Appeals to the US Supreme Court
Craig T. Jones
As my mother used to say, “it ain’t braggin’ if you’ve done done it.” Bragging rights or not, I take great pride in the fact that I have won- and lost-a case in the United States Supreme Court. The case I won was Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508 (2002). The one that got away was Scott v. Harris, — U.S. —,127 S.Ct. 1769 (2007). As you might imagine, I prefer talking about the former more than the latter. In this presentation, I have put together a Top Ten list of tips that I have gleaned from both of my experiences, along with an updated version of an article I wrote in 2002 about my first experience before the Court. Finally, I have attached the successful cert petition (unedited version) which I used in the Hope case. For more information, I recommend that you go to the Supreme Court’s official website, where there are links to the Rules as well as a very useful guide on how to handle cases in the Supreme Court. You can also access the docket, retrieve decisions, and even get transcripts and audio recordings of oral arguments.
A TWO-TIMER’S TOP TEN TIPS
1. Be careful what you ask for! In writing a cert petition, keep in mind that what happens in your case will impact generations of future lawyers and litigants. That means you need to think not only of your own client, but of society as a whole. As the Eleventh Circuit says in its rules, “Counsel are reminded that the duty of counsel is fully discharged without filing a petition for rehearing en banc…” and that is also true of a petition for certiorari. 11 th Cir. R. 35-3. I learned the hard way that you can screw up the law for everybody if you are not careful, although I was the respondent in that case (Scott v. Harris) and I was forced to go along for the ride! (I am not exaggerating here. Someone-perhaps a carload of high school cheerleaders who have just toilet-papered a rival’s front yard-will needlessly die as a result of the police policy and training changes which will result from the Supreme Court decision in that case.)
The philosophy of cert petitions is simple: if you are trying to get cert granted, you are writing a sales pitch on why the case is important and why the Court should take it up. Not a regurgitation of your Court of Appeals brief, but an honest to goodness sales pitch on why the case is important. If you don’t want cert to be granted, I suggest that you do nothing to make the case or its issues seem important. In all but the most exceptional cases, I would suggest not even filing a response (an “op-cert”) unless requested to do so by the Court, and if that happens, then you want to do everything you can to minimize the importance of the issue. In other words, the best way to defeat a cert petition is to do nothing and simply play the odds—if you say anything at all you are calling more attention to the case, and if you say something provocative you are taking the risk that you may pique the interest of someone on the Court. I am convinced that the failure of the state of Alabama to minimize the issue in Hope v. Pelzer (the prison “hitching post” case) had more to do with the grant of cert in that case than anything I did to maximize the issue in my cert petition. (Rather than downplaying the case by stressing that the facts were too unique for the case to have precedential value, they instead chose to boldly proclaim that they had a statewide policy of treating all inmates the way they had treated my client-which only added fodder to my argument that the case was compelling enough to warrant the Court’s attention.)
2. Do several moot courts. Moot courts are the best way to prepare for an oral argument in the Supreme Court. There are law professors who live for the opportunity to play judge and grill real lawyers, and you will have no trouble getting someone to organize a moot court for you and to find volunteer judges. Depending on your issue, you will be flooded with calls from organizations and practitioners in that practice area, including offers to handle the argument for you. In both of my cases I insisted on arguing myself, but I welcomed all input from anyone who wanted to help toughen me up. I believe that you should ideally do three (3) or four (4) moot courts-anything less than that is not enough to test you for battle, and if you do too many then you run the risk of becoming too rote, too mechanical, and too confident. (You need to keep your edge, and there is nothing like fear to keep you on your toes.)
