January 01, 2018

Ten Important Considerations for Supreme Court Advocacy

How one makes the most of this vital, critical, and final phase of a Supreme Court case.

Theodore B. Olson

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A Supreme Court oral argument is the apex of the appellate process. With rare exceptions, each side has a mere 30 minutes to present its case to the justices. Except where the United States, through the Office of the Solicitor General, participates as amicus, argument time is not divided between advocates for either side. This is the hour when it all comes to a crescendo in the 75 or so cases the Supreme Court hears every year. Individual justices have said that minds can be and often are changed during the argument (Justice Breyer recently said that his views are influenced in up to 50 percent of oral arguments), so these minutes are precious and exceedingly important.

How does one make the most of this vital, critical, and final phase of a Supreme Court case? I am constrained by space limitations here, but there is no shortage of more lengthy and worthy analyses of the subject. For those interested in a deeper immersion, among the oracles I suggest consulting are the following:

  • Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges
  • Michael E. Tigar, Persuasion: The Litigator’s Art
  • David C. Frederick, Supreme Court and Appellate Advocacy
  • Frederick Bernays Wiener, Effective Appellate Advocacy (the ABA’s Litigation Bookshelf edition)
  • Sir David Napley, The Technique of Persuasion

Rather than attempt to summarize that insightful advice with my own gloss, I offer 10 considerations that I consider important in preparing for and executing a Supreme Court argument. Many of these are common sense and simple good judgment, but they may be useful reminders for anyone facing the daunting prospect of a Supreme Court argument.

1. Integrity

One of the best pieces of advice I have received concerning Supreme Court advocacy was given to me when I took my oath of office as solicitor general of the United States in the chambers of Associate Justice Clarence Thomas on May 31, 2001. His words to me are indelibly etched in my memory: “Never lose your credibility with this Court.”

The justice was articulating an aspect of the Greek principle of ethos—the character of the speaker. (Every aspiring advocate should study the works and lives of Aristotle, Pericles, Demosthenes, Cicero, and other Greek and Roman orators, especially the concepts of ethos, pathos, and logos.) The integrity of the speaker is central to a persuasive argument. In the Supreme Court, as in other contexts, it is essential for the advocate to be believed. Credibility is an aura formed by an advocate’s entire professional life—before he or she ever sets foot in the Court—by the tone and context of the briefs, by what happens in Court that day, and by the residual impact of previous presentations.

If a lawyer has exaggerated, used hyperbolic or tendentious language, omitted important facts or distinctions, misstated the law, or shaded the truth, that lawyer’s every expression will thereafter be suspect and will face an intangibly higher burden of persuasion. The advocate’s integrity, veracity, credibility, and character are foundational elements of every argument.

Justice Thomas’s advice was a powerful reminder of a principle that I had learned early (on a college forensics team prior to law school) and often during my years of practice before being appointed as solicitor general. Because of his powerful, no-nonsense admonition, I made a concerted effort as solicitor general and afterward never to allow any written or oral statement that I made to be less than completely accurate and verifiable. If I wasn’t sure of a point, I would not make it or would express it in words that conveyed accurately any ambiguity or reservations. It is inevitable that if you overstep, your opponent will catch it and use it to take advantage of you. More fundamentally, of course, it is impossible to fool the nine justices and their 36 clerks. You cannot fool all of these people any of the time. For purely pragmatic reasons, never take that chance. Beyond that, you owe it to yourself, your profession, and the judiciary to live by these principles.

That credibility—and consistency—served me well. Years later, long after I left the solicitor general’s office, Justice Souter, then retired, confided to me that whether he agreed or disagreed with my argument, he and his colleagues always trusted that I would be honest with them—and that they could rely on my representations.

An advocate must start and end with that level of credibility. And never risk losing it. Once a cloud of doubt is created, it can never be truly dispelled.

2. Distill Your Argument to Its Essence

I try to develop a succinct summary of my argument in one or two sentences. This is simpler to say than to do, but it is a necessary discipline. Start with a paragraph or two—this should be done no later than when writing the briefs—and then refine it to the fewest words possible. It is vital to the formulation and execution of your oral argument.

