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February 13, 2024

Fireside Chat: Justice Brett Kavanaugh and Judge J. Michelle Childs

By: Kelechukwu Chidi Onyejekwe and Namosha Boykin

Justice Kavanaugh’s fireside chat with Judge Michelle Childs at the AJEI Summit delighted attendees with the unique insight only a justice of the Supreme Court could provide. Judge Childs led Justice Kavanaugh through the chat with questions about his career, advice for practitioners and judges, influences, and experience. Through his answers, attendees saw a highly engaged justice, a fierce believer in civility and public service, with a deeper social and racial conscience than is popularly known. Neither jurist came to sell anything---no book, no project, no charity. Just public service.

Judge Childs continues her life of tireless public service, as summarized in her rousing keynote speech at the 2022 Summit, available in the Winter 2023 edition of Appellate issues.

Justice Kavanaugh grew up in Bethesda, Maryland, in the District of Columbia, Maryland, and Virginia (DMV) metropolitan area. President Trump nominated him to the U.S. Supreme Court on July 9, 2018, to fill the seat vacated by Justice Anthony Kennedy. The full Senate voted 50-48 to confirm Kavanaugh’s nomination on October 6, 2018. Later the same day, in a private ceremony, he was sworn in by Chief Justice John Roberts as the 114th Associate Justice of the U.S. Supreme Court. Since then, he has emerged as the median justice or swing vote on the Court. His dos and don’ts for the legal community provided the most engaging aspects of his enthusiastically received presentation.

Seven Kavanaugh Dos and Don’ts

  1. Oral argument is particularly important, use the uninterrupted two minutes wisely. The Supreme Court allows litigants to begin arguments with two full minutes of uninterrupted time to make their case. Does oral argument matter? Yes! answers the justice. For him, “It makes an enormous difference because I do not view oral argument as an on-off switch. I view it more as one key moment in this process where you are becoming more or less certain about how to decide the case.” 

    Further emphasizing its importance, this justice views oral argument as being just as critical as the justices’ own conference afterwards. He explained the painstaking steps the Court takes to get it right. This process, according to him, begins with reading the briefs, oral argument, the conference, writing out the draft opinions, responding to the draft opinions, and then finally issuing the decision. The entire process is designed to eliminate mistakes, “to make sure we’re getting it right,” and oral argument is at the center of this process. “I really try to zero in on those two minutes, what you’re saying, those two minutes, use that time wisely.”

