennsylvania. And there again, I was just so lucky. When I got out of Medill, I couldn’t find a job. I sent out 100 resumes, I decided that it would be nice to live in New England, so I took a trip with my mother up the coast of New England, and I applied at every little newspaper town along the coast from Connecticut up to New Hampshire, still didn’t get a job, came back home, and knocked on the door of my hometown newspaper, “The Allentown Morning Call.” They had one opening. It was on the obituary desk, and the managing editor said, “You’re overqualified.” Can you believe that I was overqualified for the obit desk? And I begged him, “Just let me start, let me start,” And so he did. It was great. I wrote a lot of obituaries, but I also took notes from this string of correspondences around their circulation area. I would have to write their stories up for them, they would dictate their notes to me, and I would write their stories. 

One of the dictators was the Harrisburg correspondent, Ben Livingold, who was probably my first real mentor, and I got to know him over the phone. He tipped me off one day that the paper was thinking of expanding its Statehouse Bureau, and he said I should go apply for it. I was like, “I’m on the obit desk, Ben.” And still he said, “Go ahead, you’ve got a good background, go do it.” So I walked into the publisher’s office and said, “I hear you’re expanding your Statehouse bureau. You should send me.” And he did. I know he got me very cheap at the time, but he did. And that’s really where I grew up as a journalist. It was a great beat. There was lots of corruption in the Pennsylvania legislature. I covered the Three Mile Island nuclear accident while I was there; I traveled all around the state during the elections with candidates for governor or US Senate. It was a great place to learn to be a journalist. There were only three women in a press room of about 35 reporters from all around the state, so that was another way that you quickly grew up in journalism. 

I eventually got to Washington, again, when the paper decided it wanted to open its first Washington bureau. At that point, I was going to law school nights in Baltimore and commuting between Harrisburg and Baltimore. I was on the road about three hours every night, and they knew I was doing that and they thought that once I finished that I might have other plans. So they asked me to open the Washington bureau. And I opened the Washington bureau for them, finished law school, and decided I wanted to combine law in journalism. The National Law Journal had a bureau three floors above mine in the national press building. I went up one day and knocked on the door. They had an opening, and I applied for the job. I got it. Three months later, the bureau chief who covered the Supreme Court left for the Los Angeles Times. No one else in the bureau wanted the Supreme Court as a beat except me. And there I was back at the Supreme Court, where I’ve been ever since. So I’ve just been incredibly fortunate, and I worked hard, but there was a lucky star out there for me. That’s a long way to give you my career in a nutshell.

What did you learn from covering state government and politics at the somewhat-local level?

It was not local; it was statewide. I covered the governor’s office, I covered the state courts, I covered the Pennsylvania legislature, but I did have to keep an eye on legislators from my circulation area. I learned how the government works and doesn’t work. Pennsylvania, in particular, was an old style of politics. I don’t think it happens today, but if it did happen today, there would be tremendous criticism and reporting about it. There was some reporting about it when it crossed the line into criminal activity. But there were backroom deals. The head of the Pennsylvania Senate was indicted and convicted, and I always remember his last press conference, his name was Buddy Cianfrani, and he said to us, “Well, they’re sending me up the river,” where the federal prison was. It was full of characters. It’s hard to describe. Some of them you could actually like because they were very open about what they were doing. I learned how the state was divided up, how you had the very progressive Democrats in Philadelphia, the more conservatives in Pittsburgh, and right down the middle of the state was something akin to a bible belt. So, it was fascinating to travel with candidates, to travel with my colleagues. 

I had always had a good sense of humor, so that helped me get along with them, but it also helped me in the press room, where, as I said, there were only three women out of 35 reporters. Some of them were very old fashioned. There was a back room where five or six reporters all sat playing hearts, and they would listen to the legislature above them. You didn’t want to interrupt the hearts game. And then there were things they did that, I guess you could take offense at, but were kind of funny. I had my desk smack in the middle of  the UPI press room; there were about four UPI reporters and me. And it was a very historic press room. We were the oldest working press corps in the United States. And so sometimes tourists who were in the Capitol would come through the press room, and I noticed one day, there was snickering as tourists walked through the UPI room. And I didn’t understand what was funny about this, so I got up to go to lunch, and I found a sign on the back of my chair. And remember, I was working for the Allentown Morning Call. Well, this sign said Morning Call Girl. What do you do with something like that? I just laughed because it was meant in good humor. They were always respectful of my work, I never was harassed by them. It was just funny. But I learned how to deal with those guys. And that was a really good experience for me. It was a great beat, but I think after nine years — I didn’t know if I was getting tired of Harrisburg, or I was getting tired of the beat. That’s why I decided, “I don’t want to wake up some morning and hate my job and my life.” And what else would I do if I left journalism? Law. So, I decided to go to law school at night.

You’ve mentioned that you went all the way up the New England coast looking for a job and you didn’t get one. Did you feel like you were slighted because you were one of the only women reporters? Did that ever happen to you?

No. At the time, everybody was having trouble getting a job. And these were small newspapers, so they didn’t have a lot of turnover, and I had the degree, but I didn’t have anything else to really set me apart. I didn’t think there was anything sexist about it, it just wasn’t working out, and then I did get hired by my local newspaper. The only time I ever really ran into sexism is when I was covering the Pennsylvania legislature. I would go to committee hearings and sit at a press table. Before the hearings, staffers usually hand out any testimony that’s pre-printed, and I would often be sitting right there between other male reporters, and they would go right by me. They would give it to the male reporter on my right and the male reporter on my left, but they’d skip me. Once it happened, it didn’t happen again because I would say something about it. 

My male colleagues in Harrisburg were extraordinarily supportive of me. When I was going to law school nights, I couldn’t time my classes to jive with the schedule of the Pennsylvania House, which often would have debates on the floor that went well into the night, on budget and on abortion. My colleagues covered me until my last class was out at 10. And I had to get up to the Capitol, it took me an hour and a half, and they would cover until I got there, and that was amazing to me that they were willing to do that. Fortunately, it was a morning newspaper, so I didn’t have my deadline until 2am. And I could usually make that deadline. I did make that deadline.

I don’t mean to switch gears quickly, but when I was preparing for this, I saw that you wrote about racial discrimination in regards to environmentally hazardous toxic waste. I was really interested in that, because it’s not related to the Supreme Court and law. Why did you write about that?

I had a three-person bureau in Washington for the National Law Journal, and one of the three reporters was our environmental reporter, Marianne Lavelle. The three of us were looking for an investigative project that was timely, important, and hadn’t been done before. And she was the one who suggested we look into environmental racism. And I thought, “Well, this is really fascinating.” I knew nothing about environmental racism, so we just started backgrounding ourselves. We read articles, books, and we found two scholars who had written a lot about it and talked to them. And then we sat down and said, “Well, what can we do with this?” We wanted to do a database investigation, which at the time was rather new. Fortunately, Marianne was a computer whiz — unlike me — and so she suggested that we look at Superfund Sites, where they were located, by their demographics, and how quickly or slowly EPA was doing the cleanup. She’s the one who created this amazing database in which we could plug in everything. And we found in our project that the EPA was taking longer to clean up sites that were located in poor people of colors’ neighborhoods or areas. And then we picked three or four sites to visit and to talk to the people who lived around there about their experiences. We plugged into some of the environmental groups that were trying to get the EPA to move faster. 