I employ several exercises to aid in developing the best distillation of my argument. My son, who was a sophomore in high school at the time, asked me about an upcoming argument: “Dad, what does it mean if you win?” That is what it is all about. Can you answer that question in a sentence or two? If not, you have probably not given your case the intense analysis required to make a cogent, persuasive argument.

Another approach is to conceive of the lead sentence for the next day’s morning paper reporting on the decision in your case. “The Supreme Court yesterday decided that. . . .” Journalists have to compress the gist of a decision into the lead sentence or two. Imagining what those words will be—or what you wish they will be—will help focus your thoughts.

I was once asked by a partner who had a banking client to file an amicus brief in a complex bank regulatory case. It took two frustrating meetings before we could manage to express in a single sentence the point we wanted to make to the Court. My partner knew which side he hoped would win, but he struggled to find a simple, compelling reason for why that outcome was important and correct. Until we could say in a few words what it was all about, we were not going to be able to write a coherent, persuasive brief. Try writing it the way Hemmingway would. Or Churchill.

I think of this thematic sentence as the prism through which I want the justices to see the case they are about to hear. To that end, I work rigorously on the first sentence (or two) of my argument. If I can get it out—without being interrupted by the justices’ inevitable questions—it helps to set the tone for the argument, often prompts the first few questions, and gives me a baseline to which to return during the give-and–take of the argument. The justices’ questions will invariably pull you away from your theme. Tug the dialogue back, if you can, to your side of the playing field.

Here are a few examples from actual cases in which I was able to get my central point across before the onslaught of questions. From the first of the two 2000 presidential election arguments:

Two weeks after the November 7 presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida’s legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7th. These laws [had] been formulated by the Florida legislature pursuant to an express delegation of authority, to wit, by the United States Constitution.

From the second argument, 10 days later, in Bush v. Gore:

Just one week ago, this Court vacated the Florida Supreme Court’s November 21 revision of Florida’s election code, which had changed statutory deadlines, severely limited the discretion of the State’s chief election officer, changed the meaning of words such as “shall” and “may” into “shall not” and “may not,” and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this Court’s December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida’s election law. That decision not only changed Florida election law yet again, it is also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.

From Citizens United:

Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech. Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.

Pulling this off is not always easy. I have often been interrupted before I could get those words out. On two occasions before I could even begin with the words “Mr. Chief Justice, and may it please the Court.” But if you can get to your theme early in the argument, it will help set the tone of the argument and, hopefully, focus the justices’ attention where you want it. You might even dare to be a touch provocative—tempt the justices to ask a hard, core question—and be ready with a direct, forceful response.

Accomplishing my objective was more difficult in the first marriage equality case to reach the Supreme Court in March 2013. The justices were interested in a subsidiary jurisdictional standing question, which would allow the Court to avoid reaching the core constitutional issue. The chief had interrupted my opponent, counsel for petitioners, with questions about standing for several minutes before he could turn his attention to the constitutional issues. As respondent, I knew that I could win the case by prevailing on the standing issue and that the chief would take me to it as soon as I took to the lectern. But I knew that the world was listening to the argument (the audio recording was broadcast to the public immediately after the argument), and I wanted to make a strong statement to the justices—particularly Justice Kennedy, who we perceived as a decisive vote—and to the public as to how important the constitutional issues were to millions of people. I wanted everyone to know that this case was about human rights, equality, and dignity. So I verbally anticipated what I knew would be coming from the chief so that I could inject at the outset what I felt the case was really all about. When it was my turn, this is how it went:

Mr. Olson: Thank you, Mr. Chief Justice, and may it please the Court:

I know that you will want me to spend a moment or two addressing the standing question, but before I do that, I thought that it would be important for this Court to have Proposition 8 put in context, what it does. It walls-off gays and lesbians from marriage, the most important relation in life according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.

Chief Justice Roberts: Mr. Olson, I cut off your friend before he could get into the merits.

Mr. Olson: I was trying to avoid that, Your Honor.