    “It is not throat-clearing time. Get to the point, hearing what points you are emphasizing in that opening is really important,” he emphasized.
  2. Plan your argument, including rebuttal. “Try to have a plan in advance. Figure out if there is going to be a rebuttal.”  The justice is aware that the plan could go out the window as proceedings develop. But if you have no plan, things could get worse. You are more likely to get up there and say a series of inconsequential things. “Get to it on rebuttal. The rebuttal time is for answering questions and it is so valuable. Even if your plan cannot work as the proceedings unfold, having a theme helps you bounce back. So, “what’s your theme?”
  3. Have a theme. The theme is your support system, your anchor. “In every case in our Court, there seems to be some combination of text, history, and precedent.”  Having a theme helps you figure out how to balance your argument and decide what to emphasize. You might have a great case on the statutory text. Then you fend off the precedent question by going back to the text. There might be a great precedent on point. “I’m going to emphasize that. When you have a theme, you keep coming back to it. The best lawyers, I think, can do that really well, i.e., getting back to their theme.” The Solicitor General, he said, referring to Elizabeth Prelogar, is just spectacular and does a fantastic job of coming back to her theme.
  4. Tell us how the facts work in the real world. In your brief and oral argument, tell us how it works in the real world. In an antitrust case, tell us, if you know, how the market works and how the production process works, just give us some background or whatever it might be. “I’m very interested in that,” he said, “because it may not affect exactly how I decide the case, but it probably affects how the opinion is written.” Because of his experience in private practice and as counsel to the president, “one of the things I am most concerned about [when] writing an opinion is that someone will pick it up and be able to understand what they can do, cannot do, or must do. Knowing how things work in the real world, on the ground, whatever area of law it might be, is really important for us.”
  5. Think about how the text of the opinion should be phrased. If you “win” a case but compliance with the ruling is impossible, what is the point? For this reason, Justice Kavanaugh invites practitioners to “be thinking about” how the opinion should be expressed, and explain that in the brief and during oral argument. “In other words, you can help us not just decide the case, but also you can help us shape how the opinion is written.” He gave examples of Justice Scalia and Justice Kennedy who asked practitioners to state how the text of the opinion should be phrased. Practitioners before the Court, he said, should continue to be ready to answer this question.
  6. Familiarize yourself with the Briefs of the Solicitor General. The justice’s direct invitation for practitioners to familiarize themselves with the briefs and arguments of the Solicitor General’s office is important. Notably, Justice Elena Kagan was a Solicitor General. So if you comply with this “do,” there are at least two sympathetic justices on the Court. The briefs are available at They exemplify civility across multiple arguments, as well as a balance of text, history, and precedent, in a manner that justice Kavanaugh finds impressive. Oral arguments are available through the Supreme Court’s website.
  7. Be civil always. Civility was the theme of Justice Kavanaugh’s message to judges and practitioners. In five specific instances, he suggested how practitioners and judges may respectfully deal with unfair questions from the bench, and civility in the context of opinions, towards the losing party, towards the trial court and towards opposing counsel, as well as the perils of “cuteness” in opinions and briefs. For him, civility is limitless.
    1. Be civil even when questions are unfair. Sometimes judges ask questions that are unfair. What to do? “I know it is annoying. You get unfair questions as lawyers. There are times I want to say to my colleagues, for example, ‘it’s not a yes/no answer,’ but I can’t say that because I’m a judge.” Practitioners, he cautions, must try their best to be civil because “an annoyed judge is never, never a good thing.”
    2. Be civil in judicial opinions. For judges, civility is especially important as they model behavior for the country. “We have to be really careful in my view as judges to be civil during oral argument and to be civil in our opinions and to show respect for the losing party.” He explained that the “winning party will love you.” But we have to ensure that the losing party respects the system, and the decision as well.  The tone of opinions should be civil at all times, he emphasized.
    3. Be civil towards the losing party. “I want the losing party to at least know that we understood their argument, we heard it, and we respect their position, even though we disagree.” He continued, “that may not help in the moment.” But over time, he believes, it is beneficial for building respect for the judicial system and for being civil towards each other. “And, you know, our court isn’t always great at that, but I work very hard at that myself, and I think all judges do.”
    4. Be civil towards the trial judge and the other party, use adverbs sparingly. Keep a respectful tone for the court and the other party. “Trashing the trial Judge? Do not do it. In your appellate brief, it is a huge mistake." Always try, he says, to find a way to write respectfully. One way to improve civility, the justice suggested, is a tip from Justice Anthony Kennedy. “Justice Kennedy used to remind us to watch out for the adverbs. They can be the difference between a respectful tone and a tone that is off-putting.” This is true when dealing with the other party, not just the judge. “There’s a respectful way to deal with it, at least for me. And I think for all my colleagues, it is best to keep a respectful tone in the brief and oral argument.” The briefs and oral arguments of the Office of the Solicitor General provide concrete examples of respectful briefs and oral arguments. In them, he sees no sharp language, the type he sometimes sees in opinions and briefs. “Your tone is important when you are dealing with the court and the other party,” he cautions.
    5. Be civil when trying to be funny or cute. You might think you are as funny and as clever as Justice Scalia. But the truth might just be that there is Justice Scalia, then there is the rest of us. Accordingly, Justice Kavanaugh finds that attempts to be witty, clever, funny, or cute may instead come across as off-putting or rude. Keep that notion out of your brief and oral argument. Kavanaugh observes too much humor or cheekiness in briefs and judicial opinions. He is not persuaded that they work. “Frankly, it’s a little too much right now in judicial opinions and sometimes in briefs.”  “A good analogy? Great.” Analogies work well, he said, “if you can use an analogy to explain the case, do so.” It can increase civility and reduce cheekiness in the brief or opinion. This consideration is even more important for judges because “we’re modeling behavior for the entire profession and more broadly, we’re modeling behavior for the country.”

Justice Kavanaugh on the Court and Practice

Justice Kavanaugh also addressed civic engagement and education, plain error decisions, concurring opinions, stare decisis, the use of history in judicial opinions,  calls for a Code of Ethics for Justices of the United States Supreme Court and the most important quality of a judge.

Civic engagement and civic education. All of the justices engage in civic education as a way to build a more civil society, he said. The lack of civic education wreaks havoc in the administration of justice. To reverse this trend, the justices exercise civic engagement in diverse ways such as inviting high school students to the court and speaking to groups such as the Summit.

New issues on appeal appear to be here to stay. Judge Childs wondered why decisions come down on issues not heard by the lower court. The justice explained why these plain error arguments persist. “I think that as appellate judges, we have to be mindful of what was preserved in the trial court, what was preserved in the appeals court when you’re in our court.” But he observes that the Supreme Court and lawyers are “not always great at that. Lawyers are not great at it, because you might think the theory that you had in the trial court is no good or you might be new appellate counsel coming in trying to spin a new theory on appeal.”  

