Legal Studies Forum
Volume 27, Number 1 (2003)
reprinted by permission Legal Studies Forum
BEFORE THE SUPREME COURT
T.S. KERRIGAN*
Bundled up in a scarf and overcoat as I walked
along Capitol Hill early one February Monday morning from my hotel–Washington,
D.C. is cold this time of year and there was a snow on the ground–mentally
I went over my notes one more time. I wondered whether all the weeks of
study and research would be sufficient to prepare me for the court appearance,
now just hours away, that was unquestionably to be one of the most important
arguments in my legal career.
I was about to do something few lawyers get
to do, I was going to argue before the United States Supreme Court. The
case, Arthur S. Lucan v. G&G Fire Sprinklers, Inc., involved
the constitutionality of a key provision of the California Prevailing Wage
law, a statute enacted during the depths of the Great Depression to protect
the livelihood of workers on public works projects. The provision being
challenged allowed the State to withhold money, without prior notice or
a hearing, from errant prime contractors who did not pay employees prevailing
wages. The challenge to the statute was on the grounds that it violated
a subcontractor’s due process rights guaranteed by the Fourteenth Amendment.
At risk was not only the California law but similar statutes in other states
like New York, Illinois, Michigan, and Pennsylvania.
This was to be the final battle in a legal
struggle that had started in 1995 in the United States District Court in
Los Angeles, when Federal Judge Manuel Real had dismantled the entire statutory
scheme, finding it unconstitutional. During the five years in which the
case had made its way through the appellate courts, I had made three separate
appearances arguing on behalf of the State and the statute while the Court
of Appeals for the Ninth Circuit rendered three separate opinions in the
case. I had, for the most part, been on the losing side. This morning,
in the highest court in the nation, I would represent California’s last
chance to save the statute. My case was the second one on the Court’s calendar
that morning and I would be the first attorney on my side of the case to
argue.
I entered the Maryland Avenue side entrance
of the Supreme Court Building and went to the cafeteria on the lower floor.
I had gone early that morning to eat breakfast there, a tradition, I am
told, for those who will argue before the court. Though the Corinthian
white marble structure with its many portraits of former justices is not
an old one by Washington standards, having been built in 1932, it is heavy
with
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tradition. At 9 A.M. on the morning of the argument I was to report
to the Lawyers’ Lounge where attorneys having cases on calendar are given
last minute reminders and a list of do’s and don’ts (most of that had already
been drummed into my head during the proceeding weeks). You address the
Chief Justice as “Mr. Chief Justice.” Don’t use “Mr.” in referring to any
of the other justices, but simply call them “Justice . . . .” or “Your
Honor.” You must begin your argument with the words “Mr. Chief Justice
and may it please the Court.” When the white light on the podium goes on,
you have five minutes left. When the red light goes on, you must instantly
stop talking, even if in mid-sentence. The failure to conform to these
rules is considered bad form and viewed negatively by the Justices. Becoming
familiar with these rules and subscribing to them, putting them into practice,
makes one a member of a small, but distinguished club.
It was only a few minutes before ten when
I left the Lawyers’ Lounge to take my place at the argument table, a bench
immediately behind counsel table, carefully avoiding the eyes of reporters,
the courtroom artist from CNN, and the family and friends who were present.
At this point, I was trying to avoid any possible distractions. Counsel
have the option of entering the courtroom at the beginning of the calendar
or simply waiting until just before their case is called. I wanted to listen
to the arguments in the case before mine–a rather technical controversy
regarding the standard for appellate review of punitive damages awards–to
get a feel for the climate in the room. A few minutes later I heard the
familiar “Hear Ye, Hear Ye, Hear Ye” and saw the nine justices enter from
behind the curtain.
There they were, standing before me, those
familiar faces I knew so well. My stomach tightened. I had to silence the
voice inside me that said “this is your most momentous case as a lawyer,
as important as anything you’ll ever do; you are making history.” I knew
I had to try and treat this argument as I would any other. I had to put
everything else out of my mind and to rely on instincts developed during
a long appellate practice. I reminded myself I was not a novice, that I
knew what I was doing.
After some brief motions for admission to
the Court, counsel for the petitioner in the case preceding mine stood
up and addressed the Justices. Counsel is given 30 minutes to argue the
case (though in my own case I had ceded ten minutes of argument to the
Solicitor General, who was appearing on the State’s behalf as an amicus
curiae). Both the arguments and the responses of the justices in this
instance were restrained. The most notable occurrence involved counsel
for one of the parties mistakenly identifying Justice Souter as “Justice
Breyer,” causing a buzz along the seats reserved for members of the Supreme
Court Bar.
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It was the one gaffe every lawyer appearing before the Court is concerned
about, especially after the Florida lawyer in Gore v. Bush made
the mistake of calling one of the justices, “Justice Brennan.” I had decided
to simply refer to the justices as “Your Honor,” if there was any doubt
in my mind.
As I approached the podium with the stack
of briefs that had been filed in the case (my own two briefs, the opposing
party’s brief, and the briefs of the amici curiae), I was startled
by how low the microphones were. I am six feet, four inches in height and
realized that to speak directly into the microphone would require me to
bend over, making it difficult to maintain eye contact with the justices.
There was a crank on the side of the podium, but, as the clerk had warned,
it didn’t function. I vacillated for the brief moment I had and then decided
to lean slightly, while keeping my head up and my eyes on the justices.