Chief Justice Roberts: I know—

(Laughter)

Chief Justice Roberts: Well, I think it’s only fair to treat you the same. Perhaps you could address your jurisdictional statement.

As you can see, the chief promptly pulled me into the jurisdictional standing issue (on which the case was ultimately decided, thus reestablishing the rights of tens of thousands of Californians to marry the person of their choice), but not before I was able, thanks to his good nature, to state as clearly as I could, in very few words, the fundamental principle about what it meant to deny marriage to gay people. I was able later in the argument to return to and pound that theme. Two years later, the Court, in an opinion by Justice Kennedy, adopted the constitutional principle we had been advancing.

One final aspect of your thematic statement: You will surely have two or three important subsidiary points. Make sure you have them foremost in your mind, and do not fail to get them out during your argument. It must be a small number of very central points, or they will be lost in the turmoil of the argument. But once you have determined what they are, be very sure they are heard that day, in answers to questions, during any slight opening, or in your closing.

3. Nine Courts

The Supreme Court is, essentially, nine different Courts. While there is one chief justice (of the United States, not “Chief Justice of the Supreme Court”), he only has one vote. The justices these days are generally appointed when they are in their early 50s. They will typically serve for 25 years or more on the Court and have each served on federal appeals courts for several years prior to their appointment. They are very smart, very experienced, and very independent, and each has pronounced views and well-developed jurisprudential philosophies. The notion that any justice will vote a certain way because of a colleague’s vote is wrong. There are nine individual votes there, and you have to get five of them.

For those reasons, it is important to be familiar with how each justice approaches and has ruled on a particular subject, not just with the Court’s applicable precedents. And this may predispose an individual justice in different directions in any particular case. For example, Justice Breyer is an expert on antitrust and administrative regulation, but what might pull him one way in a price-fixing case might be balanced by how he feels about deference to administrative agencies or the force of precedent. Justice Ginsburg is an expert on copyright and deeply versed in civil procedure. But what might influence her in one direction with respect to class actions may be overcome by her convictions and personal history in the field of gender equality. Concepts such as standing or judicial restraint might be tempered by attitudes regarding federalism or preemption. A 5–4 decision in one case might easily become a 5–4 or 6–3 decision the opposite way in a similar case, depending on secondary issues or ideological divides.

For this reason, before each argument, I prepare (with the assistance of very able young lawyers in my firm) a separate analysis of each justice and how he or she might see the case. Given the issues in a particular case, what might their prior decisions, votes, writings, or life experiences reveal about how they might react to the upcoming case? Knowing what you can determine about these things will help you develop your strategy for securing five votes in your case. And it will help you anticipate which justice might ask which questions. If you know that Justice Kennedy is highly sensitive to discrimination, equality, and individual dignity, anticipate questions from him in that vein in an appropriate case. If you have a separation-of-powers case, be ready to hear from Chief Justice Roberts.

You may learn through this process that a given justice is just not going to vote for you. Don’t risk alienating a potential favorable vote by what you might say to please a justice who is hopelessly against you.

4. Tone, Tempo, Poise, Presence

Nearly everyone who has observed arguments in the Supreme Court has seen cringe-worthy examples of poor techniques, style, and language. These performances waste an oral argument. It doesn’t mean that the offending lawyer will necessarily lose. The justices will decide the cases on the merits. But these mistakes mean missed opportunities to correct misconceptions, turn a pivotal issue the right direction, reduce the damage potentially caused by an adverse and hostile opinion, and minimize the consequences of a defeat.

I will mention a few of the more egregious, easily avoidable, blunders that I have seen.

Posture, appearance, and decorum matter. It may seem obvious, but wear clothing that does not draw attention and fits the customs of the Court: dark suits, white shirts, inconspicuous adornments. Stand up straight and stand still behind the lectern. Don’t lean on the lectern or wave your arms or hands. I watched one prominent law professor lean on the podium as he might have done in a classroom. It looked like he was addressing students—and the justices did not like it.

