Recently, I sat at counsel table before the U.S. Supreme Court in Devillier v. Texas. In the wake of the argument, I’ve interacted with dozens of people, both lawyers and nonlawyers. They’ve all asked—in hushed, reverent tones—what appearing before the Supreme Court was like.
I’ll admit that I struggle with the question. I didn’t argue before the Supreme Court. Bob McNamara did. And he argued with such style and grace that the justices—after an initial round of firing-squad-style questions—permitted him to give an uninterpreted monologue on why the Fifth Amendment gives property owners like the Devilliers the right to sue Texas for refusing to pay just compensation. Sitting at Bob’s elbow during the argument, and at his metaphorical elbow during all the preparation, provided me with invaluable insight into the dynamics of a Supreme Court case and excellent appellate advocacy.
Here, though, I’ll attempt to tell you about the experience of appearing before the Court, a privilege that only a small group of attorneys enjoys each year. Rather than share oral argument tips or tricks (with which this committee is already familiar), I’ll share my observations and impressions to provide you with a window into a morning before the Court.
From the moment I woke on the day of the argument, the gravity of the day was palpable. Several inches of snow had blanketed Washington, D.C., the night before. Other than the Supreme Court—which plays by its own rules—the federal government was closed for the day, and schoolchildren were enjoying a snow day. D.C. was quiet and pristine, seeming to hold its breath.
To avoid any logistical complications that morning, Bob and I walked through the snow and the silence the few blocks from our hotel to the Court. That short walk took us up First Street, past the Library of Congress, and between the U.S. Capitol and the Supreme Court. I couldn’t help but observe how the walk paralleled our case. After our team had completed the written advocacy—which required extensive research into the history of the Takings Clause—we left the land of scholarship to walk between Congress and the Supreme Court. Ultimately, we would enter the Supreme Court and its courtroom, effectively putting our backs toward Congress as we asked the Court to hold that the Just Compensation Clause is enforceable without any congressional action.
But, before entering the Court, Bob and I passed two lines of people waiting outside the building in the cold. With only 439 seats in the Supreme Court’s courtroom, in-person access is limited. The first line, running along the East Capitol Street side of the building, consisted of members of the public seeking the 50 or so public seats. On the other side of the building stood the second line, composed of lawyers admitted to the Supreme Court bar who can access special seats. Bob and I bypassed both of these lines, joining up with the two other members of our team who would sit at counsel table, Andrew Ward and Daniel Charest.
Once inside the Court, the sense of having privileged access increased. Court personnel, who were simply going about a typical work morning (albeit a morning with oral argument), bustled around. After passing through security, our team waited in the cafeteria until we could check in with the clerk’s office. It was a rare opportunity to be in the same room as Justice Kagan’s frozen yogurt machine.
The wait was short, however. Soon we were escorted through a locked gate to the clerk’s office and on to the Lawyers’ Lounge, the staging room for lawyers appearing before the Court. On our way, we passed gilded frames of people who I can only assume were former Supreme Court justices as I did not have time to study the pictures. We were walking through history while our own role in that history loomed ahead.
Before long, we arrived at the Lawyers’ Lounge, and I could not help but feel humbled to join the tradition of lawyers who waited in that room, the proverbial wings of the Supreme Court’s stage. The four groups of lawyers appearing in the two cases scheduled for argument that day quickly claimed portions of the room, creating informal huddles.
A few minutes passed, and then Scott Harris, the clerk of the Supreme Court, entered to remind us all of the rules. Reciting instructions that I am sure Mr. Harris has delivered hundreds of times, he still spoke with a warm tone and greeted the arguing advocates by name. He distributed paper tickets to each of the attorneys. My full name had been carefully handwritten in blue ink on the top of my ticket. “Do not lose your ticket or you will not be allowed in,” Mr. Harris warned. All the hands in the room, mine included, gripped their three-by-four-inch scrap of paper a bit tighter at the admonition.
Then, it was time. Equipped with only a pen, notepad, and stack of Post-it notes, I joined the attorney line as we filed out of the lounge, into the Great Hall, and through security a second time (electronics are not allowed in the courtroom). Once through, I faced the plush red curtains marking the courtroom door with a sense of surreal anticipation. Although I had walked through these curtains before, this was the first time (and perhaps only time) I would do so as an attorney appearing before the Court. I took a deep breath, trying to soak it all in while not appearing like a complete amateur, and walked inside.
I was immediately struck by the contrast between the cavernous, echoing marble Great Hall and reverent, heavy silence of the carpeted and curtained courtroom. Few people spoke; when they did, they whispered. As I walked toward the counsel tables and the lectern, I was reminded of how close the attorneys sit—to the justices and to one another. That closeness, coupled with the relatively small size of the courtroom, created a sense of intimacy that belied the weightiness of the moment.
The feeling of intimacy continued when the justices entered and took their seats. All too often the legal community, me included, gives the justices superhuman status. One almost expects to feel a gravitational tug when entering the justices’ orbit. After all, the justices have immense power through the Court’s decisions and are considered the pinnacle of the legal profession. But, from my seat at counsel table, I could better see the justices as individuals. Chief Justice Roberts’s blue eyes twinkled as he admitted new attorneys to the Supreme Court bar. Justice Jackson sported a collar reminiscent of Justice Ginsburg’s. Justice Barrett, who had curled her hair that morning, leaned forward when asking questions, directly engaging with the advocates. Justice Alito, by contrast, leaned back as he steepled his hands in thought. It was a stark reminder that for all their power and status, the justices are nine humans, each with their own preferences and idiosyncrasies.
But coming face-to-face with the justices’ humanity did not change the magnitude of the situation. Bob stood at the lectern with nothing but his wits and two pages of notes as the nine justices each tested our argument—probing the nuances and wrinkles. Months of meticulous research, countless practice sessions, examination of every aspect of the case, and study of anything that could be relevant boiled down to Bob’s solo performance on the legal balance beam at the legal profession’s Olympics. Our team could only sit quietly, rooting for him to land with practiced perfection.
And then it was over. Without delay, the justices disappeared to their chambers, and court security ushered people toward the exits. Bob and the rest of our team descended the courthouse steps from the mountaintop of Supreme Court argument to everyday lawyering and regular life.
While our team, especially Bob, had conquered a difficult professional peak, very little of that climb was spent at the top. Indeed, by the time the Supreme Court argument arrived, 95 percent of the work was done. The briefs were already submitted. The positions were firmly established. It was a powerful lesson to enjoy the climb rather than the few minutes at the rarely reached summit.
Although I have returned to scaling my usual cliff faces—drafting a complaint, poring through discovery, and writing a brief—I am grateful for the opportunity to reflect on my experience and share my observations with the ABA Appellate Practice Committee. I hope that my account helps demystify what it was like to spend a morning in the United States’ highest legal arena.