The Georgetown Law School has a good moot court program, and they will generally do a moot for one side or the other in every case that comes before the Court. At one time they would choose which side to help, but now I believe their policy is to help whichever side calls them first. If cert is granted in your case, you should contact them that day if you want their help. Having done seven (7) or eight (8) moots, I can say that the professors at Georgetown were not necessarily the most interested or knowledgeable in the issues of my case, but I do believe they had the most familiarity with the Justices and the workings of the Court of all the panels that I argued before. It is a good idea to have a diverse spectrum of judges doing your moots so you do not just have people telling you what you want to hear. The other side will be having their own moots, and the more difficult you make your own moot courts, the better prepared you will be. I suggest that you argue with the same time constraints that you have in the Court, and then afterward you break down and have an informal discussion with the panelists. Encourage the professors to invite their students, and also encourage them to ask questions afterward-but if you do so you may want to have everyone sign a pledge of non-disclosure which is punishable as a school honor code violation. I suggest spacing the moot courts at least a week apart so that you have time to incorporate suggestions and to let the experience of each one soak in. It does not hurt to do one of them in Atlanta with people you know, but I strongly suggest doing most of them out of town so you do not have to worry about judges you know being too polite to be helpful.
3. Organize your notes, and then you will never need them. Starting with the moot courts, you want to make your notes as inconspicuous and unobtrusive as possible. You cannot take briefcases into the Court, so I got myself a 5 x 7 inch 3-ring notebook that would fit in my suit pocket. That way I could lay it flat on the podium without it hanging over the edges, and I could nonchalantly flip the pages with one hand if necessary. I put tabs on the pages so I could quickly find a quotation or cite if I needed it. Turns out I never looked at it once in either of my arguments, but knowing it was there gave me the confidence to speak without looking at it. It is a curious paradox, but it works. I like the 3-ring binder because you can rearrange your topics, add tabs, and keep adding new information right up until the day of argument. Many lawyers take a manila folder with important quotes and cites literally cut and pasted inside the folder, which means that all they have to do is look down without turning pages, but I like to have something which fits in my pocket and makes it appear that I have no notes at all when I walk up. You do need to have record cites at your fingertips so you can give the Court a page number if you are asked where something is in the record-I recommend that one of your tabs have a short index of all the important documents-but you will probably find by the time that you get there that you have the record committed to memory. Your case will become a part of you, but only as a result of intense preparation.
4. Watch as many arguments as possible. Next to actually doing moot courts, the best way to prepare is to watch other Supreme Court arguments. I strongly recommend that you make a separate trip to DC, well in advance of your argument and before your moot courts if possible, to observe the style and cadence of the arguments. It will help with your delivery and confidence more than anything else you will do. I saw Larry Thompson, who was then #2 at the Justice Department, effortlessly make a conversational argument in a criminal case. He really made it look easy. I also saw an experienced advocate from the Solicitor General’s office-someone who had argued before the Court dozens of times-get rebuked by Chief Justice Rehnquist for trying to talk over a Justice who had interrupted him with a question. On my last trip, I saw Ted Olsen, the former Solicitor General and perhaps the best living Supreme Court advocate, address one of the Justices by the wrong name. Taking all of this in-the good, the bad, and the ugly-will give you the confidence to make your best argument.
5. Memorize an opening and closing. The most exciting thing about the Court is that it is a hot bench. They only take about seventy-five cases a year, and they get to take their time learning the details of each and every case. They are interested in the case and what you have to say, whether they care about your client’s agenda or not. They will generally let you speak for about 25 seconds before they start peppering you with questions, so you want to make sure that whatever you say for the first 25 seconds is solid gold. You will need to write, rewrite, and constantly perfect an opening sentence that states your position in the best possible light, and to commit it to memory. You will test it in the moot courts and refine it as you go. Then, in the weeks leading up to The Big Day, you will find yourself repeating it in your head everywhere you go. If you are the petitioner, you will not deviate from that script until you are interrupted by a question, which will take about 25 seconds. If you are the respondent, you will also have an opening memorized, but you may have to call an audible if the other side gives you an opening-for example, in my second argument, I decided to deviate from the script and to start out by immediately responding to a question that my opponent had either dodged or misunderstood. (The advantage to that approach is that you immediately gain credibility, but the disadvantage is that you may lose confidence because you are stepping into uncharted territory after months of preparing exactly what to say. If you stick to your opening you will always be safe, but in my case I knew I was losing so I was not afraid to take that risk). Finally, you should also compose a very short closing statement-15 seconds or less-that you can use to wrap up when you are almost out of time. But if the final light comes on before you get a chance to say your closing, just say “Thank you” and sit down immediately.