Ultimately, we had a sit down with EPA, which was quite an experience. We thought we were just going to meet with one person. Instead, we walked into an office with 20 people arranged around a long table. I remember as we were going over, Maryanne asked me, “What are we going to say? What are we going to do?” And I said to her, “We’re going to listen. We’ll just listen to them. Don’t feel you have to defend anything, or that you even have to answer their questions.” They knew what we were finding. So we were going to go listen to them. And that’s what we did. It was a time when our editor-in-chief, who was young, and the publisher, would have gone nuts to know we were doing this, because all he cared about was coverage of law firms and the legal industry. But she found a way to finagle the budget so that we could do this. I’m extraordinarily proud of that project, and we should have won a Pulitzer for it. It was path-breaking. We were an ambitious little bureau.

In 2013, you wrote a book called The Roberts Court. It was centered around four landmark cases: Parents Involved, Heller, Citizens United, and NFIB. How did you choose those four specific cases to represent the Roberts Court?

First of all, I was looking for 5-4 decisions. Not because I wanted to show the court as always divided, but because I continue to believe that the 5-4 decisions help us learn the most about the Court. They reveal the most about how each justice thinks and approaches constitutional or statutory interpretation. And I wanted them to be cases that people would care about and would be interested in reading about. It wasn’t hard to pick those cases; they sort of jumped out at me, and they were intended to take the reader through the years of the Roberts Court from 2005 until the book came out in 2013. And when the paperback version came out, I had to write a new chapter that took us through the Shelby County case. 

It’s been eight years since Shelby. What cases would you add to that book if you were to write an update?

It’s actually something I’ve been thinking about lately because my publisher, right before the pandemic lockdown, had contacted me about updating the book or taking a different tact. And I don’t want to reveal what I’m thinking about in terms of how I would do the book. But in terms of important and interesting cases, you would almost have to focus on the religion cases, because I think that’s going to be one of the enduring legacies of the Roberts Court. I think I would also pick the shadow docket and explain to people what’s happening with the shadow docket and how significant it has become. That spills over a bit into religion, but the shadow docket has been very important in terms of the death penalty. I think probably, but we’ll have to wait and see, abortion. Put aside next term, which may be the biggest one of all, but I might pick Whole Woman’s Health or June Medical. Probably also Bostock, the LGBT case that Gorsuch wrote. I think that and also maybe the companion case to that on sexual orientation. I’d have to think about the criminal justice area, nothing leaps out at me at the moment in terms of how I would use them. This last term, of course, you saw what happened with Jones and the death penalty involving minors, and whether the courts are now starting to drift away from Justice Kennedy’s view of those things. I might return to voting rights with Brnovich

I want to talk a little bit about your reporting on the book. How do you craft relationships with the justices to the point where they’re willing to open up?

One: my longevity in covering the court — they knew who I was. Two: I try to be that objective journalist. I know nobody believes that journalists can be objective anymore, but I try to play it very straight in my reporting of the Court. And three: I think they got to know me even better when I started doing PBS NewsHour Supreme Court analysis. I interviewed Justice Ginsburg a number of times before she died. The very first time I interviewed her, as I was leaving her chambers, she was right behind me, and she tapped me on the shoulder, and I looked back and she said, “I watch you on the NewsHour on my treadmill.” And then I said, “So how am I doing?” And she said, “Very good.” 

All you really have is your reputation, and you build that reputation through your reporting and how you deal with your sources. When I joined the National Law Journal and the beat opened, that’s why my colleagues in the bureau didn’t want the Supreme Court beat. You have so little contact with the original source of information. They were covering the Justice Department, other agencies, the White House, where you could actually call up a source or get an interview with that source. But the Supreme Court is not like that. You can’t call up a justice and say, “What did you mean by footnote four?” Or, “Was this a really hot case to talk about in the conference room?” They won’t respond to that. So you really have to build your reputation and trust through your actual reporting. 

You try to show them that you’re serious, as well, by showing up for oral arguments. And that was one thing I was taught when I first started — that if you wanted to learn the Court, go to oral arguments. That is your main avenue for seeing them and hearing them, and you will learn just by sitting there and watching and listening. I try to go to as many of the arguments as I possibly can. But yeah, it’s really tough. There are some journalists who have had personal relationships with justices, like Nina Totenberg and Justice Ginsburg. And the guy on CNN who had the unfortunate experience on Zoom and was suspended from CNN — Jeffrey Toobin. He’s part of an old boys club from Harvard, and he knows Justice Kagan, he knows Justice Breyer. And he just gets entrée because he’s part of that club, and I’m not. I’m not Ivy League, I’m just me. So you really have to work hard. I’ve probably been turned down more times than I have been granted interviews.

In your book on the Roberts Court, why was Justice Scalia willing to speak on the record while all the other justices weren’t?

Because he’s Justice Scalia. Initially, when I went to interview him, he asked me, “What did Chief Justice Roberts say about talking on the record?” And I said, “Well, he said, off the record.” And he said, “I’m going to do what Chief Justice Roberts does,” I said, “You know, Justice Scalia, there is an in-between here, and that’s on background. Why don’t we do this? Let’s do the interview. And I’ll honor off the record. But I will come back to you and ask you if you’ll go on the record with certain things.” And he agreed to that. And so that’s what I did. I went back to him after the interview. I had transcribed the interview, and gave him a copy of the transcription and said, “What do you think? What do you think you can live with here?” And he was just Justice Scalia. He agreed to a lot of it. There was some he didn’t agree to, but he agreed to a lot of it. Also, it surprised me — and maybe it was just the older members of the Court at the time — that the justices did not always really understand the rules of interviews.

When I interviewed Justice John Paul Stevens, he wanted to be off the record. I was getting really tired of this at that point. And I said, “Justice Stevens, we could talk on background,” and he was like, “Well, what does that mean?” I said, “Look, if you’re off the record, I can’t use anything you say to me unless somebody else, out of the deep blue sea, says it as well. But I can’t use it. But if we’re on background, I can. I just can’t say that you said it, or indicate in some way to the reader that it was you.” And he said, “Oh, that’s fine.” It was like a light bulb went off. And you’re sitting there and you think, “They don’t know this because they don’t have that much contact with reporters.” With others, I did the same thing I did with Justice Scalia: transcribe the interview and go back and ask, “What can you live with?”

Do you have different strategies for interviewing each justice? I know that with Justice Ginsburg, you said that you have to wait and wait for her to say something, and then she gives you a whole paragraph.

Nobody warned me the first time. And they laughed in the press office when I came down and I said, “Why didn’t you warn me?” Because you sit there with Justice Ginsburg, and you wait, and you want to say something, you want to fill the air, and it’s hard. And if you don’t realize that’s her style, you really feel like something’s wrong. But once you realize her style, you wait, and you get these perfectly formed paragraphs from her that often are very revelatory. With Justice Scalia, I wanted to be respectful but funny. When I asked for the interview with him, I wrote out the request for the interview, and I had the letter taken right to his chambers. In it, I said “If all else fails, and you don’t want to talk to me about the Court, we can talk about why so many Italian men marry Irish women,” Because that’s what my father did, and I can list 10 names of people where Italian men married Irish women, and I knew that sort of thing would resonate with him. And I got the interview. 

