Appeals in the US Supreme Court

In early December, Brendon, Dana and I traveled to St. Thomas to address the annual meeting of the Virgin Islands Bar Association, Brendon on ethics, Dana on amicus curiae briefs and I on handing appeals in the U.S. Supreme Court.

I have filed many petitions for certiorari but none of mine were granted. I have also filed many oppositions to such petitions. One of those petitions was granted, Kelo v. New London, 545 U.S. 469 (2005), which became a major statement on the right of government to condemn property under the “public use” language of the Fifth Amendment takings clause and convey it to another private party for the purpose of economic development.

While the odds of any random petitions being granted is around 1%, the number is misleading because the odds of most petitions is about zero while the odds of a certain number of petitions is very high. The odds in my case changed from about zero to very high during the petition process the moment the Michigan Supreme Court disagreed with the Connecticut Supreme Court, which had held that New London’s economic development plan complied with the Fifth Amendment. The Michigan Court held that a similar economic plan in Michigan violated the Fifth Amendment. And so my opponent’s petition was granted.

The day the petition was granted, there were four things I needed to attend to at once:

First, I needed to prepare for the barrage from the press. The press should not be ignored or only your opponents’ position may be in the news. I discussed with my client who should respond. In my case, I referred all questions to the City.

Second, I needed to prepare for the barrage of potential amici who planned to file a brief. The Court is very liberal about allowing such briefs, so opposing them serves no purpose. The real problem is dealing with the friendly ones. They fall into two categories: those briefs that will actually be helpful and those that won’t. One of those who reached out was an organization that was held in high regard, supported the City’s position, and had experience with filing amicus briefs. They acted as the amicus coordinator, so each helpful brief would focus on a separate aspect of the issue and each unhelpful brief could hopefully be sidetracked onto a minor point or eliminated by joining another’s brief.

Third, I needed to contact the Solicitor General’s office to encourage the government to support our position. As it happened, the opposition did the same thing. At the end of the day the Solicitor General stayed neutral. Had he sided with us, the odds of reversal would have gone down from the normal rate of 70% to 50%. So my odds of prevailing were about 30%. But at least the Solicitor General didn’t side with Mrs. Kelo, which would have reduced my odds even further.

Further, I needed to contact Georgetown Law School. They have a wonderful room that is a mini-version of the Supreme Court and they will supply a skilled panel for mooting purposes to the first side that calls. In my case, I was the second side to call, so I got the room but I had to supply my own panel, which turned out to be fine.

Thereafter the petitioner had to file her brief, followed by mine, followed by an optional reply. There is nothing leisurely about this process, and the oral argument is scheduled during the briefing process. Other than hurrying, the main thing that distinguishes a U.S. Supreme Court brief from other appellate briefs is the lack of citations to any court other than the U.S. Supreme Court. The Justices normally are not interested in what other courts think. What they want to know is what their own cases say. A decision in the 1840s by Roger Taney, of Dred Scott v. Sandford fame, will be of more interest than one last year by a well-respected Circuit Court judge.

In the U.S. Supreme Court the justices generally have well-known jurisprudential views that make their reaction to a particular appeal somewhat or even highly predictable. In Kelo, both opposing counsel and I reached the same conclusion: he likely had Rehnquist, Scalia and Thomas on his side, and I likely had Stevens, Souter, Ginsburg and Breyer on mine. That conclusion affected how I handled oral argument. With only O’Connor and Kennedy in play, I needed to focus on convincing one of them. They both are fact-oriented, so I focused on the facts. I lost O’Connor in the end, but I won with Kennedy—on the facts.

The corollary to focusing on O’Connor and Kennedy was not focusing on the others. I knew unfriendly Scalia, with his lengthy expounding on his views, and a friendly Breyer, with his lengthy hypotheticals, would be a problem. The best way to handle them is to give the quickest possible answer (without, of course, offending Breyer) and move on.

Fortunately for the city, the Supreme Court ruled in its favor 5-4 and my job, which was to get 5 votes, was at an end.

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