6. You are not a player-you are the ball! This is something that Devon Orland from the state Attorney General’s office told me after she argued a case a few months before my first argument. Once the Justices start talking, you shut up and listen. You answer the question whether it is the right question to ask or not, and then you try to change the subject if they let you. They are not there to play your game; in fact, you are not even a player at all. You are the ping pong ball that they use to make their points to one another, and you might as well go along with it. Use your answers to their questions to segue into the points that you are there to make, but remember that it is their game and your job is to empower them to make the right decision by giving them information that is responsive to their questions. Hopefully that information will also be helpful to your client’s cause-if it is not, you acknowledge that and then tell them why the unfavorable fact should not be determinative of their decision.
7. Don’t argue the law, but what the law ought to be. Remember that you are there because there is a split in the Circuits, a dearth of law, or a movement on the Court to change the law. Either way, these Justices have the power to do whatever they want. The last time I was there, Justice Breyer asked me a question about how he was supposed to rule when he disagreed with the findings of fact made by the trial court. I wanted to tell him that he should follow the law and defer to the trial court’s findings, but then I stopped myself when I realized that the nine (9) people before me had the right to ignore the law if they wanted to. So instead of telling him to follow the law, I said “apply the law.” It may not be reflected by the transcript of the argument, but I recall there being thunderous laughter from the audience when I said that. The Supreme Court is one place where you can get away with arguing what the law ought to be rather than what it actually is, and you should fully take advantage of that opportunity.
8. Never dodge a question . This is a no-brainer if you are before any judge, but it is harder than it looks. If you evade the question, or if you give a pat answer and then change the subject to your agenda without giving the questioner what he or she was looking for, you damage your credibility and may well alienate an ally on the bench. Just roll with the flow, and if the answer to the question is not favorable to your position then explain why you should still prevail. That is tough to do when the Justices are interrupting themselves to ask follow-up questions before you have completed your answer to the first question, but this is why you have moot courts and watch other arguments. You will develop a rhythm of speaking in 15-second sound bites, which will also help you in other areas of your law practice.
9. Know when to shut up! Certainly you need to stop talking as soon as a Justice interrupts you. You also need to sit down immediately when your time is up. But if things are going your way, you need to be able to recognize when it is appropriate to sum up your argument and finish early, particularly in rebuttal. In the Hope case, the other lawyer got beaten up so badly by the Court that I really did not need to offer any rebuttal. Nothing I said could have possibly made my case any stronger than it was at that moment in time. But instead of just saying “we waive rebuttal’ and appearing too smug or cocky, I arose slowly and announced, as graciously and deliberately as I possibly could, the following: “Thank you, Mr. Chief Justice. Unless the Court has any additional questions, the Petitioner respectfully requests that the judgment of the Court of Appeals be reversed.” I doubt that it happens often with so many close decisions, but if it looks like you have got the case won then you want to be able to make a graceful exit and quit while you are ahead.
10. Have fun! For a few minutes, you will be at the pinnacle of your professional career. At the moment the Chief Justice calls your name and you step up to the podium, thousands of lawyers across the United States will be simultaneously stating their cases to judges and juries, but you will be the only one at that instant who is standing before the highest court in the land. For that moment in time, you will truly be the most important lawyer in the world. It is a rush like no other. Savor it, and you will always cherish the experience whether you win or lose. That being said, you do not look at your notes the morning of the argument. After years of litigating this case and months of meticulous preparation, there are no new insights that will pop into your head at the last minute. You need to stop your preparation at lunchtime the day before the argument, and then spend the afternoon touring the Smithsonian or shopping in Georgetown. (If your case involves the Constitution, you might go to the National Archives and peek at the original sacred document-you will be inspired by the sight of hundreds of tourists doing the same thing, albeit from a different perspective). Have a leisurely dinner, get a good night’s sleep, and get there early. Afterwards, I recommend staying an extra day or two in Washington to decompress. It will be the best vacation you ever had.