Have a respectful conversation with the justices. The advocate should talk to the justices in a tone that reflects an intellectual discussion of legitimate issues between equals. Of course, the advocate is not, in that context, the equal of the justices; but an earnest, conversational demeanor and style is the best approach. That means not reading or memorizing one’s argument. Either will result in an almost immediate interruption.

Don’t lecture or hector the justices. The justices are human—they care as much as anyone about the little guy, the injured victim, or the casualty of a bad decision below. But that is not their job. They do not want to be distracted by such theatrics from their responsibility to interpret laws as they are written, not as they should have been written, or correct constitutional injustices that the framers overlooked. This does not mean that these subjects must necessarily be avoided, but they must be handled with tact, discretion, and delicacy.

Control the volume and pace of your speaking. Speech must be heard to be understood. However, excessively loud arguments are off-putting. The microphone in the Court is very sensitive, so it does not require shouting; but mumbling or excessively muted speech will have the justices cupping their ears. Do not make it difficult for the justices to understand what you are saying.

It is also a commonplace that, as we get nervous or begin to worry about the amount of time remaining in the argument, we will speak too fast. It might help to write the words “SLOW DOWN” on any notes you take to the podium.

Sarcasm, flippancy, and amateurish attempts at cutesy humor are not well tolerated. Humor is for the justices. No advocate can get away with planned humor, and only the most exceptional and experienced advocate can manage a soft, self-deprecating, situational bit of humor. Don’t try it. The potential costs vastly exceed the very unlikely benefits. If you expect the justices to take your arguments seriously, act like it.

Avoid any sign of disrespect for your opponent or for the court below. Let the justices come to their own conclusions about that. You may “respectfully” disagree or correct an adversary’s error, but be very careful about it.

Help the Court see the error or bias of the court below without being overt or rude. The justices are inherently sympathetic to their judicial colleagues. Any disparaging words about a fellow jurist will turn the justices against you immediately.

Watch your time. If you are the petitioner, be absolutely sure you save time for rebuttal—which can be the most effective part of any argument. When the white light goes on, you have five minutes. Exit gracefully as soon after that as the opportunity presents itself, asking the chief for permission to reserve the balance of your time for rebuttal. Be polite, but if a persistent questioner is eating up your time, give a very short response and look at the chief and ask that the remaining time be reserved. He’ll help. He knows what it is like. He argued 39 cases as an advocate. He realizes how important rebuttal time can be.

I once saw one of the nation’s most experienced advocates run through his 30 minutes as petitioner’s counsel until the red light went on. He looked up at Chief Justice Rehnquist and said, “I had intended to save time for rebuttal.” The chief responded: “Well, you didn’t.” That was that.

Try, if you can, as either petitioner or respondent, to be ready to close before that red light comes on, with maybe one or—at most—two sentences, or a short quote from a key decision. End on a high note. The most important thing you say is your opening; the next most important is your closing.

Arrange to keep track of your own time—perhaps with the assistance of your second chair. Do not look up at the clock and never ask the chief justice how much time you have remaining.

5. Know the Record

The justices will frequently ask a question about the procedural history of your case, inquire when or how a point was raised or preserved below, or inquire where support for a particular point may be found. These questions are difficult to anticipate, but it is a good idea to prepare your own list of likely potential record points and corresponding citations. A spontaneous response to a question like that will impress the justices and enhance your credibility.

If you do plan to quote something from the record, be absolutely sure you know where it may be found, and give the cite as you introduce the point. The justices will often turn to that material, so pause long enough for them to find what you are about to quote. It can be frustrating to a justice to want to read the material to which you are referencing but not be able to find it before you launch into it.

6. What to Take to the Lectern

There are some superb Supreme Court advocates who argue without notes of any sort. Deputy Solicitor General Michael Dreeben and former solicitor general Paul Clement are two of the best. But few of us can or should try to do that. Most advocates take some notes—a short outline, key points, a sentence or two to open or close, citations to the record—to the podium. Most of us find that we will seldom need to refer to the notes or outline in front of us if we prepared thoroughly, but they are there just in case—a comforting crutch.

The best advice is to keep your argument materials to a minimum. Binders can bump against the microphone, turning pages is a distraction, and the podium is relatively small. Less is more.

