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Tuesday, June 14, 2005

Greetings, and some thoughts on Supreme Court advocacy

I'm grateful for the invitation to join the PrawfsBlawg crew for the next little while.  I have no particular plan for what to blog about, but I imagine I'll offer some thoughts on trends in legal scholarship that interest me, and, since it's the season, on the Supreme Court's end-of-Term activities.

Let me begin with something relating to the latter.  Thousands of keystrokes have already been spent on last week's decision in Raich, and I imagine this week will see considerable commentary on today's decision in Miller-El (a Batson case that produced a 6-3 win for the defendant, thus vacating his murder conviction and death sentence).  For me, taking the two cases together provides an opportunity to consider an issue that might not get all that much attention:  choice of lead counsel.

Raich, as everyone knows, was argued by BU lawprof Randy Barnett.  I believe it was his first Supreme Court argument, though he is a very prominent legal scholar.  He is particularly well known these days on account of his new book "Restoring the Lost Constitution," which advances a libertarian reading of the Constitution.  (Disclosure:  I recently published a fairly critical review of the book, to which Barnett has replied.)  Whatever one thinks about the book, it clearly confirms Barnett as an expert on the Commerce Clause, which is what Raich was about.  But the book also makes it clear what Barnett thinks about the Supreme Court's work product in that and other areas.

He opens his concluding chapter, for example, with the following:

The way the Constitution has been interpreted over the past seventy years has meant that, with some exceptions, the Necessary and Proper Clause has no justiciable meaning, the Privileges or Immunities Clause has no justiciable meaning, the Ninth Amendment has no justiciable meaning, the Tenth Amendment has no justiciable meaning, the Commerce Clause has no justiciable meaning, and the unenumerated police power of the states has no limit.  To this list could be added the Second Amendment and the Takings Clause of the Fifth Amendment as well.  Can you see a pattern here?  Do you not sense a systematic skewing of the Constitution?  Can we abandon what the Constitution says and still claim credibly to follow it?

A footnote after the words "with some exceptions" notes that "[t]he Rehnquist Court has put content back into some of these provisions and been savaged for its efforts by academics."  Even with that qualification, however, it's clear from this passage and the rest of the book that Barnett thinks the Supreme Court's doctrine is deeply flawed in many areas, including the Commerce Clause.

Miller-El, on the other hand, was argued by Seth Waxman, who was Solicitor General under President Clinton and is now in private practice and one of the leading members of the Supreme Court bar.  (Disclosure:  I used to work with Waxman, and I helped write one of the briefs at an earlier stage of the Miller-El litigation.)  Waxman has argued many Supreme Court cases involving many different issues, winning some and losing others.  It's probably fair to say that his substantive expertise in certain areas of constitutional law is not as deep as that of an academic whose scholarship focuses on those areas.  As an advocate, though, he has by all accounts earned the Court's respect and trust. 

Raich, as everyone now knows, went against Barnett.  And Miller-El went Waxman's way. I don't, though, mean to suggest that the result in either case would necessarily have been different had the lead counsel changed.  In particular, I think Raich was probably unwinnable no matter who stood in Barnett's shoes.

But suppose you have some future case that you think will likely be close, and suppose further that you think oral argument could actually affect the outcome in the case.  If you could choose anyone for lead counsel, would it be a well-recognized scholar with deep expertise in, and a very distinctive view on, the relevant legal issue?  Or would it be a veteran Supreme Court advocate who has argued all manner of cases?  It's a tradeoff, to be sure, and I think there's probably no single, one-size-fits-all answer.  But my tentative sense is that I would be worried about going with anyone likely to be seen by the Court as a "movementarian" -- that is, as a person whose advocacy in the case might be perceived by the Court (rightly or wrongly) as an extension of a pre-determined political, ideological, or theoretical set of commitments. 

If oral argument counts for anything in close cases, I think it may be in the opportunity it provides to try and persuade the middle of the Court that the position for which one is arguing is perfectly sensible, practical, moderate, and wise.  The advocate should be able to stand before the Court and say (but not in so many words), "Trust me.  My position is not only legally correct, it's also practical.  It's not only analytically sound, it's prudent for the Court as an institution."  Especially given the current Court's personnel, I think the advocates best situated to pull this off are people not already associated with a distinctive, strident view on the legal issues in the case. 