With somebody like Roberts, I wanted to be very respectful and very careful, because he’s a very cautious person. And I wanted to be sure my questions were phrased in a certain way. At one point, he even said to me, “I wasn’t going to answer any of your questions, but the way you’re phrasing them, I feel like I have to answer them.” I wasn’t trying to trick him or anything, but it was a way to get him to talk. Justice Kagan is another one who’s got a great sense of humor. At one point, we were talking about Toobin, who she knows, and I made a comment about the reading of the Affordable Care Act decision, because Toobin had written that Roberts read his opinion with bloodshot eyes. And I said to her, “Toobin was sitting in the same row I was, but he was at the far end, closest to the public audience. So there was no way he could see Roberts’ eyes.” And soon after that, I made a comment asking whether it had been a particularly difficult case to decide, and she looked at me and she goes, “Oh, Marcia, now you’re being very Toobin-esque.” She’s very, very funny. So there’s no magic formula. It’s just what you sense from having observed them, what they may be willing to tolerate. 

I have not interviewed the newbies yet. I’ve tried. I tried to get an interview with Barrett recently, and she said she wanted to hunker down and do her work. I understand that, it may take a while. Kavanaugh had an informal gathering with some of us, but I haven’t had a 1 on 1 interview yet. Sometimes you want to wait until you get a better sense of who they are because you want to ask intelligent questions. I think the best interview I ever did with Ginsburg was after Shelby County, and there were a number of decisions in which she had assigned dissenting opinions to Sotomayor and Kagan, and she was willing to talk about why she picked them. And so that was a real window into her, her thinking about the Court, and what she wanted to be said in those cases. So sometimes you just need to wait until you have a better sense of who they are and what they’re doing. And that’s what I’m doing with the new crew.

Do you think a justice has ever said something in an interview that they didn’t intend to say? Or is everything well prepared and meticulously crafted?

No, I don’t think so. Not at all. In fact, I did one interview where a justice called me afterwards and said, “Please don’t use that. I didn’t mean to say that.” There wasn’t anything horrible. He didn’t say anything harmful. It just was a little window into something that had happened, and he didn’t want it reported. I think sometimes it just slips out. 

In general, when you come out of an oral argument, how confident are you that you know which way a case is gonna swing?

Not at all. There was a study done of how accurate some of the media stories are after oral arguments and a decision comes out. When Linda Greenhouse covered it for the New York Times, she was amazingly accurate with her reading of oral arguments. But I am not. There are some arguments where it’s really obvious what’s gonna happen. But, the big cases, you just don’t know. Look at the cheerleader case, for example. It looked like the cheerleader was going to win, I think we all felt that. But how was she going to win? That’s where you don’t know. And look at Fulton, the LGBT foster care case. We were pretty sure that Fulton was going to win, given the trajectory of the Court in this area. But how? More important than the bottom line, to me, is trying to figure out what exactly they are going to do, and how they are going to do it. That’s why so many of us have crafted these wonderful leads: “The Supreme Court Monday wrestled with…” or “The Supreme Court Tuesday struggled to do…” You can sort of hide behind that. And then maybe bury a little farther down in your story how you think the argument went.

When she covered the Court for the New York Times, Linda Greenhouse always read the dissent first. What do you think about that?

Many of us do. I will look first to the syllabus for the holding — what did the court hold? And then, I look for the breakdown. Is it unanimous? Is there a dissent? And if there is a dissent, then I’ll go to the dissent.  The dissent, even though it might be hyperbolic, will often tell you what the impact is. And that helps. 

What do you think is the best piece of advice that you’ve received on covering the court?

Probably going to oral arguments. And then preparing in advance for those arguments. Read as many of the briefs as you can. Some of the cases will have as many as 100, if it’s an abortion case. You certainly want to read the petitioner and the respondents briefs on the merits, so that you understand what the arguments are about. Because if you don’t, you could be quite lost. I’ve also been really fortunate over the years to have found lawyers and academics who have talked to me about legal issues that go before the court, and really have taught me a lot. There is a Columbia law professor and one at American University who really helped me understand habeas corpus, which is tough. And I could rattle off a half a dozen other names, too, that have been unsparing with their time when I call to talk about these cases. 

When you’re at an oral argument, what do you do? 

I have a pen and a little notebook. Sometimes it’s a reporter’s notebook, but I don’t really like writing on them because they’re too long and narrow. I like the 8 ½ by 11 notebook — yellow, white, doesn’t matter. When I first started covering arguments, I felt like I had to get every word down and was afraid of missing something. Now, I try harder to resist that impulse, listen before I write, and pick out main themes. When I started, after an argument, we would all be down in the press room, and we’d be comparing notes, mainly quotes, to be sure that if you missed something, somebody else had it. And that was as accurate as you could get. But now, with the transcripts available, it just makes life much easier. And you can usually get them fairly quickly. If there are two arguments, you can usually get unofficial transcripts around one o’clock. It’s harder for wire services who have to get something out immediately—and even for me, now that we’re pretty much all web-based. I remember when the same-sex marriage decision was expected, my bureau chief at the time said, “I want something up on the web within 15 minutes of that decision.” And I was like, “It takes me 15 minutes to get down from the courtroom and through the crowd to my computer!” 

If you know the court is having an oral argument, or if you know a case is coming out, do you have an outline of the story before the oral argument or decision comes out?

I do it for the decision, but not for the oral argument. We call it B material. I will often have a draft with all of the background information, and a synopsis of what I’ve written about the argument, so all I have to do is the lead, the top, maybe three or four paragraphs. And then we can get it out the door and go back and update if necessary. You have to do that now, because everybody’s competing to get posted so quickly. It’s a little unfortunate because you have to read so quickly, and you may be more prone to error. 

When I joined the National Law Journal, I was leaving a daily newspaper in order to go to a weekly paper, where I thought I’d be writing about law in-depth, and have the time to really write in-depth and write well. I was told by the editor at the time, “Before you get our premier place on the front page, you have to learn everything possible about the issue or story you’re writing about. I don’t want you to put one word down until you feel you’ve mastered the idea.” And they gave you two to three weeks to write a front page story. Well, it’s no longer a newspaper, it’s a monthly magazine. All of our work is now on our website and there’s enormous pressure to produce every day and to produce quickly. So I’m back into the daily newspaper mode of my life. My life has come full circle. And I can do it, but it’s not often as satisfying as it was initially.

What cases are you most interested in coming down the pike for coming terms?

Next term, obviously, the Dobbs case — the abortion case — as well as the gun case. But I’m also waiting to see what the Court is going to do with the affirmative action case involving Harvard, and the challenge to its use of race in its admissions policy. To follow-up on LGBT issues, they have an interesting petition pending on whether a religious hospital can deny transgender care or services. There’s been a number of lawsuits filed on the critical race theory controversy; I want to see whether they’re going to percolate up to the Supreme Court. I want to see how the Biden administration policies fare, if they are challenged in some way. It’s not as sexy an issue, but there are a number of states that have challenged the COVID relief bill because states can’t use that money for tax relief, and they’re suing the Treasury Department over that. 