TURNING THE LAW ON ITS HEAD:
One Lawyer’s Experience Before the Highest Court in the Land
They said it would never happen. The Supreme Court of the United States receives thousands of petitions for certiorari each year, but only a handful make the cut and get taken. On January 4, 2002, the unthinkable happened. The Big Nine said “yes” to my cert petition, and I was off to the majors. Thirty minutes after receiving the call, I was interviewed by the national press. My client, then indisposed in Alabama under a presumption of innocence, did not hear the joyful news for a whole month. But more on that later.
The Supreme Court proceedings were the end of a case that ebbed and flowed for years.
It started in the fall of 1997 with a call from Jim Mendelsohn, a Birmingham lawyer who used to practice in Atlanta. Jim asked if I had ever heard of the “hitching post.” “You mean for horses? Like they used a long time ago?” No, he responded – a hitching post for people. The Alabama prisons had a policy and practice of cuffing uncooperative inmates to metal posts to teach them a lesson. The idea is that an inmate who is pilloried for seven or eight hours, and left sunburnt, dehydrated, and humiliated at having urinated and defecated upon himself, will think twice the next time he feels like sassing off to Officer Bubba.
Larry Hope had filed a pro se section 1983 lawsuit, and was looking for a lawyer now that he was out of prison. Little did we know that Mr. Hope would become a big winner in the Supreme Court lottery five years later.1
Mr. Hope had been unconstitutionally subjected to cruel and unusual punishment in violation of the Eighth Amendment, but we had second and third thoughts about taking his case. There would be immunity issues to overcome.2 Even if we could get to an Alabama jury, there was no telling how much a jury would award. Sure, he had been treated like a dog (actually, worse than a dog), but he was a criminal. And after all, he had not only mouthed off to Bubba but fought with both inmates and guards.
But then I found out that Mr. Hope was only one of several hundred inmates who had been subjected to the hitching post — most of them for minor infractions which involved no violence — and that a United States Magistrate Judge in Alabama had issued a recommendation opining that using the hitching post was unconstitutional. I started thinking “class action.”
Over the next year, I received ten more referrals of hitching post clients from the good folks at the Southern Poverty Law Center in Montgomery, who had obtained the magistrate’s recommendation (eventually adopted in large part by the District Court judge) that the hitching post was unconstitutional as used.3 The SPLC action had already been certified as a class action, but sought only injunctive and declaratory relief. We decided to file our own class action, seeking monetary damages.
Mr. Hope was a good class representative in many ways, but in others was less than ideal. He had been released on parole, and so was able to travel to court in his own vehicle and clothes. He also had the best story of deprivation, especially of water. While he was on the hitching post for seven hours in near ninety degree weather, prison guards set a bucket of water at his feet, called the prison dogs to drink from the bucket, and then kicked the bucket over. Even better, photographs of his ordeal had been published in both Life magazine and the New York Times.
But as good as his pillory story was, the fact remained that Mr. Hope had been fighting with correctional officers. Even though that did not justify his restraint after the immediate threat was over (once he was handcuffed and ceased resisting), other inmates’ restraints were more compellingly unjust. Most had not fought with anyone; they had simply disobeyed an order, or refused to work, or (in the case of one inmate who was later released after a successful habeas challenge to his murder conviction) got caught masturbating in the shower.
Larry Fountain, an elderly man who could barely walk (with a cane), had the case with the most jury appeal. Mr. Fountain was shackled to the post for failing to keep up with his work squad. A laxative prison doctors gave him, to counter constipation caused by his prescribed pain medication, kicked in with full force. He defecated on himself for the remainder of the day, much to the delight of his peers. When he was finally released from his restraints, his back pain from being chained in an uncomfortable position for many hours was so severe that he was hospitalized for several days.
