How Each Attorney Came into His/Her Case
The attorneys found their way to the Supreme Court differently.
Goldman represented a noncitizen in an immigration case focused on the effect of a prior misdemeanor conviction on potential cancellation of removal. He joined the case when it was still before the U.S. Court of Appeals for the Eighth Circuit, after dealing with similar issues before other courts of appeal. He prepared both the en banc and cert petitions.
Harris from Williams & Connolly entered her case after monitoring an administrative law issue of justiciability under the Retirement Act. After the Railroad Retirement Board and Fifth Circuit denied her client’s pro se claims, she stepped in to represent him.
Kassem and CUNY School of Law’s CLEAR Project handled a Religious Freedom Restoration Act case, where the clients alleged they were on the “no fly list” as retaliation, from start to finish. Kassem recounted that his “clients walked in the door in 2013, and the [U.S. Supreme Court] argument was in 2020.”
Narayan and the Sierra Club joined a FOIA and Endangered Species Act case at the cert stage. However, Narayan noted that the Sierra Club frequently litigates cases in the courts of appeals.
Shapiro entered a juvenile life without parole appeal at the U.S. Supreme Court cert stage. However, his employer, the MacArthur Justice Center, was involved with the case starting in the Mississippi Court of Appeals. Shapiro also worked on cert petitions focusing on similar issues before.
Preparing for a Remote SCOTUS Oral Argument
Kassem, who prepared for oral argument twice due to a postponed argument date, succinctly described his preparation: “I didn’t reinvent the process; I followed the same process that worked for me [before the Second and D.C. Circuits].”
Harris found that the adjustment from in-person to over-the-phone argument wasn’t too daunting because the Supreme Court has adopted a predictable turn-taking format, eschewing the free-for-all format of in-person oral argument. And Shapiro recounted that the format was easier to adapt to because he “didn’t have prior Supreme Court experience to unlearn and relearn.”
All five advocates mooted over the phone to prepare for the lack of visual cues. Goldman emphasized how “it’s really hard to overstate the importance of not having that visual feedback.” Kassem stressed how he “had to adjust to arguing blind.”
When asked about handling their stress and nerves for their first arguments before the Court, the panelists sang the same tune: be prepared.
“My only answer of how to deal with nerves is preparation,” recalled Kassem. “I still feel nervous on the eve of a big argument, up until the moment I start speaking, but preparation I think helps you make adjustments and improvise on the fly.”
“Preparation is a good way to alleviate stress, or at least to burn off your stress,” commented Narayan. “Expect to be stressed when you stand up. Until you open your mouth and words come out, you’re going to feel nervous.”
Each panelist did a minimum of three moots to prepare for argument. Shapiro, who credited the long list of attorneys and historians who assisted him, emphasized the importance of varied perspectives in setting up a moot panel: “I had such a community of people who drew in brilliance from so many breadths of experience.” Both Harris and Kassem expressed gratitude for Georgetown Law’s Supreme Court Institute, which Harris credited as “predictably, incredibly helpful.” In addition to the Supreme Court Institute, Harris felt prepared because she and her husband, a Supreme Court practitioner himself, “would talk about the statutory scheme of the Railroad Retirement Board while walking the dog.”
The Dreaded Landline
All five advocates had high praise for the high court’s clerk’s office after they received one-on-one help testing their setups weeks and mere hours before their arguments.
The Supreme Court has a strong preference for counsel to use a landline with analogue speakerphone. And the panelists each had their own unique story when it came to how they found a landline in this day and age. Narayan could only install the analogue landline at home and so argued from his guest bedroom. Harris argued from her colleague’s home, esteemed Supreme Court litigator Lisa Blatt, who argued the first remote Supreme Court argument of the pandemic. Goldman, with the Court’s blessing, proceeded without a landline. Shapiro replaced his office’s phone line and argued in his office’s hallway to avoid a loud air-conditioning unit. He said that “there were a number of surprises, but it all went well in the end.” Kassem used CUNY Law’s only landline, running it into a classroom where he argued while students took the delayed bar exam in classrooms around him. Kassem found it comforting that he and the students were all going through unique and impactful experiences.
