Mimesis Law
29 May 2020

Can There Be Vanity *And* Expertise At SCOTUS?

August 25, 2016 (Fault Lines) — Andrew Crespo’s suggestion that the Supreme Court put together an “expert” Supreme Court defense bar to help argue criminal cases before The Nine Eight has ruffled a few feathers. Particularly galling were the comments of Justice Kagan:

“Case in and case out,” she said, “the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.”

and Justice Sotomayor:

“I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” Justice Sotomayor told Reuters in 2014.

Josh took particular offense to the implication that mere mortal lawyers who weren’t Supreme Court experts weren’t ready for prime time; and suggested that the problem lay elsewhere.

So all of these crappy opinions stem from vain, egotistical criminal lawyers who refuse to step aside and let a friend of Alito’s wife real expert handle the case? Wrong. The Supreme Court may want its echo chamber, but actual defendants need the opposite. They need real lawyers. People who have represented real clients. Someone who has gotten up in the middle of the night and gone to the jail. Lawyers who have stomped around crime scenes and yelled at prosecutors and argued with trial judges and just lawyered.

It’s true, the whole idea of an “expert” Supreme Court defense smacks of lawyers’ obsession with pedigree, which gets worse and worse the higher ones goes in the profession. That said, appellate advocacy is a different ballgame than trial advocacy. Take, for example, cross examination. The fact that you can make a testilying officer faint on the stand, in between sessions of editing Pozner and Dodd, doesn’t mean a whole lot when being peppered with questions from on high.

The same goes in reverse. Take Jeffrey Fisher, the lone occupant of intersection of the Venn Diagram whose circles are labeled “Supreme Court expert” and “Criminal Defense Lawyer.” This is the guy who won Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Riley v. California. Yet, there’s nothing in his resume that suggests you would want him as first chair in a murder trial. Not because he isn’t brilliant or capable. But you wouldn’t let anyone try a murder case until they’ve cut their teeth on lesser cases.

The Lord High Admiral was also wary of Crespo’s idea, saying:

Crespo’s solution is to have some entity, like the ACLU, argue as a super amicus on behalf of the defense side, but that scares me more than having no “expert.”  Sorry, kids, but the ACLU doesn’t speak for my clients, and is quite often on a very wrong path for the defense. The NACDL might be closer, but still, nobody elected them the final voice of criminal defense. I’ll argue my own position, thank you very much, rather than defer to either what the ACLU or NACDL thinks is the right outcome.

To this I would add, there is no one who knows the facts of the case than the original defense lawyer, assuming basic competency. And it’s a hell of a lot easier to teach a trial lawyer appellate advocacy than it is to teach the nuts, the bolts, the guts, of the case to an appellate lawyer who only has the trial transcript.

That said, it doesn’t have to be either/or. Crespo’s suggestion was that a counterweight was needed to balance the expertise of the Solicitor General’s office, who argue Supreme Court cases like it’s their job…because, well, it’s their job. It wouldn’t necessarily be the ACLU or NACDL that would be the “super amicus.” Crespo was only using them as examples. A better model would something like a division of the federal defender’s office, specifically designed as a mirror image to the Solicitor General.

As always, the devil is in the details. If this hypothetical organization is simply there to, as Josh puts it “pat each other on the back for being in the club,” it won’t work. But it doesn’t have to be that way. When state prosecutors get a case in the Supreme Court, they typically argue along with, not instead of, the Solicitor General. So long as our hypothetical super-amicus played a similar part, and didn’t look down their noses at the hicks from the sticks who get their hands dirty with actual defendants, it could work.

I’d give up two toes and a non-thumb finger to argue a case before the Supreme Court. And after I have kids, I’d consider giving up the leftward half of another portion of my anatomy.[1] But if I ever get there, I wouldn’t mind having someone else who knows the ropes riding shotgun.

[1] Kidney. Get your mind out of the gutter.

6 Comments on this post.

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  • Jeff Gamso
    25 August 2016 at 9:52 am - Reply

    There are cases and there are, well, cases.

    I’ve been in the Supreme Court twice.

    First time I watched a state’s (our state’s) AG personally argue a case (with a necessary assist from a person in the SG’s office). He was terrible. Counsel for our side (I was about the 28th name down on the brief which was my excuse for being there) was a newbie to the court also (at least I think he was) and he was great. As we knew he would be – in part because of prep and in part because of the particulars of the case he was arguing.