Given Mr. Fountain’s strong case, the District Court denied summary judgment to the prison officials responsible for his torture. The Department of Corrections chose not to appeal, even though ordinarily there is a right to interlocutory appeal from a U.S. District Court order denying a public official’s claim of qualified immunity.4 Once the trial court determined that Mr. Fountain could sue prison officials,5 it turned to class certification and held a hearing on that issue.
Before we could get a ruling on class certification, however, another District Court judge threw Larry Hope’s case out on summary judgment and was affirmed by the Eleventh Circuit Court of Appeals. Then the District Court which had ruled in favor of Mr. Fountain vacated its ruling and dismissed the class certification motion as moot. District Courts in which we filed suit for nine other inmates (to beat the statute of limitations in the event that class certification was denied) either followed suit, or stayed their proceedings pending final resolution of the immunity issue, after I boldly announced my intention to petition for certiorari on behalf of Mr. Hope.
We were now marshaling eleven separate cases through a half-dozen courts at the same time, all turning on the same legal issue. Five cases which were not stayed advanced to the Eleventh Circuit, and were consolidated into a single appeal. (We still had to pay five separate appeal costs, but wrote only one brief.) The Eleventh Circuit declined to stay the consolidated appeal pending action on the upcoming cert petition, since the odds were so heavily against us. Instead, the Eleventh Circuit summarily affirmed the lower courts’ grants of summary judgment, consistent with its prior decision in Mr. Hope’s case. The only thing we could do was file for en banc rehearing on these five cases and hope that we could stall long enough to beat the clock.
By the time the en banc petition was filed, we had already filed the cert petition in Hope. We learned from the Supreme Court’s official website that there were only five hundred or so cert petitions left to be decided, which made the odds somewhat better than usual, since the Court receives upwards of 8,000 petitions per year and rejects more than 99% of them. We were really emboldened when the Supreme Court directed the Alabama Department of Corrections to respond to our petition. That prompted us to ask the Eleventh Circuit to stay the en banc proceedings because the Supreme Court had expressed some degree of interest in the Hope case, attaching the Supreme Court’s order to the DOC. This time the Eleventh Circuit agreed to hold off action on the en banc petition until final resolution of Hope by the Supreme Court. By now, we were halfway expecting the Court to grant cert, even if the chances were still less than 1 in 10.
We read and re-read the petition. It had cost over $2,000 to have it bound and published according to Supreme Court Rules. The SPLC graciously agreed to front that cost.
Finally, on January 4, 2002, several calls came, the first from a reporter. We had filed the petition in Jim Mendelsohn’s name, since he was a member of the Supreme Court Bar and I was not. The Court called Jim as counsel of record, but he was not in the office, so the press found out before we did. When Jim called, I pretended I was hearing the news for the first time, not wanting to deprive him of the pleasure. Delirious with excitement, I promised Jim we would do the oral argument together. Later I learned that I should have checked the rules first.
Split arguments are disfavored and allowed only when ordered by the Court, such as when the Solicitor General or an important amicus wants to weigh in. So right off the bat, I had turned a happy occasion into a stressful one. I spent the weekend leaving apologetic voice mails to Jim informing him that I had been wrong. Fortunately Jim is a class act. He agreed that I should argue the case, given that I had done the lion’s share of the work and written the cert petition.
Then I found something else to get stressed out over. I had to get myself admitted to the Supreme Court Bar. With the Washington post office in gridlock over anthrax attacks, it was possible that my application for bar admission would not arrive at the Court before the deadline for appearing as counsel. What if I missed the deadline and lost my opportunity to argue?
When I located my client, I discovered I really had nothing to complain about. On the very same day the Supreme Court granted cert in his case, Larry Hope pleaded guilty to rape and was sent back to prison, this time for life without parole. I quickly regained my perspective.
The Supreme Court told me I needed to overnight my application for admission to their Bar within twenty-four hours in order to guarantee timely delivery. I set out in search of lawyers who were admitted and would sponsor me. Ken Shigley, whose office was twenty feet down the hall from mine, had already left for the day. Desperately, I dialed his home. “Sure, I’ll sign it. Just catch me at the office tomorrow.”