Keeping a Familiar Setup
Although several of the advocates argued from the comfort of their own homes, they tried to replicate the environment of an in-person argument. Narayan emphasized that he “tried to make it feel like the arguments [he’d] done before.” And Harris shared some advice: “Do the normal setup, don’t diverge from it, [and] don’t mess with what you’re comfortable with to the degree possible.”
Dressing for Success
All five attorneys were grateful for Art Lien, who continues his decades-old practice of sketching the high court’s advocates. The panelists each submitted a photo of themselves in their remote courtrooms for his reference.
Goldman was “delighted to argue without a tie around [his] neck,” and Narayan was glad to not wear a suit as he argued in the early morning from the West Coast. Kassem, drawn in a hoodie, recounted that he “wore whatever made [him] most comfortable.” Harris wore a suit: “It helped me get into the role. I have an argument suit, so I wore the argument suit. . . . The dining room table became the argument table.”
The New Oral Argument Format
All the panelists reflected on the impact of the Court’s new seriatim questioning method. With the Court’s new format, counsel get a two-minute opening colloquy, followed by each justice asking three minutes of questions and often capped off with a one-minute wrap-up from each side.
Narayan described it as quite different: “The justices can’t interact with each other, which is actually quite different.” On that same note, Harris recalled: “It’s less conversational, and somewhat two ships passing in the night. . . . It’s a fun challenge because it presents a different challenge than the traditional format.” And Kassem noted that “the main adjustment I had to make was based on my own colloquy with the justices. I had prepared a few different versions”; but he observed that argument “felt really comfortable and conversational once it actually started.”
Goldman noted that “it still very much felt like a Supreme Court argument,” but more of his friends, family, and colleagues were able to tune in. “In the end, you’re calling in to a conference call: it’s just the Supreme Court clerk . . . and the chief justice on the other line.” Goldman acknowledged that the three-minutes-per-justice style of questioning can lead to a different kind of oral argument, where justices have an opportunity to make their views known more than they perhaps otherwise would.
Remote Counsel’s Table
Although the panelists were almost all alone physically, they had lifelines ready if needed. Goldman had his counsel team at his fingertips by way of a virtual chat app, while Harris had Lisa Blatt in person and an associate attorney available remotely as a “break-glass-if-needed” option. However, the panelists seemed to agree with Kassem’s sentiment that once the argument started, it was a solo endeavor.
Advice for Students and Aspiring Appellate Attorneys
Appreciating the breadth of experience on the panel, Harris commented: “There is not just one prescribed path if this is what you want to do.” She also noted the importance of finding mentors: “I wouldn’t have gotten the chance if someone didn’t help me.” Goldman, who recommended clerking in any state or federal court, advised young lawyers to “look for any and every opportunity to write a lot and work with people who are fantastic writers. . . . See what they do and how they edit your work, and try to internalize those lessons.”
While Shapiro noted that “it’s a particular challenge in the public-interest sector to have an appellate career because you’re trying to hit a small target within a small target,” both Shapiro and Narayan expressed optimism that the path is becoming an easier one. Narayan added that “if your interest lies in particular places, you’re likely to become an appellate lawyer as a function of necessity,” noting that his natural interest in the Clean Air Act brought him before courts of appeals.
Kassem concluded by noting that the appellate and Supreme Court bars skew male and White and emphasized that “the bar needs to catch up.” Kassem also implored young attorneys and law students to “look for places where you’ll have supportive mentors. . . . You can learn anything.”
With the last word, Harris offered what we consider to be excellent advice whether you are a law student or an aspiring appellate lawyer: “Figure out what you’re good at as a lawyer and what you enjoy. . . . Just because you’re not on law review doesn’t mean you can’t clerk and can’t become a good advocate. . . . Knock someone’s socks off with your writing.”
