Mimesis Law
18 January 2020

Supreme Court Oral Arguments: Whose Ego Is The Real Problem?

August 19, 2016 (Fault Lines) – Earlier this week, Noel Erinjeri pointed out the disadvantage criminal defendants suffer in front of the United States Supreme Court. He concentrated on the quality of the lawyering, which is getting some attention these days.

But the real problem for criminal law may not be the lawyers arguing in front of the Supreme Court. There is no question the opinions coming out of the Supreme Court seem to be getting less and less helpful to the criminal defendant. But that is a result of who is writing those opinions, not who is arguing about them. The Court’s eight justices are utterly disconnected from the daily practice of law. And that disconnect is the problem.

The New York Times investigated the issue last week, asking why criminal defendants are getting the short end of the stick at the highest court in the land. Among several reasons, Justice Kagan said a repeat problem at the Court is that criminal defendants are not getting the best representation.

“We have an extraordinary group of lawyers who appear very regularly before us,” Justice Elena Kagan said in 2014 at a Justice Department event.

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

You can be damn sure they aren’t getting great results at the Supreme Court. But is the representation really that bad? Yes, according to Justice Sotamayor. The blame lies not just with the criminal defense lawyers, but their egos.

Why are there so few expert lawyers arguing on behalf of criminal defendants? Justice Sonia Sotomayor has said that the main factor is vanity: Many criminal defense lawyers are too reluctant to cede the glamour of Supreme Court arguments to specialists.

“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.

What the hell, man? We have a bunch of vain idiots arguing criminal cases up there? Is that why all the criminal opinions are so bad these days? A Reuters report from 2014 sheds light on the problem.

Turns out the Supreme Court is not happy with common trench lawyers coming up to D.C. and sucking up the rarified air of the Court. The Reuters report described what the justices have come to expect at oral arguments.

In this ever more intimate circle, lawyers say, chemistry with the court is key. The October case was a milestone for the 48-year-old [Paul] Clement: It marked the 75th time he had appeared before the high court, second most among active lawyers in private practice. The following week, at a party celebrating the feat, veteran attorney Lisa Blatt toasted Clement’s success.

“The justices love Paul,” Blatt declared. “They visibly relax when Paul stands up and they are smiling when he sits down.”

“Chemistry with the court” is key. And you probably thought something like “knowing what the hell the Fourth Amendment means” was key. Nope. Its chemistry. Which is a whole lot more important than you think.

How does one build chemistry with the justices of the Supreme Court? It’s not like they are on an app and you can swipe right to become the next apple of the Court’s eye. Building chemistry with a Supreme Court justice takes more than just flirtation; you have to build a relationship. The easiest way is to work for them. Or with them. Or around them. Or maybe some combination.

No matter; the club is only growing tighter. In the last term alone, 53 percent of the cases the court heard featured at least one lawyer – in government service or private practice – who had clerked for a sitting justice. That’s three times more often than 20 years earlier, Reuters found.

The eight lawyers who have appeared most often before the court have especially deep connections to justices past and present. All but one have worked in the powerful U.S. Solicitor General’s office (whose lawyers are constantly at the court representing the federal government), or for a justice as a law clerk, or both.

According to Professor Andrew Crespo, the Court wants to hear from “experts.” An expert is a lawyer who has argued five cases before the Supreme Court. A handful of lawyers qualify. It is those lawyers the Court wants to read petitions and briefs from and hear arguments from. Because they are smarter than the street lawyers. For example, check out how this St. Louis lawyer, Bob Marcus, was wowed by the brilliance from one of the experts:

But what also impressed Marcus is what happened in the minutes before the oral argument.

Waiting in a lounge outside the Supreme Court chamber, Marcus watched [David] Frederick chat amicably with a casually dressed woman he did not recognize. Shifting nervously as he anticipated the biggest case of his life, Marcus asked Frederick about the hallway encounter.

“Who was that woman?” he wondered.

“Oh,” Frederick answered matter-of-factly, “that was Justice Alito’s wife.”

Neat. On one hand, it’s nice to know the Supreme Court is as petty and cliquey as any old regular court. On the other hand, give me a break. If you regularly read Supreme Court opinions, you may wonder if any of these judges have ever actually represented a person, or stood in front of a hostile jury, or explained to a crying wife she wasn’t going to see her husband again, or watched a child lose a parent, or any of the myriad other things that keep a real lawyer awake at night. Or maybe just read the damn Constitution once?

It has taken the Court almost 25 years to figure out the Armed Career Criminal Act is bad law. The Supreme Court has winked at mistakes of law, mistakes of fact, whatever. No big deal. Mistakes happen. No reason to let the criminal go because the constable blundered. Prosecutors regularly hide evidence? Who cares. No relief here. Execute an innocent man? No worries. Not unconstitutional.

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.