“Thanks, Ken. By the way, who sponsored you when you were admitted?” “Roy Barnes. We used to be pretty close.”
Next morning, Ken was not there yet. But another lawyer on the hall, Stan Levitt, was a member of the Supreme Court Bar who was happy to assist. That left me in need of only one more signature. Since I had a CLE seminar to attend that morning at the headquarters of Georgia Public Television, I took the application with me along with a Federal Express envelope. In the lobby of the GPTV building, a familiar profile emerged from a studio with his gubernatorial entourage in tow. Governor Barnes stopped, shook my hand, and said yes, he would be privileged to sponsor a fellow trial lawyer at the highest court in the land. So his name is engraved on the same $100 sheepskin as mine. It now hangs proudly in my office.
The next step was to start work on the case. Our brief was due in six weeks, typeset and bound to the tune of several thousand more dollars. Once again, the SPLC came to the rescue. Not only did they commit funds, but they summoned Jim Mendelsohn and me for lunch at their Montgomery headquarters.
Over a sack lunch, we conferred with Eric Schnapper, a constitutional scholar at the University of Washington Law School. We planned a conference call for a few days later to enlist research assistance from the ACLU, the Southern Center for Human Rights, and other groups.
We also talked about the Department of Justice, which had called me and expressed support for our position. Their support was troubling. The DOJ represents the federal Bureau of Prisons, so they were usually on the other side of prisoner’s rights cases. We reached a consensus that Justice was in the case for damage control, because they sensed that we were going to win, and did not want the Court to go too far overboard. We decided to welcome the Government’s support but to exclude them from our meetings, at least for the time being.
The ACLU would file an amicus curiae brief, to be written by law professors in Florida who were equally irked by the Eleventh Circuit’s conservative approach to qualified immunity. The Southern Center for Human Rights in Atlanta presented me with a thick stack of decisions from every Circuit which supported our position. I completed the first draft of the brief early – five days before it had to be at the printer. It was largely cut-and-pasted from the cert petition, lower court briefs, and the multi-circuit research which the Southern Center had added to the mix.
The SPLC and two of its lawyers, Richard Cohen (now the Center’s executive director) and Rhonda Brownstein (now the legal director), joined us on the pleadings. It was the least we could do, since they were funding the case and providing editorial assistance with the brief. Rhonda had worked tirelessly on the Center’s class action against the hitching post. Richard was the Center’s legal director since leaving private practice in D.C. some sixteen years earlier. He was a brilliant but demanding editor, and would work wonders with my brief. On a Sunday afternoon conference call, I anxiously awaited his critique. “Craig,” he said, “I can’t edit this. You need to start from scratch, and give us something we can work with.” I cannot print the thoughts that went through my mind, but you get the picture.
. Richard and his advisors offered great ideas on how to restructure the brief. We knew there was no way to make the deadline. But extensions, like split arguments and pink neckties, are not favored by the Supreme Court. Yet Richard and Rhonda got us two extra days – just enough time for another draft and another scathing critique. Richard and Rhonda decided that I needed help with the writing, so we divided responsibility for the various sections of the brief. Rhonda and I started writing independently, while Richard edited and checked our research.
Finally we got a draft that Richard was willing to edit. When I saw Richard’s revisions, I realized Rhonda had rewritten my portions in their entirety as well as her own, undoubtedly while Richard cracked the whip over her shoulder. Funny thing was, I no longer cared. The finished product was better than anything I could have come up with. It was time to focus on the oral argument.
I read articles. I read transcripts of oral arguments. Transcripts and tape recordings of past arguments can be found on the Court’s official website and through its links to other sources. But far and away the best way to prepare for argument in the Supreme Court is by participating in moot courts. It is not optional. It is what everybody does, including the seasoned advocates in the Solicitor General’s office who argue before the Court several times a year.
Richard set up a moot court at Georgetown Law School, sponsor of the Supreme Court Institute, in which professors and high-profile Washington lawyers serve as surrogate justices and hear mock arguments in perhaps half of the cases which the Court hears each term. Because the Georgetown program schedules its moot courts just a week before the actual arguments are to be held, we scheduled a couple of earlier moot courts, at the University of Georgia and at Georgia State law school, during the two weeks leading up to the Georgetown finale.