So, for example, I would be worried about relying on a very partisan opponent of the death penalty in a capital case.  This is not to say I would rule it out; it's just to say I would at least want to ask myself whether an appearance of partisanship might affect the advocate's credibility with the Kennedys and O'Connors of the Court.  Similarly, if I were on the pro-religion side of an Establishment Clause or Free Exercise Clause case, I would be worried about going with anyone already associated with the "extreme right" on those issues.  And in a potentially close Commerce Clause case, I would be worried about going with someone whose scholarship charges the Court with "systematic[ally] skewing . . . the Constitution" and "abandon[ing] what the Constitution says."   

To be clear, I am not suggesting that Barnett's brief or argument in Raich were in any way substantively infirm.  I thought the brief was very good.  It made a strong argument based on the Court's precedents.  (I'm not persuaded by the argument, but that's neither here nor there.)  From the reports I read, that was Barnett's approach during the oral argument too.  So there's no substantive criticism here.  Rather, it's a matter of tactics.  Simply put, if members of the Court were familiar with Barnett's scholarly writing (I don't know if they were), his very pointed criticisms of the Court's entire Commerce Clause jurisprudence might have made some of them less inclined to trust him when he pressed arguments in reliance on that very jurisprudence. 

Maybe this shouldn't be so.  Maybe all members of the Court should be affected only by the substantive quality of the arguments they hear, not the identity of the advocates mounting the arguments.  Maybe.  But were I choosing a lead counsel in a potentially close case, I would worry that such things really could make a difference.

For that reason, it seems to me that going with an advocate like Seth Waxman to argue on behalf of a death row inmate is a wise move, precisely because the middle of the Court is not likely to associate him with a strident, pre-determined point of view on the issue (even though he has now argued multiple death penalty cases before the Court).  While I'm dropping names, I'll say that, for essentially the same reasons, I thought it was a brilliant decision to have Maureen Mahoney argue on behalf of the University of Michigan Law School in Grutter v. Bollinger, the affirmative action case from two Terms ago.  And I think it was smart to have Richard Taranto argue the Grokster file-sharing case earlier this Term.  I have no particular reason to think Miller-El or Grutter would have come out differently without Waxman or Mahoney, and I have no idea whether Taranto will win Grokster.  But it seems to me that in each of these cases, the choice of lead counsel likely maximized the odds of persuading the middle of the Court.    


Posted by Trevor Morrison on June 14, 2005 at 08:44 AM in Housekeeping, Law and Politics | Permalink


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You missed the strongest evidence for this argument: the experience of Larry Lessig in Eldred. After losing the case, Lessig said that his case needed "a lawyer not a scholar." See http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.html.

Posted by: BuddingProf | Jun 14, 2005 11:01:40 AM


Looking beyond Raich and Miller-El, I think I would draw the slightly different lesson that law professors often don't make very good Supreme Court advocates. Seth Waxman is a terrific Supreme Court lawyer because he knows the Court and has a tremendous ability to look at a complicated case and find a single common-sense theory behind his client. Law professors arguing cases in their core areas tend to be more wedded to their academic pre-commitments, and as a result may miss opportunities to win on other theories less theoretically pure but more likely to command a majority of the Court. This is related to your point, but somewhat different, in that I think the issue is less the identity of the lawyer than the kinds of arguments he or she makes.

Looking forward to more of your posts.

Posted by: Orin Kerr | Jun 14, 2005 11:25:57 AM

With respect, I don't think the examples given are supportive of Prof. Morrison's conclusion.

Randy Barnett got three votes! Three votes for what was in essence (despite Justice O'Connor's protests to the contrary) the overruling of Wickard v. Filburn. That ain't bad. It was a much closer outcome than I and a lot of fans of federalism expected -- I derived nearly as much consolation from Barnett's three votes as I did from Justice Thomas's excellent dissent in Raich.

You may recall that the guys at SCOTUSBlog were confidently predicting a 9-0 or 8-1 result in Raich for months in advance of the decision. (Then after the case came down, they tried to spin it as if a 6-3 loss for Ms. Raich was, somehow, even more of a repudiation of the New Federalism than a unanimous loss would have been. I have enormous respect for the SCOTUSBlog bloggers, but that was not very persuasive.)

Had Prof. Barnett prevailed, Raich would have prompted the lower courts to start invalidating significant segments of federal criminal law. Federal drug possession, gun, child porn laws -- the Hobbs Act, which the Fifth Circuit twice came within a hair's breadth of holding unconstitutional as applied in recent years -- all would have been placed in jeopardy, especially around the edges. And Barnett got three votes to do that.

As for Miller-El, it seems to me that the principal reason Mr. Waxman got six votes is that the facts in his client's case were very favorable to his position. To get the flavor, Justice Souter began his analysis for the majority in Miller-El by observing: "The numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-member venire panel for Miller-El's trial, only 1 served."