    Second time my colleague and I sat at counsel table trying not to embarrass ourselves while Jeff Fisher stood up and argued for us. Because we knew that it was a case that needed an expert’s experienced touch. (We lost, but not because of Jeff.)

    If there’s a third time? Sure I’d like to argue there sometime. And maybe it’ll happen someday. When it’s the right case. IF it’s the right case. I’ve argued a boatload of cases in appellate courts. My ego’s fine. My skills are cool. But it’s my client’s life, and I want the best it can be for him. Which maybe will be me. But maybe not.

    • shg
      25 August 2016 at 10:27 am - Reply

      Just in case, I’m always available for you. Just sayin’.

  • TMM
    25 August 2016 at 12:31 pm - Reply

    Having the federal public defender have a specialized appellate/Supreme Court office would make sense. I know in my state, the public defender has a separate division for trial attorneys and for appellate attorneys.

    Big problem that trial attorneys have when they handle the appeal is that “appellate facts” are different from “trial facts.” Appellate courts tend to make certain assumptions about how trial judges determined the facts. As such, what the trial attorney considered to be the crucial evidence may get disregarded entirely by the appellate court (if the appellate court does not slap the attorney down in the opinion for disregarding the standard of review). It can be pretty deflating to the argument when one of the judges on the panel asks something like “but the trial court could have found that testimony from witness X incredible. If the trial court believed the State’s witness, does your claim fail?”

    However, most of the emphasis on oral argument misses the bigger issue. Judges, including Supreme Court justices, are not blank mental slates. Even in an intermediate appellate court, it is not unusual for one attorney or the other to find that the judges simply aren’t willing to “buy” that attorney’s theory of what the law is or should be.

    More importantly, with courts of discretionary review, the justices tend to vote to take cases because: 1) they think a case is important; and 2) they think that a majority of the other justices will see the issues in the same way that they do. As shown by the fact that the majority of U.S. Supreme Court opinions reverse the lower court (typically near 70%), justices also tend to take cases in which they think that the lower court was wrong. In other words, the most significant part of a Supreme Court case is the petition for cert stage. Only 70-80 out of roughly 9,000 cases even make it to the full argument and briefing stage (less than 1%). Given the ruthless winnowing process that eliminates even cases that are strong on the merits, expert knowledge (gained in many cases from working for the court) about what makes a case “cert worthy” can be a significant advantage in even getting review granted.

    Simply put, oral argument is very, very minor. A thirty-minute argument in which the bench (at least in the case of the U.S. Supreme Court) is very active is unlikely to persuade minds that have not already been won by the briefing (either at the cert stage or on the merits). In a rare case, an inexperienced attorney may miss the signs that he is losing on the main issue and miss a potential “out” suggested by one of the justices (or alternatively miss the signs that she is winning on the main issue and accept an out that only gives a temporary victory in the case but ultimately does not benefit the client).

    • Cindy
      25 August 2016 at 6:23 pm - Reply

      As to having a federal defender system with a specialized Supreme Court division, Andrew Crespo, in his article in the Minnesota Law Review, said the public defender system is woefully underfunded.

      If we are going to have a specialized appellate Supreme Court division within the federal defender system, Congress has to generously fund it. Such programs are targets for budget cuts.

  • Richard G. Kopf
    25 August 2016 at 2:31 pm - Reply


    Shannon P. O’Connor, an Assistant Federal Public Defender from Omaha, argued and won Rodriguez v. United States, 135 S. Ct. 1609 (2015) (“This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”)

    Shannon argued and lost the suppression motion in our court. But before the Supremes the “hick[] from the sticks who [got his] hands dirty with [an] actual defendant[]” proved the power of your point.

    All the best.

    Rich Kopf

    • Anonymous
      25 August 2016 at 4:57 pm - Reply

      Its all about having the right facts, some law, and the passion. The passion covers a lot of sins in the brief.

      You really got to work the program as they say and not chicken out. One advantage representing criminal defendants is that so often they qualify for a waiver of fees and costs. As the attorney it makes it easier for you to file the pet. cert. The financial issue for the civil client so often can get in the way of making the attempt. Ask for the help when you need it, but if you don’t try you’ll never grow as a lawyer.

      As for briefing and arguing the matter before the Court, heck, if they grant cert. it was your passion and hard work that got it there to begin with. Go for it.