The first moot court, a distinguished panel of professors in Athens, was rough. A barrage of unexpected questions went well beyond the questions presented by the Court (“QP” in Supreme Court lingo) in its grant of certiorari. A week later, things went much better at Georgia State when a panel of professors and civil rights lawyers – including Jim Mendelsohn – tried out similar questions. At Georgetown, the questions were more narrowly tailored to the Court’s framing of the issues, and I thought that it went pretty well although Richard Cohen, who had served on the panel of judges, seemed nonplussed. A lawyer friend in Memphis assured me that as long as I didn’t humiliate myself, the argument would be a success. Five years later, the lawyer friend in Memphis (Andy Clarke) would be my co-counsel in another Supreme Court adventure, Scott v. Harris, 127 S. Ct. 1769 (2007).
In the week leading up to the argument, a remarkable transformation occurred. The crisp, tailor-made suit ordered for the Big Day arrived just in time, and the nifty quotes from prior Supreme Court decisions started, without explanation, to roll effortlessly off my tongue. Suddenly I was in The Zone. My pregnant wife, two kids, and mother-in-law came along for the ride. Believe it or not, it was the most enjoyable vacation of my life.
We arrived in Washington at suppertime on Sunday after leaving Atlanta at six in the morning, despite having to stop for bathroom breaks every fifty miles. Monday and Tuesday mornings, I went to the Supreme Court to observe arguments in other cases. There I saw one or two excellent Supreme Court advocates, as well as a couple who seemed to know less about their cases than I did. I am not sure which gave me more confidence: watching the good arguments or the bad ones. Most importantly, I became familiar with the landscape of the room, the demeanor of the justices, and the procedures. During breaks, I walked around Washington talking to myself, reciting the three-sentence introduction that I hoped the Court would let me finish before they launched into their barrage of questions. I had also written and memorized a two-sentence conclusion in the event that I was able to come up for air before it was time to sit down.
After court on Monday, I went to Hogan & Hartson, a large D.C. firm. They graciously agreed, thanks to Richard’s persistence, to lend me a conference room, a phone and fax machine, and access to a library comparable to that of many law schools. This was my home away from home, a quiet place to work while my family toured the town and trashed the hotel room. Later that afternoon I had the pleasure of participating, as a mock justice, in someone else’s moot court. A Deputy Solicitor General named Austin Schlick would participate in oral argument in support of my client’s position. The Court granted the Government’s motion to split the argument, with our consent. Austin would take ten minutes out of the half-hour allotted to our side. This was welcome news, because a twenty-minute argument (of which five minutes were reserved for rebuttal) is easier to choreograph than thirty minutes. Not to mention the fact that when your client is a criminal, it is a big plus to have Uncle Sam on your side.
Attending Austin’s moot court was a pleasant experience. Like me, he had spent the last ten days working on nothing but The Case, and he had participated in a traditional moot court – with his colleagues in the Justice Department and the Solicitor General’s office serving as justices – a week earlier. His second moot court was an informal, roundtable discussion, which lasted for well over an hour. Along with a dozen bright young government lawyers, I took great relish in grilling him with the very same questions that had plagued me at my moot courts. He threw every one back in my face. When I returned to Hogan & Hartson that evening, all that remained was to check a couple of obscure citations and put the finishing touches on my notes – all of which were condensed into a 5″x7″ notebook which would fit snugly in my pocket and lie flat on the podium.
Vowing to do no more work, I spent Tuesday afternoon touring the Smithsonian with my family after oral arguments at the Supreme Court that morning. That evening, I took my wife out to a French restaurant on Capitol Hill and retired early for a good night’s sleep.