Will the Biden Solicitor’s General office be like the Trump Solicitor’s General office and run to the Court with emergency applications when they lose in the lower courts? Are they going to use that mechanism as much as the prior administration did? And also, what happens with the shadow docket? Is that going to continue to be as relevant as it has been in the last couple of years? Voting rights is going to be with us. I know those lawsuits are out there, and they’re going to come to the Court too. I really try to follow some of these issues from the district court level to the Supreme Court. I’ll pick a few cases that I can follow, while I’m also covering what’s happening at the Court. It’ll be an interesting term.

Last thing: will the Court continue to livestream oral arguments when we’re back in-person?

I wish I knew. As I told you, I just did a story about what the advocates are hoping for. They’re all hoping to be back in-person, but they all want to continue live-streaming the audio. And how can you not agree to do that after what we went through? It would be awful. It’s such a small thing to do for the public. I can sort of understand their reluctance to allow cameras. But live-streaming of audio? I would also like them to have live-streaming of the audio of them reading their summaries of their decisions from the bench. We’ve been told there is some reluctance to do that because sometimes, the prepared summary by the Justice is not exactly what others on the court thought they had agreed to. They may not change the bottom line, but it’s inflection or subtlety that they don’t like. So that might be a hurdle, but again: live-streaming of the arguments? Oh, give me a break! Let’s do it.

Thursday, July 15, 2021

Book Review of Point Made

by Elise Spenner

After grading another long-winded book report, my fourth grade teacher told me to make my writing more concise. I didn’t know what “concise” meant at the time, nor did I understand why writing more than everyone else was a bad thing. But I certainly wish my teacher had given me a copy of Ross Guberman’s Point Made so that I might have avoided another five years of redundant and tortuous writing. 

Obviously, no sane fourth grade teacher would assign a book on how to write like the best appellate litigators.1 But Point Made is an excellent and engaging read for long-winded high school sophomores. It might be a controversial statement, but Ross Guberman is the Marie Kondo of the law — and Point Made is the life-changing magic of tidying-up your legal writing.2

Despite being chock-full of writing tips, Point Made is an enjoyable read. To summarize quickly, I found the book helpful for two main reasons:3

  1. For all the creativity and freedom of writing, Point Made gives you objective principles and practices that can make your work more compelling, digestible, and enjoyable. 
  2. Reading good writing begets4 your own good writing— and Point Made showcases the best writing that the legal profession has to offer. It is a testament to the quality of these briefs that I could comprehend the gist of each case by reading short, 5-sentence excerpts. 

Guberman points out five crucial aspects of a legal brief— the theme, the tale, the meat, the words, and the close— and suggests fifty ways to improve your writing in each area. Most of the tips in Point Made focus on writing a winning brief. These include an engaging way to write your first introduction paragraph (like a journalism lede, Guberman says, with the “Who, what, where, when, and why”) and a few much-needed techniques for acknowledging but not embracing your opponent’s viewpoint. 

But even if5 you aren’t trying to excel as an appellate brief writer, Guberman’s book offers universal grammar tips that any writer needs at their disposal: how to transition succinctly between sentences, clean up your clauses by sprucing up your verb choice, and “number your path to victory” with pithy lists. He even encloses a list of “zinger” verbs that can rev the engine of your brief. I dog-eared this page, and a few of my favorites include:6 bludgeon, hoodwink, chisel, stymie, and sunder. Of course,7 nothing beats the late Justice Ginsburg’s use of “pigeonholes” in her brief in Craig v. Boren, regarding disparate drinking ages for men and women. 

Guberman’s book was especially helpful as this term came to an end. Parsing mountainous and arcane opinions, I relied heavily on the general writing tips in Point Made. Value shorter sentences that pack a punch over long and circuitous prose. Indent and order key points numerically, rather than linking them together in a dense paragraph. Start your sentences with a one-syllable introduction word (and, but, so, if, well, then) rather than a lengthy transition. 

Accompanying each lesson are multiple examples of the technique in practice, pulled from the briefs of stellar advocates. So while I was mastering the craft of legal writing, I was also immersed in the fascinating lawsuits, civil trials, and appellate battles of the past decades. I’m not sure how long it took for Guberman to curate his list of briefs, but it paid off in the combination of landmark cases, obscure copyright suits, and famous scuffles between corporate behemoths or feuding celebrities. It must have taken a bit of wizardry8 to find four appropriate times to reference Larry Lessig’s brief in the copyright suit brought by JK Rowling against The Harry Potter Lexicon. 

A repeat case-in-point is John Roberts’ brief in Alaska v. EPA (arguing that a polluting facility fits the “best available technology” requirement of the Clean Air Act)9. Often heralded as a Hall-of-Fame-worthy brief, Roberts employs almost every one of Guberman’s techniques, as well as a famous analogy between selecting the “best” technology and choosing the “best” car. “Mario Andretti may select a Ferrari; a college student a Vokswagen beetle; a family of six a minivan,”10  Roberts wrote. It’s a legal writing expert’s dream. 

Guberman’s book, of course, can’t promise that everyone will learn to write as clearly and succinctly as the Chief, or pair masterful hypotheticals with fitting anecdotes like Justice Kagan, or showcase the same scathing wit as the late Justice Scalia. But Point Made does break down what these once-in-a-generation advocates do, how they pull it off, and why it works, on the off chance that the next Paul Clement will flip through its pages and learn some tips, or that a mediocre litigator will pick up a technique or two for their upcoming brief.11 Even a teenager might remember a strategy for her next blog piece.12

Anna interviewed Ross Guberman a couple of years ago, and I always found it interesting that his two main interests in high school were music and math. Not13 writing, although he would later end up doing graduate work in literature and — even then —14 had a knack for grammar. I think this plays into the purpose of Point Made, as a book that is about fantastic prose, but also about the objective science and the minute techniques that make a piece of writing successful.15

The techniques from Point Made that I used in this piece: 

1 Panoramic Shot: Set the stage and sound your theme

2 That Reminds Me: Examples and analogies

3 The Short List: Number your path to victory

4 Zingers: Colorful words

5Heads I win, tails you lose: Argue in the alternative

6 Magician’s Mark: The Colon

7 Take me by the hand: Logical Connectors

8 What a Breeze: Confident Tone

9 Ping me: Introduce your parentheticals with parallel participles

10 Speak for yourself: Include a single-sentence quotation

11 Freight Train: The balanced, elegant long sentence

12 Size Matters: The pithy sentence

13 The Starting Gate: The one-syllable opener

14 A dash of style: The dash

15 Parallel Lives: The parallel construction

Interview: Nina Totenberg

by Elise Spenner

Nina Totenberg is the legal affairs correspondent at National Public Radio (NPR). She is widely recognized and admired for her reporting on the Supreme Court. Totenberg wrote the consequential report on Anita Hill’s allegations of sexual harassment during the confirmation trial of then-Judge Clarence Thomas and broke the story about Judge Douglas Ginsburg’s use of marijuana. Our discussion centered around Totenberg’s ground-breaking path to legal journalism and her reporting techniques. 