I think we can agree that this is a rather stronger position for a Supreme Court litigator to stand in than Prof. Barnett's position, which required him to ask the Court to effectively overrule a 63-year-old landmark case featured in every student's Constitutional Law casebook. Yet Barnett persuaded a third of the Court to do this.

It seems no more reasonable to conclude that Raich casts doubt on the value of having a dedicated student of the Commerce Clause argue a major Commerce Clause case, than it would be reasonable to argue that Mr. Waxman was a weak advocate in this Term's Miller-El case, since he failed to dislodge any of the three conservative Justices from their dissenting position -- as he did manage to do in Mr. Miller-El's last visit to the Court in 2003 (Miller-El v. Cockrell, ), where Miller-El prevailed by a margin of 8 to 1.

(I was interested to notice, when looking at the earlier Miller-El case, that Prof. Morrison was on the briefs with Mr. Waxman for the petitioner, Miller-El. That must have been very rewarding work; I certainly agree that Mr. Miller-El was entitled to a new trial.)

The point is, Miller-El and Raich are apple and orange. Different cases presenting differing legal issues unsurprisingly tend to lead to different results by different margins. If Prof. Morrison's claim is sound, he has not established it here.

Posted by: Plainsman | Jun 14, 2005 12:26:42 PM


How do you respond to the Lessig example?

Posted by: BuddingProf | Jun 14, 2005 12:33:56 PM

First off, let my say that my own mention of Prof. Morrison's involvement in Miller-El in my previous comment was otiose -- there it is, he noted it right there in his post. I just missed it.

Now, Prof. Lessig in Eldred. I thought he should have won too!

I agree that Eldred is a better example than Raich. But Lessig's position was also an "uphill" one -- asking the Court to start superintending legislative extensions of copyright in a way it had never done before.

The rock-bottom intuition is that there probably were not enough votes on the Court for him to win based simply on the obvious policy grounds -- i.e., look how unfair it is to allow big businesses to manipulate Congress so they can engross all of this wealth and impoverish the public domain. So Lessig had to figure out what to add to the mix, and he came up with textualism/originalism.

I think that was basically sound. If there's a place where Lessig tripped up it was in trying to use Lopez as an ultimatum to the Court. Such an (unduly) controversial case. Perhaps it would have been better to just

I have tremendous sympathy for Lessig, because Lopez is exactly the lens through which I viewed Eldred. It seemed so obvious! So elegant! Perhaps the grain of truth here is not Prof. Morrison's point that academics run into trouble because the Court perceives them as "movementarians" associated with extreme or critical views -- but just because, being intellectuals, they are a lot more likely to be impressed with elegant arguments than the average working lawyer -- or appellate court. They are more likely to "get cute," which often doesn't work on courts.

In contrast, I see no evidence that Barnett "got cute" in Raich. Notwithstanding his past writings on the Commerce Clause (which I warmly endorse) his approach to the litigation was very judicious. And he gained three votes for what, to repeat, would have been a revolutionary result in practical effect. (An intensely beneficial revolution, one born of fidelity to the Constitution, but a revolution nonetheless.)

Is that a fair answer?

Posted by: Plainsman | Jun 14, 2005 1:06:58 PM

Fifth paragraph from the top is incomplete, in my last comment above:

I meant to write: "Perhaps it would have been better to just give an originalist/textualist account of the Copyright Clause without explicitly tying it into the (valid, but controversial) theory of limited and enumerated powers in Lopez. To stick to an 'incompletely theorized' argument, in the useful phrase of Cass Sunstein."

If so, then again we run into the temperamental difference between academics and working lawyers that is relevant to Prof. Morrison's claim. Most academics and academic types instinctively dislike incompletely theorized arguments and rationales. However, they must learn to overcome this reluctance when they serve as advocates. Under present conditions, incompletely theorized arguments are strategically indispensable to the appellate litigator.

But it's hard!

(I think Grant Gilmore wrote that in Heaven, there will be no law. In Valhalla, all legal arguments and court decisions will be completely theorized.)

Posted by: Plainsman | Jun 14, 2005 1:20:53 PM

Sorry, just one more thought. The general type of strategy Lessig was following -- starting with a result that is attractive to some or all of the liberal Justices on policy grounds, and then trying to pick up one or more of the conservative Justices on textual or historical grounds -- is not a bad strategy to use on the contemporary Supreme Court, though it seems to succeed better in criminal cases than in civil matters.

Anyway, it sometimes works. That's how we got Apprendi and Booker, and Kyllo. And it was surely part of the dynamic behind Crawford.