Not Supreme Court argument experts. The same 20 or so ex-clerks are arguing all of these cases? That makes perfect sense if you need an explanation for why the opinions are dense, and unnecessarily complex, and just damn nonsensical sometimes. Everybody is patting everybody else on the back about how great it is to be in the club.

And while all the back-patting is going on, the criminal defense world is going to shit. And maybe no one cares, because that world is about criminals, right? Not quite. It is about the Constitution. So when the cocktail party breaks up, maybe you justices could go back to actually protecting it?

15 Comments on this post.

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  • Who Argues For The Defense? | Simple Justice
    19 August 2016 at 8:49 am - Reply

    […] only goes so far, apparently. But as Josh Kendrick’s points out, being part of the in-crowd at the Supreme Court not only gives a lawyer cache, but the benefit of […]

  • Mark W. Bennett
    19 August 2016 at 10:28 am - Reply

    As a young lawyer just 3 + years out of law school I argued a case in the Supreme Court. No mock practice arguments, no advice from the experts, just unsurpassed preparation and laser focus. My argument was between terrible and bad. I think there is a lot of wisdom in checking your ego at the cert. granted door and picking a specialist to argue. It’s not that a real criminal defense trial lawyer from Spotted Horse,Wyoming or Camden, Maine would not do a great job, but the odds of that happening are not good as with a specialist. Not many folks would choose to have a general surgeon operate on a heart by-pass or brain surgery. There are specialists in this world for reasons. Just sayin.

    • shg
      19 August 2016 at 11:03 am - Reply

      Isn’t “new lawyer” plus “inexperienced at SCOTUS” a double whammy? Yet, you won. Just sayin’, Judge.

    • losingtrader
      19 August 2016 at 11:04 am - Reply

      “Not many folks would choose to have a general surgeon operate on a heart by-pass or brain surgery. There are specialists in this world for reasons. Just sayin.”

      A false comparison : No general surgeon would be permitted hospital privileges (or have malpractice insurance cover such surgeries) except in an emergency.

      Do you think you’d be qualified today to argue a case in front of the Supremes?
      And what of your prior case, would you term it malpractice today? Just askin.

      Plus you’re spoiling Scott’s day because there’s at least one poorly -equipped attorney SHG and I know who’s won a case at SCOTUS and uses it heavily in his yellow pages ads.

      • shg
        19 August 2016 at 11:26 am - Reply

        Thank you, LT. Judge Bennett is harshing my dream.

    • Josh
      19 August 2016 at 1:09 pm - Reply

      There is a big difference between “incompetent” and “not part of the club.” Most of these “specialists” are just big firm lawyers who clerked for the justices, and the justices like them.

      Checking your ego is admirable. Being labelled egotistical for not yielding to the desires of the ivory tower is unfair.

      As a counterexample to yours, I was 18 months into my career when I appeared in front of the 4th Circuit against a DOJ ringer. Even though the Court ruled the wrong way, I did a great job. Had I chickened out or been intimidated by a Court that I had never been to, I would have never gotten to experience what has become a huge part of my practice. Its b.s. for the Supreme Court to blatantly announce they don’t want any outsiders in their court.

      • Anonymous
        21 August 2016 at 9:10 pm - Reply

        Amen. It’s supposed to be about the Court making decisions based on the strength of the facts and the law. There will always be lawyers who are not sited to argue appeals, or try case before a jury. But most advocates have the requisite skills to draft a brief, and argue their case if they try. The secret lies in caring about the case, the client, and believing in the issue. I have found that when a competent lawyer projects sincerity makes an effort, the appellate panel listens. Smarmy and smug appellate specialists are usually treated politely, but don’t necessarily have the influence they think they have. No one likes a self satisfied, sanctimonious pompadour ass. Most appellate judges that I have come across are very smart, and usually very humble people. They want to do the right thing, and if you do too, it has more impact and influence than a stilted brief and supercilious argument. If you get SCOTUS to grant cert in your case, YOU are probably the best lawyer to brief and argue that issue. It was your passion, competence, hard work and sincerity that convinced four justices to hear it. That’s quite an accomplishment, and speaks volumes about your own abilities as an appellate advocate. I’ve argued in five state appellate courts and nine federal circuits. I don’t think I’m any more an appellate specialist than anyone else. I’m competent, and I care. Do the same, and never chicken out. If you do you’ll regret it always. And you won’t grow as a lawyer. Ask for help when you need it, but don’t chicken out.

  • Clem for the Defense
    19 August 2016 at 11:37 am - Reply

    Thanks from one of the “vanity” lawyers now being savaged by the zeitgeist. When I had my cup of coffee in the Bigs, I’d been doing appeals for criminal defendants in state courts for 20 years and had spent 4-plus years clerking at the state supreme court that issued the opinion on which the Supremes took cert. I’d argued and won the case in the state supreme court. Had three moots for the SCOTUS argument, including one at Georgetown Law. I felt prepared, which isn’t to say I wasn’t scared shitless. Lost, of course, though I think the case was unwinnable for the respondent.