“Mr. Chief Justice, and may it please the Court,” I said.
One of the pitfalls, as well as one of the
thrills, of oral argument before any appellate court is that you are required
to stand before a group of distinguished judges in what often is a test
of wits. Counsel do not get to make speeches in most appellate courts.
Ordinarily they begin with a few comments and then spend the rest of their
time responding to the questions of the justices. No one can come to your
aid if you find yourself unequal to the challenge. This was especially
the case in appearing before the United States Supreme Court. The failure
to acquit oneself well during oral argument before the Court can and it
has been known to happen–cast a pall on one’s entire career. The pressure
is, as one can imagine, intense.
I knew I had approximately thirty seconds
to a minute to make my opening remarks before I would be interrupted, since
I had studied scores of transcripts of recent arguments before the Court
(which are available on the Internet). This question and answer phase becomes
the real test at oral argument before the Court, requiring counsel to think
on their feet and to deal with questions persuasively. I was able to give
a brief history of the case and described the constitutional issue involved
before Justice Ginsburg interrupted me to ask a key question regarding
the practice of prime contractors withholding funds from a subcontractor.
Why, she asked in so many words, would a prime contractor not always pass
on the State’s withholding of funds to the subcontractor? I had worked
on this issue and had asked people in the industry the same question. I
was able to give a direct answer which seemed to at least preliminarily
satisfy her. Still more questions followed in rapid succession from Justices
Souter, O’Connor, the Chief Justice and Justice Stevens. Again, I had the
answer to the question or was able to refer the Justice to a specific place
in the record in which the question was
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answered. Justice Scalia was more of a challenge, asking difficult questions
that could undermine our position, and reacting with undisguised scorn
in a couple of instances at my responses. I knew that I was not going to
be able to convince him, that the best I could do was to confidently argue
my point and not get beaten down or lose my aplomb.
I was amazed when the white light came on,
and that my time was up. When I returned to argue my five minutes on rebuttal,
the five minutes seemed like mere seconds. There were arguments I wanted
to make and could not because the questions from the Court had taken so
much time. And there were some special phrases I wanted to use, like “The
Due Process Clause does not convert contractual sow’s ears into constitutional
silk purses,” to suggest that every property right is not covered by the
Fourteenth Amendment. But the occasion didn’t arise for this and other
such catchy statements I had planned to make. Fortunately, the most significant
points had been covered comprehensively in the two briefs I had filed in
the case. As every seasoned appellate lawyer knows a good brief is half
the battle. Often the Court has been sufficiently influenced by the briefs
that they are leaning in one direction or the other before oral argument
even occurs. And its not clear how points made for the first time during
oral argument affect the justices when they get ready to decide a case.
After the Solicitor General made his brief
comments, running into some of the same difficulties with Justice Scalia
as I had encountered, my opponent rose and began his argument. As he struggled
with questions from Justices Breyer and Souter, I made a note to myself
to try to comment on some of the questions posed to him when I returned
for rebuttal, a tactic that has often worked well for me in appellate arguments
in the past. I also noted Counsel’s arguments which should be rebutted
when I got my final chance before the justices.
Justice Ginsburg posed an unanticipated question
for me toward the close of oral argument. Unsatisfied by my initial response,
Justice Scalia weighed in with a more specific inquiry along the same lines.
I could feel the pressure of the moment and began framing a response in
my mind even before he had finished his question. Awkward pauses in responding
to questions can be damaging and I wanted to avoid that. I cited a pertinent
case and was about to launch into further explication when the red light
went on. Counsel are repeatedly instructed to cease talking, even if in
mid-sentence, so long as they have answered the particular justice’s question.
I looked at the justices and they looked back at me. “Submitted,” I said.
“Thank you, Mr. Kerrigan,” the Chief Justice interposed. The nine justices
rose from their seats. It was a little after noon. The work of five years
on this case had come to an end.
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Stepping back from the podium, I felt the frustrations
of having so many things to say, and not having been able to get them all
said. But before I could reflect on what had happened and how well I might
have made the arguments, colleagues, family and friends were clamoring
around me with congratulations and optimistic predictions of success. I
was far less sure that all had gone so well. And who, after all, is better
qualified to make the assessment, the person directly involved in the case
or those who watch from a distance? My concerns notwithstanding, there
was real relief at the end. I was finished, finally, with the case that
had taken up so much of my life since 1995.
When I got back to my office in Los Angeles
the next day numerous other matters demanded my attention. Though I tried
to avoid thinking about my Supreme Court appearance, the case kept intruding
in my thoughts. Then, on April 18 of 2002, I went into the office early
to find an email message from the Supreme Court Clerk. The Court had ruled
in my favor, 9-0. It was one of those rare unanimous opinions of the Court.
Someone faxed the Daily Labor Report to me that afternoon. The banner
over the article read:
SUPREME COURT RULES AGAINST SUBCONTRACTOR
ON DUE PROCESS CHALLENGE AGAINST STATE
I read the decision, reflecting on the fact
that the arguments that had at last carried the day had been repeatedly
thrown back at me, sometimes with scorn, during the lengthy appeals through
the Federal courts. We had won, my client had been absolved of allegations
of unconstitutional practices, and we had vindicated a 70 year old statute
enacted to help working men and women. I could not have dreamed of a better
result.
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* This essay first appeared
in the American Reporter (an electronic daily newspaper) and appears here
with the permission of T. S. Kerrigan. |