You read The Making of a President by Theodore White as a teenager. Why did that book influence you so deeply?

Nina Totenberg (Penn State, https://flic.kr/p/dnjEzN, CC BY-NC 2.0)

Because candidly, it looked like so much fun to be a reporter. It was everything I wanted to do — being a witness to history, at the same time that I could run around and try to get scoops and ferret out stories that people didn’t want me to get. And at the time, the idea of even being a reporter was a pretty unlikely thing to be able to conquer. But even more unlikely were all the other things that I was thinking about, like being a detective — which I really did think about. But there weren’t any women detectives in those days.

I don’t know why I thought I could do the job of being a reporter, but I really did think I could do the job, and that I could be good at it. And so I was 15 or 16 when I read The Making of a President 1960, and it just seemed to open a whole new door to a life of possibilities.

I could see some people reading that book and wanting to be the next JFK, not the next Theodore White. Why did being a reporter appeal to you more than being a politician?

I never wanted to be an actor in history — a primary actor. I didn’t want to run for office; I didn’t want to do any of those things. I wanted to be an observer, but not a passive observer. The idea of a free press is in part that you’re a watchdog. I wanted to be a witness to history and a watchdog of the people who ran for and were elected to office and made policy. I’m not a causist. I’m a reporter. 

Did you have any mentors at the time other than the gutsy Nancy Drew?

No, because there weren’t any women in journalism, for the most part. My very first job was on the women’s page of a newspaper in Boston, which is long gone. It was a tabloid, sort of like the Daily News in New York now. It was a respectable tabloid, and it was a Hearst newspaper back then. It was called the Record American, and I got a job on the women’s page. And the women who ran the women’s page were not reporters either. They rewrote press releases about fashion and did recipes and wedding reports about the pearl-encrusted dresses, and things like that. This was not a real reporting job; this was a rewrite job of inconsequential things. And so I volunteered to go out at night. I was the leg man if the reporter covering the school board had to come in, and I would phone in details of what happened after he left. 

There was one woman on the paper. Her name was Jean Cole, and she was a crime reporter, a very good crime reporter, but I was very lowly compared to her. I just tried to emulate her, and I would often go out at night with a photographer who had all of the radios from the State Police, the Boston Police, the fire department, etc. And we would go careening from one emergency to another, and I would phone them in.

If you hadn’t taken that opportunity when you were assigned to cover the women’s page, would you have been able to get where you are today? Did it take that extra push from yourself?

Oh, it took that extra push, but I don’t think it really helped in any immediate sense. I didn’t get much credit for it, as far as I know, from the executives at the paper. It’s not like they then let me work on the news side — they didn’t. 

Eventually, I left, and ended up at The Peabody Times in Peabody, Massachusetts. I think there was one other reporter there, and for a brief time there even was a woman reporter, but most of the time there wasn’t. And I did everything there. It was the best training ground you could imagine. It was a twice-a-week newspaper, so it wasn’t quite the crash deadline that the daily had. I covered everything; there was a day when I looked at the newspaper and every single story on the front page had my byline. It was a great, great training ground. And the guy who was the editor, his name was Jerry, he was a good writer and a good workmanlike journalist and he taught me how to write for a newspaper more than anybody else.

What did you gain from covering that wide diversity of stories instead of being pigeonholed into one beat?

When you work for a suburban newspaper, a daily or a twice-a-week, everything has to be covered. It’s not a question of choice; they don’t hire feature reporters or beat reporters for those kinds of newspapers. If you cover the City Council. you also cover the school board and you also cover the local courts and you also cover features. There was one great story I wrote where somebody called us and said, “I think there’s a bank robbery going on at the bank.” So I called the bank and I said “Hi, this is Nina Totenberg at the Times. I just got a tip that there’d been a bank robbery there.” And the guy said, “Yes.” And I said, “Who am I speaking to?” He said, “You’re talking to the robber.” They were the most hapless robbers. They escaped trailing cash behind them and were quickly apprehended. But it made for a great story.

When you were first assigned the Supreme Court beat, what was your initial reaction to having that job?

I was working for the National Observer, and I was assigned to cover the Court, but I was also a general assignment reporter, so I did lots of other things. I did political stories. I remember covering a hearing on Capitol Hill about an oil spill in California. They even sent me to Northern Ireland to cover the troubles there. I’d been assigned to cover one single story about what was going on there, and I said, “Is there any chance you’d send me there?” And they did. So I covered the waterfront of stuff. But I also covered the Supreme Court, and that meant that I had to learn about it, and it was a wonderful experience learning about it. But I had many other responsibilities as well.

You’re known for not being obsequious, as well as for understanding that it’s okay to be adversarial. Do you think that’s a true characterization? 

Well, you don’t want to be in the tank with anybody. I’m friends with a lot of people I cover, but that doesn’t mean I can’t cover them in the way I would cover anybody else. And I think when they’re professional, they understand that. RBG certainly understood that. If you read the remembrance I did about her, I talked about how my husband, for something like six weeks, was helping her when she was diagnosed with lung cancer. And she said, “Don’t tell Nina about this.” And then on the day that she was operated on, and after I’d done all the stories about it, I met my husband for dinner, and she called me from the ICU, and she said, “I’m calling you to explain that I didn’t want David to tell you about this because I didn’t want you to be trapped between your obligation as a reporter and your friendship for me.” By then I had a very close friendship with her; I’d known her for almost 50 years, and I knew that she was fighting this battle against cancer. It brought tears to my eyes, but I certainly wasn’t mad at her and I wasn’t even mad at my husband, because he’s a professional — he’s a trauma surgeon. I’m a professional and she’s a professional and we each have our own roles to play.

When you are trying to get information out of someone that doesn’t want to talk to you, what are your tactics for getting them to open up?

Well, I pester them if they don’t want to talk to me and make a pain of myself. And I try to see them. That’s obviously been impossible for the last year and a half. It always pays to get to know people so that they are not comfortable skipping over you. They may tell you, “I can’t talk about that, or I won’t talk about that.” And at some point, you have to take them at their word. But I can cajole them a little bit.

For example, there’s a lawyer who I know, a very famous trial litigator, often in big, important trials defending people, and he has a policy of never speaking to the press. Never ever. Well, after I realized that, I understood it was important to get to know him. And I do know him now. And I consider him a professional friend, we’re not bosom buddies or anything, but he will at least chat with me. He doesn’t tell me anything I really need to know, but if you can talk to somebody like that, you can gauge what kind of situation he thinks he is in — is he winning or losing or whatever. If you can at least talk to him, you gain something.

When I was preparing for this interview, I tried to come up with questions that no one had ever asked you before, and I don’t know how good of a job I’ve done at that. But how do you go about that in your interviews with public figures that get talked to all the time? 

It really depends. I don’t really think that I’m gonna get something important out of a public figure that he or she doesn’t want to give me. I’ve got an interview scheduled, for example, with Justice Breyer about his book, in the fall. And of course I’m going to ask him why he decided not to retire. I’ll probably get some pablum answer, or I won’t get much of an answer, but you ask the questions that you think might make news, and that you’re actually curious about. And you have to prepare. Different people do different things. 