7. Questions

You must listen to the justices’ questions—or comments—and never interrupt. When you hear a justice’s voice, stop in mid-sentence. Listen to what is being said—and answer as directly as you can. If you don’t know the answer, say so.

Be prepared to be interrupted throughout your argument. Years ago, an advocate could give something of a prepared argument with few interruptions. Listen to an argument by the late solicitor general Erwin Griswold in the 1960s, for example. But, beginning with Justice Scalia’s appointment, every justice except Justice Thomas (who has his reasons for remaining quiet most of the time) is a frequent questioner or interrupter. Your flow will be broken from the moment you start, and after that, it may feel like a firing squad until you sit down. For example, in an argument I had involving the arcane Tonnage Clause of the Constitution, I was interrupted 78 times in 30 minutes. You just have to keep your poise and hope you can segue from answers to questions to your central points.

8. Moot Courts

Some lawyers seem to feel that they don’t need them. My personal opinion is that they are an absolute necessity. Several reasons:

(a) They prepare you by exposing you early to hard questions. You can try out your answers in a moot and, after the moots, refine your answers and make them more crisp and responsive. No one person can anticipate what might be asked during an argument, but two or more moots with different “judges” should prepare you for all but the most unpredictable questions.

(b) Moots will force you to discipline yourself to respond to hostile questions with poise and discipline. Moots will help you learn to take and shake off a punch.

(c) Moots force you to prepare earlier than you would otherwise. Which means more time to prepare. I am nearly as intimidated by the prospect that I may not seem prepared at a moot in front of my colleagues and clients as I am by the forthcoming argument. I schedule the first moot 10 to 12 days before the argument and a second moot two to three days prior to the actual argument. This means early preparation and enough time between the last moot and the argument to absorb the lessons learned and sharpen your preparedness.

(d) You will learn from the mooters which arguments don’t sound good—or have unanticipated complications. Listen to what they say. In the end, you have to decide for yourself what works. But I guarantee that your colleagues will make you better.

9. Addressing the Justices

Unless you really know the names and faces, don’t try to address the justices by name. In the Bush v. Gore argument, one of the lawyers first addressed Justice Stevens as Justice Brennan (who had retired years before) and then Justice Souter as Justice Breyer. These were embarrassing distractions and prompted a sarcastic question moments later from Justice Scalia, who preceded his question with a pointed “I’m Scalia.” Don’t risk it. You can simply say, “Your Honor.”

10. Enjoy the Experience

This is the Super Bowl. You are in it. Enjoy every moment.

Preparing for a Supreme Court argument can be tense, anxiety-filled hours. If you are human, you will be nervous. Anyone who says he or she is not nervous before a Supreme Court argument is either lying or not experiencing the emotional adrenaline that, if put to use, will click in and make the argument better, more crisp, and energize one’s brain.

You will worry about questions you haven’t anticipated, case names you’ve forgotten, tricky issues for which there is no easy answer, whether you will keep your cool or embarrass yourself in front of everyone. This is all perfectly natural.

When I was standing in the Court immediately prior to the Bush v. Gore argument, I turned to see the courtroom filled with journalists, politicians from both parties, the leaders of the respective presidential campaigns, lawyers from all over the country, dignitaries, and celebrities. We’d been fighting for five weeks to determine who would be the 43rd president of the United States. The world—literally—was watching and listening. The argument and the Court’s decision would determine the future of the nation for four—or even eight—years. Everything was riding, or so it seemed, on what I said and how I handled the argument. Anyone would be anxious. I certainly was.

At that point, I paused, took a deep breath, and looked out at the eagerly waiting audience. I asked myself whether I would rather be standing there about to step into the arena or seated with the audience watching the unfolding drama.

You know the answer. That is what we dream about when we dream about being a lawyer.

So, when your turn comes, ask yourself the same question. If you’d rather be a spectator, you’re in the wrong career. Otherwise, drink it in and plunge into an experience you’ll never forget.

Theodore B. Olson

The author is with Gibson, Dunn, and Crutcher, Washington, D.C.