    Attended SCOTUS oral arguments as a spectator last year. Handled by one of the pros and a state solicitor general who hadn’t argued the case in the state supreme court. Strong advocacy all around, but I couldn’t help thinking both sides would have benefited from more experience with this type of case in the state courts.

    Bottom line: I think some of us bring something more than vanity to the table. If you don’t want us there, don’t let us in your Bar.

  • SPM
    19 August 2016 at 12:03 pm - Reply

    My guess is that you would probably have a column saying how terrible it was for an attorney who only handled divorces and wills to represent a defendant in a death penalty case.

    If only lawyers experienced in criminal law should handle criminal cases (see posts from a week or two ago), then it makes perfect sense that only lawyers experienced in appellate practice should argue before those courts.

    • shg
      19 August 2016 at 12:56 pm - Reply

      Criminal law is a substantive. Appellate is procedural. You’ve mixed apples and Chevys.

      • SPM
        19 August 2016 at 1:28 pm - Reply

        QED. The fact that one is skilled/experienced in the one, does not imply skill or experience in the other. Despite what some may believe. Those most effective in practical criminal defense are often not that good in dealing with the relevant appellate issues. If every criminal case went to trial that might be different. In my state, criminal defendants win before the state Supreme Court most often despite their attorney, not because of him. As partial evidence of that (again from my state), appeals are not handled by the relevant prosecuting attorney, but rather by dedicated personnel in the state attorney generals office. If the state has determined that prosecutors “on the ground” should not handle appellate issues, that is a hint that maybe the initial defense attorney is not the one ideally equipped to deal with them either.

        Now, obviously, there is a vast difference in resources available between the state and the average defendant. But the fact that the one with the most resources has dedicated lawyers who handle appeals tends to indicate that is the ideal situation.

        • TMM
          19 August 2016 at 3:52 pm - Reply

          In my state, for felonies, both sides on appeal are represented by specialized attorneys. Calling law procedural versus substantive matters for retroactivity analysis, but the procedural law governing appeals has as much substance as the law on the merits.

          A lot of good trial attorneys are great at examining witnesses to bring out the strongest facts. Appellate practice is primarily about the record, the standard of review, and finding a way to characterize the facts to fit into one of the round holes. I have seen way too many trial attorneys attempting to handle an appeal demonstrate that they do not understand the difference between a jury closing argument and appellate argument.

          While everybody has to handle their first trial, appellate argument, supreme court argument at some time, experience does make a difference. If it didn’t, big companies would not be hiring Supreme Court specialists, and the federal government would not have a unit specializing in the Supreme Court.

          To the extent that there is a problem with the Supreme Court, it is that there has been a conservative majority for over 40 years. That philosophical bent is the best explanation for the fact that opinions tend to have conservative outcomes.

          That’s not to say that being an insider is not significant. But where it is most significant is not in the cases heard, but in the cases not heard. By the time, you get to oral argument on appeal, the odds of getting a judge or justice to flip is very slim. However, the difference between an experienced attorney who know how to draft a petition to make a case look cert worthy and an attorney who does not have a clue about what is cert worthy can vastly alter the odds of a case getting heard. Like it or not, the experience of being a law clerk at the Supreme Court or having worked in the Solicitor General’s Office (or other Supreme Court specialty practice) gives you an edge in knowing how to get the justices to look closely at one petition out of several thousand. A similar thing happens in every state with the state supreme court. It’s just the nature of the beast — there is no substitute for knowledge, talent, and experience.

  • JoAnne Musick
    19 August 2016 at 3:39 pm - Reply

    So why are these “experts” not taking pro bono criminal defense clients and saving them, and the law? If these 20 experts each took a case, we would surely have 20 wins for the defense!! Seems like an easy way to affect some change!

    • shg
      19 August 2016 at 3:50 pm - Reply

      The unspoken problem with the Supreme Court “bar” is that sometimes, their lack of subject matter expertise dooms their argument. And we live with the consequences of horrendous law. In other words, the adored experts may not be nearly as expert as everyone assumes.

      • Cindy
        19 August 2016 at 6:20 pm - Reply

        With all due respect, you are mistaken. Gideon’s lawyer, Abe Fortas, rarely practiced criminal law. Abe Fortas, one of Washington D.C.’s most respected attorneys, advised clients on antitrust, regulatory compliance and securities matters. Yet Abe Fortas wrote a brief and presented oral argument on behalf of Gideon. Abe Fortas, possessing a brilliant mind, was a tremendous advocate for Clarence Gideon, an indigent criminal defendant.

        We desperately need big law partners, regardless of what law they practice, who regularly appear before the U.S. Supreme Court, to take pro bono cases on behalf of criminal defendants.