Appellate lessons from U.S. Supreme Court blockbusters

Two veteran appellate litigators present good examples

By Kimberly Atkins
The Daily Record Newswire
BOSTON — The U.S. Supreme Court has kicked off its Oct. 2012 term, but lawyers are still reflecting on the prior term, which is regarded as one for the history books.

That is largely because of two high-profile rulings from the justices: one upholding most of the federal health care law, and the other striking down all but one provision of Arizona’s controversial immigration law.

And the cases gave those lucky enough to be present during oral arguments — and those listening to the audio recordings after the arguments — a chance to see appellate advocacy at its highest level. But are there tips that can be learned from the oral arguments of Solicitor General Donald B. Verrilli, Jr. and Paul Clement, who argued in both cases?

Yes and no, Supreme Court experts say.

Veteran appellate litigators like Verrilli and Clement provide good examples of well-prepared oral advocates in action, said Andrew J. Pincus, a partner in the Washington office of Mayer Brown. Attorneys arguing before the Supreme Court have to be ready for anything, he said.

“You have to prepare for this whole universe of questions,” Pincus said. “And [the justices] asked some infinitesimal portion, because there’s only 30 minutes.”

But others say the blockbuster cases weren’t necessarily won or lost on oral arguments.

“Oral arguments are very important. But I don’t think the government won the taxing power argument based on anything Don Verrilli said at oral argument,” said Lisa Blatt, who heads Arnold & Porter’s Appellate and Supreme Court practice in Washington.

Still, there are principles that can aid other appellate advocates:

• Know your court  

Knowing the kinds of questions to expect — including which justices you will have to convince and which justices you can never convince — is a key skill Supreme Court litigators possess.

“Your goal in preparing is to anticipate anything that they might ask,” said Pincus.

For example, it seemed clear that Verrilli knew going into arguments in the health care case that there were some justices that he would get in his column, such as Justice Antonin G. Scalia. Even when Scalia showed skepticism during Verrilli’s taxing power argument, which would turn out to be the winner in the case, Verrilli seemed to anticipate that and take it in stride.

“You’re saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn’t matter,” Scalia said. “This is a tax and the federal government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn’t buy health insurance at a certain age will be taxed so much money, right?”

“It used its powers together to solve the problem of the market not providing affordable coverage,” Verrilli said.

“Yes, but you didn’t need that,” Scalia pressed. “You didn’t need that. If it’s a tax [then] raising money is enough.”

“It is justifiable under its tax power,” Verrilli said, keeping it simple.

“Okay,” Scalia said before uttering his favorite phrase in response to arguments that fail to convince him: “Extraordinary.”

• Know your case

“You really don’t have time to think up an answer on the spot,” Pincus said, emphasizing the importance of knowing the case and the factual record.
“Ask any advocate and they will tell you they spend a lot of time knowing the record cold because you don’t want to not be able to answer a question.”

In the Arizona case, which involved four complicated provisions of a state statute, Paul Clement showed a strong knowledge of the case, which helped him anticipate the justices’ concerns.

Several justices, including Justice Stephen G. Breyer, voiced concerns that the so-called “show me your papers” provision of the Arizona law could lead to people being detained for an indeterminate period of time.

“Can I make the following statement in the opinion, and you will say that’s okay?” Breyer began. “Imagine [the opinion says,] ‘We interpret Section 2(B) as not authorizing or requiring the detention of any individual under 2(B), either at the stop or in prison, for a significantly longer period of time
than that person would have been detained in the absence of 2(B). Can I make that statement in an opinion, and you’ll say, ‘That’s right’?”

“I don’t think you can say just that,” Clement said.

“No?” Breyer said.

“I think you can say something similar, though,” Clement said. “I think you probably could say that, ‘look, this is a facial challenge. The statute’s never gone into effect. We don’t anticipate that Section 2(B) would elongate, in a significant number of cases, the detention or the arrest.’ I think you could say that.”

The Court ultimately upheld that provision on the facial challenge, noting that cases of actual misuse of the statute could be brought later.
In the health care case, Verrilli seemed prepared when faced with the factual dilemma of arguing that the word “tax” has a meaning that seemed to contradict the president’s own interpretation.

“Is it a tax or not a tax?” Scalia asked. “[T]he president didn’t think it was.”

“The president said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance,” Verrilli said. “I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.”

The Court, of course, went on to uphold the health care law as a constitutional exercise of Congress’s power to tax.

• Know your limitations

Not all of Verrilli’s points were artfully made. At one point while trying to make the argument that the health care mandate was permitted under Congress’s tax power, he seemed to violate one of the rules set forth by Scalia in his book “Making Your Case: the Art of Persuading Judges.” In the chapter on oral arguments, Scalia admonishes: “Never give a categorical answer you are unsure of.”

“Why didn’t Congress call it a tax, then?” Chief Justice John G. Roberts, Jr. asked during oral arguments. “You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?”

“They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives,” Verrilli said, apparently winging it. “But it is in the Internal Revenue Code, it is collected by the IRS on April 15.”

“Well, that’s the reason,” Roberts said with an air of incredulity. “They thought it might be more effective if they called it a penalty.”

“Well, I — you know,” Verrilli said, backtracking. “I don’t — there is nothing that I know of that illuminates that.”

• Focus on the brief

As important as the oral argument is, it pales in comparison to the weight judges give arguments made in the brief, and any lawyer’s preparation should reflect that, experts say.

Plus, Pincus notes, by preparing well at the briefing stage, lawyers automatically begin preparing for oral arguments.

“I have thought about the legal position in terms of how it affects the kinds of hypotheticals that might get asked at the brief-writing stage,” Pincus said. “If I haven’t, I haven’t done my job.”

The same tip is underscored in a 1997 article in “School Law in Review” by an attorney who at the time was working in the Washington office of Hogan & Hartson: John G. Roberts, Jr.

“Oral argument may be the most exciting and visible part of the appellate process, and judges — who ought to know — are always expounding on how important it is, but no doubt the written brief typically plays a greater role in shaping the decision,” wrote the future chief justice.

However, another tip offered by Roberts may undermine the tips both he and Scalia offered in their written works just a bit: “Be particularly skeptical of advice on how to argue an appeal from appellate judges,” Roberts wrote.