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.

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. 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 (SPLC), 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. 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 has since been 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. Once the trial court determined that Mr. Fountain could sue prison officials, 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. Fortunately, the SPLC graciously agreed to front the costs.

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, 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. I needed only one more signature. I had a CLE seminar to attend. I took the application with me, along with a Federal Express envelope. In the lobby of Georgia Public Television, 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 waiting room. 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 secret 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 and Rhonda Brownstein, 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.” What a nightmare! . 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 Richard was able 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 ent outside the questions presented by the Court 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. A friend assured me that as long as I didn’t humiliate myself, the argument would be a success.

Over the following week, 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 much easier to choreograph than thirty minutes.

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.

Something incredible happened 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! 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, who was there for the cameras and the post-game interview; and Nate Forester, a law professor at the University of Alabama and the recently appointed state Solicitor General, 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
July 2002