Posted by: Plainsman | Jun 14, 2005 1:32:36 PM


Nice to have you blogging. Here's my question: how do you explain the phenomenon of Jeffrey L. Fisher, the Seattle attorney who argued and won two of the biggest criminal Supreme Court cases in the past two years: Crawford v. Washington and Blakely v. Washington ? Not only had he never argued a case in front of the Supreme Court before, but he had only been practicing a couple of years! Moreover, Crawford was a 9-0 decision. Surely Fisher had neither the grounded experience of Waxman or the academic depth of Lessig/Barnett. Yet he won two groundbreaking criminal cases. Just a fluke?


Posted by: Laura | Jun 14, 2005 4:25:27 PM

The biggest reason to have a Supreme Court specialist -- not a subject-matter specialist -- is to get cert. to begin with. That's where the difference lies, more so than the merits, in many cases. On the hot-button issues that the Court eventually HAS to decide, that may not matter as much. But if your client has a case that needs the extra oomph to get in, of the client wants THEIR case to get in NOW, as opposed to another vehicle addressing the issue in three years, then a Waxman or Phillips is the way to go.

Another question is whether such experts must be USSC clerks. It's the way the world seems to be headed. Note that the relative "newby" Fisher, who did Crawford and Blakely, was a USSC clerk, I think (too darn lazy to Google). So the question is whether there's much hope for the rest of us . . . (Ted Olson was not a clerk! Neither was Goldstein! Woo hoo!)

Posted by: just me | Jun 14, 2005 5:57:57 PM

neither was Seth Waxman...nor did he clerk for an appellate judge

Posted by: aslanfan | Jun 14, 2005 7:10:33 PM

Hi Laura,

Jeff Fisher is an interesting case. I don't know that I have any particular explanation for his success, other than the obvious fact that he is evidently a very, very good lawyer, and that the Court was probably already inclining in the direction of the outcomes it reached in Crawford and (especially) Blakely. Beyond that, I would note that although Fisher doesn't have the profile of leading Supreme Court advocates like Waxman, Phillips, Olson, Dellinger, et al, he also, as far as I know, isn't saddled with a reputation for pushing any kind of radical, beyond-the-mainstream view of constitutional criminal procedure. So that in sense, he does not raise the concerns I identified in my original post.

Somewhat relatedly, others have raised the question whether it's important that advocates before the Court be former Supreme Court clerks. My answer is no. I clerked at the Court, and it was an amazing experience. But I don't think clerking is a requirement for being an effective Supreme Court advocate. Clerking can certainly give you insight into the inner workings of the Court, but (1) those processes change over time, and by the time most former clerks reach the age at which they could become true leaders of the Supreme Court bar, much may have changed at the Court; and (2) many top Supreme Court advocates today did not clerk at the Court, which shows, among other things, that it's possible to learn a lot about the Court without ever clerking there.


Posted by: Trevor Morrison | Jun 14, 2005 8:11:15 PM

From the other side, I have to agree with the folks who say that Randy Barnett did an amazing job getting 3 votes in Raich. It's hard to imagine anyone doing any better.

I'm also skeptical of the idea that he argued the case in some sort of pie-in-the-sky academic way (though I haven't studied the argument transcripts carefully). I think that he had an unsolvable doctrinal problem--there was no principled way to define the category at issue as "intrastate personal cultivation for medical purposes" rather than as "intrastate personal cultivation." Knowing that this was his biggest doctrinal stumbling block, he threw all sorts of theories at the wall as to why the narrower category was the appropriate one hoping that one would stick and largely without regard to their consistency with each other or with his academic work. And, when that issue came up, he tried to change the subject as fast and as skillfully as possible. He was well aware that this was his biggest stumbling block.

And he was right. On my reading of the opinions, he lost the votes of those sympathetic to medical marijuana and to federal power on that category issue. I can't imagine that Seth Waxman or Carter Phillips or John Roberts would have done any better on this dispositive issue.

Posted by: Andy Siegel | Jun 15, 2005 9:48:29 AM

Just to add -- the U. of Texas Capital Punishment Clinic won two cases at the S/C in the 2003-04 term, and I believe those cases were argued by Professor Jordan Steiker and Rob Owen, who teaches the clinic. Prof. Steiker is a full-time academic, although Rob also does capital punishment defense work in addition to his position in the clinic. (I took the clinic from both of these great teachers in its first year, 1991, and I had Prof. Steiker for Con Law.)

Posted by: Christine Hurt | Jun 15, 2005 10:30:43 PM

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