February 18, 2020 Litigation

May It Displease the Court

Hon. Bridget Mary McCormack and Len Niehoff

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In this article, we explore the possibility that there may be instruction in those moments when a Supreme Court argument stalls, stumbles, sputters, or sinks. We look at the arguments from three of the most important cases decided by the Supreme Court.

Tinker and free speech. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), three high school students wore black armbands to school to protest the Vietnam War in violation of school policy. The case presented a straightforward legal question: Did the students have a First Amendment right to do so? But the case also implicated the complex and conflicted national dialogue about the war.

Dan Johnston of the Iowa Civil Liberties Union represented the students, and Allan Herrick represented the school district. On the morning of the argument, the Court announced its decision in Epperson v. Arkansas, 393 U.S. 97 (1968), which declared unconstitutional a state law banning the teaching of evolution in public schools.

Johnston went first. An early miscue occurred when he referred to the Court’s decision from that morning in Epperson. When Johnston invoked Epperson, Justice Abe Fortas jumped in: “Well, this is not a religious establishment case here?” he asked. Johnston had to concede that he had started his argument with a case that was not on point.

Herrick hoped to draw on one of the Court’s recent decisions as precedent, so he cited Adderley v. Florida, 385 U.S. 39 (1966), which upheld the trespass convictions of a number of students who had gathered at a jail to conduct a protest. Justice Thurgood Marshall interrupted, pointing out that whereas several hundred students were involved in the Adderley case, seven out of 18,000 students were wearing armbands in this case.

Things got rockier for Herrick. Chief Justice Earl Warren asked what if the students had simply worn a political button. On Herrick’s reasoning, couldn’t the school district prohibit that? Herrick tried to distinguish this case on the basis that armbands in protest of the Vietnam War were different from the chief justice’s example because the “situation” around them was “explosive.” This proved to be a strategic error. Where, Warren asked, was the evidence of any such “explosiveness”? In response, Herrick read a passage from John Tinker’s deposition transcript where he stated that some students had asked him in a “friendly” manner to take the armband off while others were “milling about.” As evidence of explosiveness goes, this is underwhelming.

Lessons from Tinker. First, both lawyers erred by leading off with references to cases that were easily distinguishable. Epperson was easily distinguishable. And Marshall did not just distinguish Adderley; he used it as a vehicle for emphasizing the small number of students involved in the protest in the Des Moines school. Marshall’s “seven out of 18,000” statement is one of the most powerful in the course of the argument. The lesson seems clear: Do not make more of a case than it is worth, even if it comes from the same court and even if it works well with the general atmospherics of your argument.

Second, Herrick’s contention that the record contained evidence of an “explosive” situation did nothing but set him up for the sort of skepticism that Justice Marshall expressed. This lesson is universal: Don’t let your zeal for your case lead you to overstate it.

Bakke and affirmative action. Regents of the University of California v. Bakke, 438 U.S. 265 (1978), concerned the use of race-based affirmative action in university admissions. Reynold Colvin, the attorney for Allan Bakke, dedicated most of his argument time talking about his lawyerly efforts to get Bakke into the medical school and about seemingly irrelevant details in the record. The justices took turns trying to move him toward a discussion of the constitutional issues. But Colvin was a juggernaut of transcript minutiae.

Lessons from Bakke. Listen carefully to the comments and questions that the Court sends your way. Colvin received no fewer than three completely clear signals that he needed to shift his argument from a discussion of the facts to an analysis of the legal issues. But he just could not or would not do it.

Johnson and flag burning. In Texas v. Johnson, 491 U.S. 397 (1989), there were five votes to hold that the First Amendment protected Gregory Lee Johnson’s right to burn a U.S. flag in front of Dallas City Hall. Dallas County Assistant District Attorney Kathi Alyce Drew argued for Texas. Drew understood that she had one job to do in this argument: convince five justices that a compelling state interest justified the statute. She moved quickly to her two best offers of compelling interests: “One is the preservation of the flag as a symbol of nationhood and national unity. The second is the preservation of the peace.” She started with the symbolic nature of the flag, a theory that three of the dissenters ended up liking. But Justice Antonin Scalia let no time pass before pushing back.

Justice Scalia’s opening question, and Drew’s answer, foreshadowed the rest of her argument on this topic: “Why did the defendant’s actions here destroy the symbol?” Drew must have understood this would not be a winning argument with Justice Scalia. But she may have calculated that she just had to live with his pushback.

But Justice Anthony Kennedy followed with his own skeptical questioning on this front. He wondered what other symbols might deserve similar special status. Drew’s precious advocacy minutes were spent on the impossible task of drawing lines between various government symbols. When Justice Kennedy followed Justice Scalia, a course correction might have been in order. Drew almost never got to her second compelling interest pitch.

Lessons from Johnson. If you have two arguments and you are not sure which of the two might interest a majority of the Court or, perhaps more importantly, which of the two might interest the potential swing voters on the Court, be nimble enough to switch horses quickly. Drew started her argument claiming that two separate justifications supported the statute but spent all her time on one that—it was clear early on—was not going to win five votes.

ABA Section of Litigation

This article is an abridged and edited version of one that originally appeared on page 33 of Litigation, Winter 2018 (44:2).

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Hon. Bridget Mary McCormack

Hon. Bridget Mary McCormack is a justice on the Michigan Supreme Court.

Len Niehoff

Len Niehoff is a professor at the University of Michigan Law School and of counsel to Honigman, Ann Arbor, Michigan.

Published in GPSolo, Volume 37, Number 1, January/February 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.