Justice Ginsburg, I’ve probably interviewed more than almost anybody else, and especially in the last years of her life, I was often the interviewer of choice. But I divined over years that springing an unexpected question didn’t produce anything. She got into trouble, twice that I know of. And both times I was not the reporter. One was when she was critical of Trump, several times. I never understood why she answered that question. I wouldn’t have asked it because I wouldn’t have thought she would answer it. And the second one was when Katie Couric asked her about Colin Kapernick, who first knelt in a football game at the playing of the national anthem. And Katie Couric asked her what she thought about that. I know Ruth well enough that I saw in her eyes that she didn’t have a clue what Katie Couric was asking her about, but she didn’t want to look stupid, and she said this minimalist, critical thing. She said, “Well, I think it’s inappropriate,” and whatever she said she then apologized for. Truth is, she had no idea what Katie Couric was asking her. 

But with her, I knew all the normal, good questions to ask her in a public interview in front of people, and that I could do with my eyes closed, hardly moving. I didn’t have to do any work with that. I just had to figure out what this audience would want to hear, and I knew which questions to ask, which stories to get her to tell. But if I wanted to get her to make news, or there was an occasion to make news, I told her what I was going to ask her in advance, because I’ve gotten a lot more that way. It took me really until the last three or four years of her life to figure it out. 

So to give you an example, I went with her to the premiere of RBG, the movie about her, at Sundance, and I interviewed her at Sundance in front of an audience. And it was at the height of the Me Too movement. I told her in advance that I was going to ask her whether she had had any experiences like those that were being talked about today. So she had time to think about it, and she made news that day because she said, “Of course I did, any woman my age or your age has had experiences like that.”

Then, she told this phenomenal story about a professor at Cornell. She was on scholarship and she was afraid that she wasn’t doing well enough in chemistry, so she went to her chemistry professor and asked him what she could do to prepare for the exam. And he said, “Well, I can give you a test exam, why don’t we try that?” And so she took the test exam. A few days later or a week later she took the final exam, and when she sat down, it was the same exam she had taken as the test exam. She looked so ferocious. She’s like 17 or 18 years old when this happened, and she said, “I knew what he wanted. I knew what he wanted.” And I’m sitting there, the interviewer, and I’m thinking to myself, “What would I have done? I would have just tried to stay away from this guy forever. I would have been afraid to even come in contact with him.” And she said, “I went to his office and I said, ‘How dare you! How dare you!” I said, “You must have at least done very well on the exam.” She said, “Well I made a few mistakes on purpose because I thought this was really unfair otherwise.” But with her, it was better to let her know in advance. With other people, you really do want to take advantage of the fact that you’re lucky enough to have scheduled an interview at a moment when something is going on that they can legitimately be asked about and respond to. 

Have you ever gotten something out of a justice or a public person that you don’t think they wanted to say or intended to say?

Not really. I think you have to offer them the opportunity. You look around and you see what’s going on, and you think, “What is it that people would want to know about what’s going on in the world that has anything to do with this person’s life — and whether they would be likely to answer you.” I think that once or twice Justice Scalia may have said something vaguely impolitic, but nothing that would get him into trouble. 

Interviews with Supreme Court justices are normally scheduled considerably in advance, so you know what they’re not going to answer. They’re not going to answer something that’s likely to come up before them. My policy is, don’t ask a question that is just going to tick them off. Try instead to get them to talk about things that might be newsworthy. In late 2019, I actually did an interview with RBG that I had asked her to do for the American College of Surgeons because I was giving their opening lecture at their convention. Because she had so much experience as a cancer patient, I wanted to talk about what she wanted and liked in a doctor when she was sick, and she answered very candidly. After I’d done all the things I had to do for this particular thing, I took advantage of the fact that I was there, and there were the beginnings of conversations about expanding the Court, changing the form of the Court, etc. I was pretty sure I knew what she would say, but she was even more emphatic than I expected in saying that she was opposed to those ideas because the minute you would change the number of justices or how justices are appointed, people would start to think of justices as just political figures. You would continually change the number, and the Court’s greatest currency, which is that people respect it as an independent institution, would be gone. That’s a really good answer.

You’ve said recently that you wished you could have tamed your tenacity a bit. When has that backfired for you?

It’s not that it’s backfired. I just thought that the only way to break through — it wasn’t even a glass ceiling, they were walls, and you couldn’t even see the rest. I thought the only way to do that was like a bulldozer. But in fact, I think that I could have been less aggressive and gotten the same results. I still would have had to be very tough and very unyielding. But I think that I thought the only way to get people to take me seriously was to be like a bulldog. And it wasn’t necessary all the time, and as I look back, a lot of big stories that I got were because sometimes people didn’t take me seriously and just blathered on, and said things they would never say to somebody that they thought was of consequence.

I sometimes feel that as a high school reporter, the only reason I get stories is because people don’t take me seriously. What’s an example of that happening to you?

I’ll tell you an inconsequential example. I was doing a story when I worked for the National Observer about lobbyists or companies paying for trips for members of Congress, and whether that was appropriate. The particular example I focused on, because it was iffy, was that Northwest Orient airlines had been awarded a new route — this is when airlines were very regulated — and they paid for all the members of the Senate and House Commerce Committee to fly the maiden trip in first class or business class with their spouses. There were a few senators who did not avail themselves of this opportunity — it must have been just the Senate, and maybe the leadership on the committee in the House. 

And the first person I talked to was then-Majority Leader Mike Mansfield. I said, “Are you going?” and he said, “No.” And I said, “Why not?” Mike’s answer was very taciturn, he said, “Don’t do that sort of thing.” Okay, that was good enough. And then there was a Republican senator from New Hampshire, who I called off the Senate floor and I said to him, “Are you going?” And he said, “No.” And I said, “Why?” and he said, “Oriental food gives me the trots.” The Observer ran a picture of him saying that with the quote. If he really thought I was important, he would have at least said, “That’s off the record,” but he didn’t. There were many more consequential things that people told me because I think they thought, “What does she know?” But those, I probably will be more circumspect about.

You used to cover everything related to justice and the law, even elections, for NPR. Now, you have other reporters like Carrie Johnson and Tamara Keith who do similar things. What advice have you given to these reporters?

Tam covers the White House, and Carrie covers the Justice Department. There’s no way in the modern world that I could cover all the things that I used to cover. When I started out at NPR, there was one program, it was All Things Considered, and it was an hour and a half. Now we have three major news programs a day, including the midday, which I do occasionally, but other people have to pitch in for me. We also then only had newscasts on the hour; now we have them on the half hour, and I don’t think in the beginning we had them all the way through the night. Now we have them 24/7. We have Morning Edition; we have morning programs on the weekend; we have digital; we have podcasts; we have social media. We have multitudes of platforms that we have to serve. And there’s just no way that one person can do that and have the number of things to cover that I used to cover. You simply have to have other people. And I don’t have to advise them about anything. We hired Carrie Johnson away from the Washington Post — I think I was somewhat instrumental in that — because she covered the Justice Department so well. She could teach me as much as I could teach her.

Have those reporters taught you anything about covering politics and justice? 