When the big day finally came, Sharon and I had a leisurely breakfast at the hotel and hailed a cab to the Supreme Court, where we were to meet Richard and Jim, who had flown in the night before with his son. Sharon and the Mendelsohns had reserved seats in the guest section. Richard, who by now was second chair, would take one of the four seats at the petitioner’s table. The other two chairs were for Austin Schlick and another lawyer from the SG’s office: Paul Clement, who would later become Solicitor General in the second Bush administration.
On the way to the Supreme Court, our cab driver was tuned in to National Public Radio. Nina Totenberg, who had interviewed me by phone several weeks earlier, was talking about the important civil rights case coming before the Supreme Court that day. The next thing I knew, I heard my own drawling voice on the radio. I exited at Maryland and First to the sound of my own voice on NPR, and I actually sounded like I knew what I was talking about!6 With that shot of confidence, I took Sharon’s hand and marched straight up the marble steps to the highest Court in the land.
Gathered in the Supreme Court cafeteria were Bill Pryor, Attorney General of Alabama and now an Eleventh Circuit Court of Appeals Judge, who was there to observe and talk to the cameras afterward, and Nate Forester, a law professor at the University of Alabama who would argue for the state. Then it was time for the lawyers to be briefed by the Clerk. Chief Clerk Suter gave a brief overview of court procedures, which were by now familiar.
Ten minutes later I was addressing the Chief Justice and the Supreme Court of the United States. They allowed me to spit out my three rehearsed sentences, but then they interrupted right on cue. Every question they asked was one I had heard before. The argument went well for us, mainly because of how Richard and Rhonda had framed the issues in the brief. It is amazing how smoothly oral argument goes with judges who have actually read the briefs. Anyone interested can read the transcript online. The rest, including the resounding 6-3 victory, was anti-climactic.
When the decision came out, I clung to every word. My favorite part was the dissent by Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, which complained that the majority had “turned qualified immunity jurisprudence on its head.” That, my friends, is exactly what we set out to do. We managed not only to make it easier for citizens to sue governmental officials who break the law, but also to rewrite the law of the Eleventh Circuit at the same time. In this business, it doesn’t get any better than that.
Craig T. Jones
(Another version of this article appeared in the Verdict in the fall of 2002.)
[1] . Hope v. Pelzer, 536 U.S. 730 (2002)
[2] . Qualified immunity is a defense under federal civil rights law which is available to public officials who are sued for violating rights which were not so ‘clearly established’ at the time of the unlawful conduct as to put a reasonable official on notice that such conduct was unlawful. Saucier v. Katz, 121 S. Ct. 2151 (2001); Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800 (1982). In our hitching post cases, the defendant prison guards claimed that there was no clearly established law prohibiting use of the hitching post, although prior cases like Gates v. Collier, 501 F. 2d 1291 (5th Cir. 1974) had held that it was unconstitutional to punish inmates by shackling them to fences and other objects. The Eleventh Circuit held that Gates and other cases we relied upon did not clearly establish the law because they did not involve conduct which was “materially similar” to using the hitching post. Hope v. Pelzer, 240 F. 3d 975 (11th Cir. 2001), rev’d, 536 U.S. 730 (2002). The Supreme Court granted certiorari in Hope to determine whether the Eleventh Circuit’s qualified immunity standard was too restrictive.
[3] . Austin v. Hopper, 15 F. Supp. 3d 1210 (M.D. Ala. 1998)
[4] . Mitchell v. Forsyth, 472 U.S. 511 (1985)
[5] . Fountain v. Talley, 104 F. Supp. 3d 1345 (M.D. Ala. 2000)
6. Ironically, what I heard myself saying on the radio was something to the effect that the United States was not allowed to treat prisoners of war the way that the state of Alabama treated its own citizens. Two years, later, the Abu Ghraib scandal would break and it would be proven that I did not in fact know what I was talking about. Coincidentally, I would later be involved in litigation on behalf of tortured Abu Ghraib detainees against private military contractors who were complicit in the torture. Ibrahim v. Titan Corp., 391 F.Supp.2d 10 (D.D.C. 2005), subsequent proceedings, — F.Supp.2d —-, 2007 WL 3274784 (D.D.C. 2007). That litigation continues to this day.