“I understand why you would want to do that. Sometimes you will get called on it sometimes, but sometimes you can get away with it. And I realize the frustration.”

Concurring opinions. Justice Kavanaugh emphasized that most of the decisions of the Court are unanimous. But the few where the justices disagree get a lot of publicity. Most of the cases, he said, do not breakdown along any predictable line-up, despite widespread belief. But as the justice reputed to be at the ideological center of the Court, Judge Childs asked how he decides to write a concurring opinion. He responded that he writes concurrences to (1) provide clarity, (2) identify open issues, and (3) provide additional reasons to reach the decision.

Stare Decisis. Throughout the history of the Court, Justice Kavanaugh said, “every justice has overruled precedent. Many of our nation’s biggest cases are overruled precedent. “No one says I will never overrule a precedent. You just have to figure out when to do so.”  He points to his extensive study of all the cases overruling precedent as helping him develop – “it is more art than science”—a coherent sense for when a precedent must go. See Ramos v. Louisiana, 140 S. Ct. 1390, 1411 (2020) (“Historically, moreover, some of the Court’s most notable and consequential decisions have entailed overruling precedent.”). Contrary to widespread belief, the present Court has less frequently reversed precedent than the Warren Court or the Burger Court.

Use of history. Courts have always used historical practice and text for constitutional interpretation. It is not new.

Code of Ethics. On the call for a Code of Ethics for Justices of the Supreme Court, Justice Kavanaugh expressed his “hope that we can take very concrete action very soon” towards establishing an ethics code for Justices of the Supreme Court. One week later, the Supreme Court promulgated its Code of Conduct for Justices.

What makes a good Judge?  Consistency is the most important quality of a judge. “Really, that principle of consistency is really important for judges.”  It is important for “engendering public respect for the court system, generally for our court in particular, we have to be consistent in how we apply the principles no matter who is in a particular case.”[NO1] [ko2]  Judges, he continued, are like umpires or referees. Judges should test themselves by asking the question “if the parties were flipped would I do decide this case exactly the same way?”

“If you cannot answer yes to that, you have a problem and you really should hold yourself to that standard of consistency,” he explained. “I try to live up to that as best as I can.”

Biographical Information

According to the information provided in the conference materials, the Honorable Brett M. Kavanaugh is an Associate Justice of the U.S. Supreme Court. A native of Washington, D.C., he is married with two children. He received a B.A. from Yale College and a J.D. from Yale Law School. Thereafter, he served as a law clerk for Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit, for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and for Justice Anthony M. Kennedy. He practiced law in the Justice Department, first in the Office of the Solicitor General and afterward in the Office of Independent Counsel. He later entered private practice in Washington. From 2001 to 2003, he was Associate Counsel and then Senior Associate Counsel to President George W. Bush. From 2003 to 2006, he was Assistant to the President and Staff Secretary for President Bush. He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006, and was nominated and confirmed to the U.S. Supreme Court in 2018.He is married to Ashley Estes Kavanaugh and they have two daughters.

The Honorable J. Michelle Childs is a judge on the U.S. Court of Appeals for the D.C. Circuit. Previously, she was a U.S. district judge for the District of South Carolina and a judge on the South Carolina Circuit Court. She currently chairs the AJEI Education Committee. A former beauty pageant winner, she graduated from the University of South Florida and the University of South Carolina School of Law. She also earned an M.A. from the University of South Carolina Business School and subsequently earned an LL.M. in Judicial Studies from Duke University.

Judge Childs practiced employment and labor relations law with Nexsen Pruet in South Carolina and became the first African-American woman partner in that firm. She also worked in state government, serving as the deputy director of the division of labor with the South Carolina Department of Labor and as a commissioner on the South Carolina Workers’ Compensation Commission. She is very active with various local, state, and national bar organizations, as well as community organizations.

Judge Childs is President-elect of the Federal Judges Association, a former Chair of the American Bar Association’s Judicial Division, and a former Secretary of the American Bar Association’s Labor and Employment Law Section. She is married with one child.

Kelechukwu Chidi Onyejekwe

Council of Appellate Lawyers

Kelechukwu Chidi Onyejekwe is a member of the Council of Appellate Lawyers.

Namosha Boyki

The Boykin Law Firm, PLLC

Namosha Boykin is the Founder and Managing Attorney of The Boykin Law Firm, PLLC. She may be reached via email at [email protected]

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