They’ve told me stuff that I didn’t know because they find out stuff I didn’t know. And it’s different, it’s always different. When I first covered the Justice Department, you could walk in, you didn’t have to check in with anybody, you could go to any office in the building. Now, just getting in the building takes 15 minutes of processing and security. So the only place I have at all carte blanche to walk in is the Supreme Court. 

Friday, July 2, 2021

by Elise Spenner

As I write this, I feel like nodding off to sleep with the weight of the past term. And yesterday was an especially long day. The court released two massive, ideologically-tilted opinions, one of which was a landmark voting rights case called Brnovich. Let’s take a look at what each justice did this term. 

Chief Justice Roberts:

Majority opinions: AFP v. Bonta; PennEast v. New Jersey; Cedar Point v. Hassid; Fulton v. Philadelphia; Torres v. Madrid; Federal Republic of Germany v. Phillip

The Chief dissented on his own for the FIRST time in Uzuegbunam v. Preczewski. In this case, an 8-1 majority ruled that plaintiffs can sue for nominal (or symbolic) damages, even if the alleged injury is no longer causing harm. According to Roberts, this ruling was akin to “turning judges into advice columnists,” and would encourage litigants “to fight over farthings.” He went so far as to cite our nation’s origins: “For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks.”

He also had an awkward concurrence in Lange v. California that felt more like a dissent. In hindsight, his sharp words in a relatively obscure case betrayed looming conflict between the justices. He mercilessly criticized the majority as “hopelessly indeterminate,” instituting a rule that is “famously difficult to apply,” and imposing a “regime,” while failing to “cite a single circumstance” from common law that supported its fuling. 

When social issues came before the Court in Fulton v. Philadelphia and California v. Texas, Roberts often brokered agreement between the Justices, forming tentative alliances between Trump appointees and stalwart liberals. The Chief’s coalition-building is undoubtedly impressive; this term is on track to feature the most unanimous opinions since 2016.

And then, of course, everything fell apart in July. Roberts certainly didn’t succeed at narrow nonpartisan compromise in Brnovich v. DNC. The Court eviscerated Section 2 of the Voting Rights Act with a snap of its conservative fingers. The Chief didn’t even chime in with an institutionally-minded concurrence; he just let Alito run away with the majority. Perhaps, all his energy was spent on AFP v. Bonta, where — joined by the other five conservative — Roberts struck down a California disclosure law that forced charitable organizations to reveal major donors to the Attorney General. He wrote, “The disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment, indiscriminately sweeping up the information of every major donor with reason to remain anonymous.”

Justice Thomas: 

Majority Opinions: Nestle v. Doe, Terry v. US, Guam v. US, Caniglia v. Strom, Uzuegbunam v. Preczewski, Brownback v. King, Tanzin v. Tanvir

This may have been a big term for all the justices. But I have to say, Justice Thomas really pulled out all the stops to surprise the followers of the Supreme Court. 

First of all, the famously taciturn justice actually spoke in oral argument. In every single case this term, he was an active participant, asking at least one question. Telephonic arguments forced the justices to abandon their traditional frenzied questioning for a more structured format, and this modification seemed to encourage the self-conscious Thomas to speak out. 

In what also seems like a first for the solidly conservative justice, he wrote a dissent joined by the three liberals in a decisive 5-4 ruling in TransUnion LLC v. Ramirez. He was also, shockingly, one of the seven justices that voted to uphold the Affordable Care Act for the third time, dismissing the case based on a lack of standing. Rather than join the dissent of Alito and Gorsuch, which criticized the Court’s three ACA rescues, he wrote a simple concurrence that agreed with the majority — while of course emphasizing that NFIB v. Sebelius and King v. Burwell were decided improperly. He even agreed with the liberals in Borden v. United States, sacrificing his ideal of overruling Johnson to support the majority’s opinion. 

Not only did Justice Thomas talk a lot this term; he also wrote frequently. He wrote seven majority opinions, 11 concurrences, and six dissents. Though Thomas wasn’t assigned any of the most-watched opinions of the term, many of his opinions were highly consequential. A few with the most significance include Terry v. US, Caniglia v. Strom, and Uzuegbunam v. Preczewski.

Justice Breyer:

Majority Opinions: Mahanoy v. BL, California v. Texas, US v. Cooley, AMG v. FTC, Google v. Oracle, Carney v. Adams

There were a lot of questions buzzing about whether Justice Breyer would retire at the end of this term to ensure that a Democratic president could appoint his successor. Suffice it to say, Breyer wasn’t keen on this idea. This term, especially, he seemed to emphasize the importance of a non-partisan, stable judiciary, vocally opposing the possibility of expanding the Supreme Court. 

Justice Breyer wrote two of the highest profile opinions of the term: Mahanoy v. BL and California v. Texas. In Mahanoy, Breyer did exactly what he intended to do — avoid drawing a hard standard, but provide guidance and guidelines to the lower courts. Breyer did a classic job of combining pragmatism with an interpretation of case law. He set clear guidelines for the lower courts, but avoided a hard rule that distinguished on and off-campus speech. And he seemed to be enjoying himself while writing it. In the middle of the opinion, his literary erudition came out when he quoted the “well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it’ and added in the footnotes: “Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.”

In the ACA case, Breyer’s opinion was relatively straightforward, establishing that the plaintiffs had failed to prove standing for a variety of reasons. It was simple, effective, concise, and persuasive. 

On a side note, Justice Breyer spoke to students through the National Constitution Center, discussing his intrinsic optimism about the future of the Court and the country. He also mentioned that he participates in “fake bike-riding” (Peloton, anyone?). 

Justice Alito:

Majority Opinions: Brnovich v. DNC, Johnson v. Guzman Chavez, Collins v. Yellen, San Antonio v. Hotels.com, Chicago v. Fulton, US v. Briggs

Justice Alito had a prolific term. He persuaded the whole conservative majority to join an opinion that weakened the remainder of the Voting Rights Act (Section 2, which outlaws voting discrimination based on race or minority status) and established exacting “guideposts” for lower courts that would save even clearly discriminatory voting rules.

Then again, Alito probably spent more time than he would have wanted in dissent, or bitter concurrence. Most noticeably, Alito wrote a concurrence in Fulton v.  Philadelphia that was as acerbic as a dissent. At 77 pages, it may well have been an impassioned majority opinion that splintered into a begrudging concurrence. Either way, Alito was frustrated that the Court refused to overrule Employment Division v. Smith and its general applicability rule. 

In California v. Texas, Alito grew angry with his conservative colleagues who again had voted to uphold the Affordable Care Act. Alito, along with Gorsuch, would have ruled the individual mandate unconstitutional and struck down the rest of the law along with it. No other justices were willing to go so far, at least not in writing or in the case at hand. 

While Alito didn’t write the most opinions this term, his presence was widely felt on the Court in lengthy diatribes, sharp concurrences, and landmark majorities. 

Justice Sotomayor: 

Majority Opinions: Yellen v. Confederated Tribes, US v. Palomar Santiago, Carr v. Saul, Facebook v. Duguid, Salinas v. Railroad Retirement, Rutledge v. Pharmaceutical

Justice Sotomayor is an incredibly strong writer, but her best work comes when she leaves behind legal jargon to showcase the profound, deeply personal impact of the Court’s decisions. 

In United States v. Higgs, she laid bare the Trump administration’s spree of federal executions. As Linda Greenhouse notes, she even recited the names of the 13 people executed. “To put that in historical context,” Sotomayor wrote, “the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.”

In FDA v. American College of Obstetricians and Gynecologists (which I cover in more detail here) the court upheld an in-person requirement for abortion-inducing medication. In dissent, Sotomayor highlighted the disproportionate impact that such regulations have on minority and low-income women. Women of color account for more than half of all abortions, yet ”COVID–19’s mortality rate is three times higher for Black and Hispanic individuals than non-Hispanic White individuals.”

In Terry v. United States, Justice Sotomayor slammed Justice Thomas’ history of crack-cocaine sentencing for being “an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio.” She criticized Justice Thomas and his argument that Black elected officials and lobbyists had supported the disparities for public safety reasons. She filled in the gaps in his reasoning, reminding the Court that Black “leaders ‘also called for federal investment in longer-term, root-cause solutions such as welfare, education, and job training programs’” — proposals that were completely overlooked. And once it became blatantly clear that the 100-to-1 ratio was disproportionately impacting Black populations, “‘the [Congressional Black Caucus] came together in unanimous and increasingly vocal opposition to the law.’” 

Justice Kagan:

Majority Opinions: Minerva v. Hologic, Lange v. California, Borden v. US, Sanchez v. Mayoras, CIC Services v. IRS, Ford Motor v. Montana

It’s a few weeks old, but I got a good laugh — and a bit of a scare — out of Mark Stern’s Slate article reviewing Justice Kagan’s responses of Justice Kavanaugh: Why Does Elena Kagan Keep Roasting Brett Kavanaugh? But Stern is absolutely right. This term, Kagan’s pithy, hypothetical and anecdote-filled writing rose to the challenge of rebutting a 6-3 supermajority. 

Let’s take a look at some of Kagan’s most significant work from this term:

Borden v. United States, which was the impetus for the Slate article mentioned above, hinged on a rather obscure aspect of the Armed Career Criminals Act. In the case, the justices ruled that reckless conduct should not be considered a “violent felony” for sentencing purposes. But Kagan took the opportunity to tear Kavanaugh’s dissent to pieces, ridiculing his reasoning at every turn. When Kavanaugh went through a “complicated counting exercise” to tally up discrepancies and disagreements in the majority, Kagan scorned Kavanaugh’s attempt “to show how unfair it is that the dissent’s view has not prevailed here.” 

Kagan’s linguistic flair took on a far more sobering tenor in religious liberty cases on the shadow docket. In South Bay Penecostal Church v. Newsom, she criticized the Court for abandoning Smith by “treating unlike cases, not like ones, equivalently,” and “foray[ing] into armchair epidemiology.” Because the majority had forced “science-based policy [to] yield to judicial edict,” Kagan warned that “the Court injects uncertainty into an area where uncertainty has human costs.”

And yesterday, her ruthless 40-page dissent in Brnovich was Elena Kagan at her best, laying bare the impact of the majority’s ruling on voting rights. She attacked the majority for its opinion, writing that: 

  • It exists in “a law-free zone,” leaving the language of the statue “almost wholly behind.”
  • It “remake[s] Section 2,” cutting it “down to its own preferred size” and ignoring “what Congress wanted.”
  • It “creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s.”
  • It “has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”

Justice Gorsuch:

Majority Opinions: HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn, NCAA v. Alston, Garland v. Ming Dai, BP v. Baltimore, Niz-Chavez v. Garland, Pereida v. Wilkinson

The Court relied heavily on textual interpretation this term, with countless cases turning on Black’s law dictionary definitions. How could Justice Gorsuch not be pleased? 

He clearly separated himself from the other two Trump appointees — Justices Barrett and Kavanaugh — by siding with the most conservative duo, Justices Alito and Thomas. This trio caused the 3-3-3 split that so much of Supreme Court coverage has mentioned. 

Justice Gorsuch got his blockbuster majority opinion in NCAA v. Alston, where he refused to allow the NCAA to block paid educational benefits just because its athletes are amateurs. This opinion even let him work in a history lesson about the Harvard-Yale boat race, which exemplified the sponsorships and paychecks that have permeated college athletics from the beginning.

Gorsuch also advocated strongly for religious liberty throughout the term, especially on the shadow docket. In Roman Catholic Diocese v. Cuomo and Tandon v. Newsom, he found sympathy on the Court for his claim that “in far too many places, for far too long, our first freedom has fallen on deaf ears.” His view that COVID-19 restrictions disproportionately hindered religious practice led the Court to enjoin many public health regulations. As Gorsuch emphasized, “if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

Justice Kavanaugh:

Majority Opinions: TransUnion LLC v. Ramirez, Greer v. US, Edwards v. Vannoy, Jones v. Mississippi, FCC v. Prometheus, Texas v. New Mexico

I’m guessing that Justice Kavanaugh feels good right about now. He was in the majority more than any other justice, firmly establishing himself as the new-median vote on a heavily conservative court. He has thus wielded immense power over his colleagues. He joined forces with the Chief, agreeing with Roberts 94% of the time. Though they quieted Democartic pundits by joining a few opinions with the liberal trio, Kavanaugh got his way when it mattered: restricting the Voting Rights Act, expanding religious liberty, striking down disclosure requirements, and regulating unions. 

It was just his third term on the Court, but Kavanaugh wrote significant opinions in TransUnion v. Ramirez and Jones v. Mississippi, as well as a semi-major opinion in Uzuegbunam v. Preczewski. In Jones v. Mississippi, he evaded the precedents of Miller and Montgomery to find that sentencers must not make a finding of permanent incorrigibility when sentencing juvenile offenders to life without parole.

Notably, Kavanaugh only dissented twice this term — in Borden and in Niz-Chavez v. Garland.  Neither of these cases were major decisions, and outside of the two dissents he wrote, Kavanaugh was concurring in the majority for every other case this term. One of his most read concurrences was in NCAA v. Alston, where he established his skepticism of all restrictions on compensation for athletes. Despite his sympathy for the place of collegiate athletics in the “fabric of America,” Kavanaugh couldn’t uphold the paradox that businesses can agree “not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”

Justice Barrett:

Majority Opinions: Goldman Sachs v. Arkansas Teacher, Van Buren v. US, Florida v. Georgia, US Fish and Wildlife v. Sierra Club

Justice Barrett, the novice on the Court, wooed Appellate Twitter with her crisp, concise, and clear summaries at the beginning of every dissent. They often served to reestablish the question that the case was presenting. 

She also surprised a few people, I think, with her tendency toward reasonable compromise rather than outright conservative activism. This is not to say that she was a moderate or swing vote; she solidly favored and abided by coservative principles. I only mean that she was a bit more nuanced than some pundits anticipated. Then again, she sided with the convservative majority in almost every major case to come before the court: Cedar Point, Brnovich, AFP, and TransUnion are cases in point. She also had a quite significant dissent in PennEast, sparring with the Chief about the historical and constitutional weight of federal eminent domain. 

Altogether it was surprising to see Barrett fold to the compromise majority in the ACA case and Fulton, but she generally stuck with Kavanaugh and the Chief in major rulings.