RICHARD LAZARUS: Well, I'm
delighted to welcome everyone to this terrific
event in celebration of the bicentennial, and
of course, the Ames final. OK, but talk about oral
arguments in the Supreme Court, we got a fabulous panel
to discuss the issues. I'm going to introduce
everyone here on the panel. To my immediate right
is Elizabeth Prelogar, who is class of 2008 of
the Harvard Law School. After graduating
Harvard Law School, she clerked for Justice
Kagan on the Supreme Court. She is currently in the
Solicitor General's office of the US Department of Justice. Elizabeth has argued five cases
in front of the United States Supreme Court. She's also argued in at least
two federal courts of appeals, and also in the New York
appellate courts as well. Kathleen Sullivan,
who many of you may have recently seen
at the bicentennial, re-arguing the Marbury
versus Madison case, is a 1981 graduate of
Harvard Law School. Kathleen has argued 11 cases
in front of the United States Supreme Court. She's argued in eight different
federal courts of appeals, also in four or five state-- five different state
supreme courts, for about 100 appellate
arguments overall. Finally, on the far right is
Larry Robins, class of 1978 of Harvard Law School. Larry has argued 18 cases in
the United States Supreme Court. He's argued in every single
federal court of appeals, except one. The seventh circuit has
yet to receive Larry. He's argued 50 cases in the
federal courts of appeals. And Larry has also done
50 trials, 50 jury trials, and non-jury trials as well. Kathleen is a named partner
of the firm Quinn, Emanuel, Urquhart, and
Sullivan, and Larry is a named partner of the
law firm Robbins, Russell, Untereiner, and Englert
in Washington, DC. Finally, rounding
out our panel-- [LAUGHTER] --is the Chief Justice
of United States, John G. Roberts, Jr., class
of 1979 of Harvard Law School. And the great thing
about being Chief Justice is you don't need to say
anything else, right? [LAUGHTER] No more stats are necessary. But he's the 17th Chief
Justice of the United States. And actually, at this
point, by my calculation, he's the eighth longest serving
Chief Justice in the United States, and with years to go. So what we're going to do-- [LAUGHTER] --is a series of
questions to engage in a conversation with
about oral argument, principally in
the Supreme Court, often starting
with the advocates, and sometimes asking the
chief a question as well. So my first question is
one for the advocates, and I think I'd like to
start out with Kathleen. And that is, when you
were a law student here, did you ever think that this
was something you'd be doing? Was your aspiration
when you started Harvard Law School as a 1L, was
it to do appellate advocacy, Supreme Court advocacy? Or is this something which
just sort of happened, a more matter of happenstance
and seizing opportunity? KATHLEEN SULLIVAN:
The answer is yes. It's what I loved best
at Harvard Law School. I loved it from my first
year Ames Moot Court project. I loved being in the Ames
Moot Court Competition. We made it to the
final round and won. And I thought, I'd
love to do this, but had no idea that I could
actually do it in real life. And I took a somewhat
circuitous path to doing it. I said in law school
to my friends, the one thing I'll never
be is a law professor. And then I was a law
professor for 28 years. First for a decade here,
and then for 17 more years at Stanford where I was dean. And I managed during that time
to get a few oral arguments, a few cases, mostly
pro bono cases that I did, and did
oral advocacy on. Then when I finished being dean,
my partner, law partner, Bill Urquhart, said,
why don't you come start an appellate
practice at our firm? And so I got to do later in
life exactly what I loved best at Harvard Law School, and
I've loved every minute of it. RICHARD LAZARUS: How
about you, Larry? LAWRENCE ROBBINS: No, I
wanted to be Perry Mason. Probably most of you
are too young to have any idea who that is. He was a TV lawyer
when I was growing up, and all the episodes
were in black and white. He was a criminal
defense lawyer, who, unlike all criminal
defense lawyers in real life, never actually lost a case. I can assure you that
you actually lose plenty. I thought I wanted to be
a criminal defense lawyer. I thought I wanted to try cases. And that is actually
mainly what I've done. I do a fair amount
of appellate work, as Professor Lazarus indicated. RICHARD LAZARUS: Yeah,
be careful with that. He struggled with that. I heard. LAWRENCE ROBBINS: What? RICHARD LAZARUS: You struggled-- "Professor Lazarus." LAWRENCE ROBBINS:
Well, we have known each other a very long time. So I sort of-- I ended up in the appellate
world, really, by happenstance. I became an Assistant
US Attorney as a-- which is a federal prosecutor. And in my office in New
York, we tended to-- if you tried a
case and prevailed, you would handle
those cases on appeal. So I ended up learning
the appellate craft through the process of having
first been the trial lawyer, and now I more or less split
my time in both fields. RICHARD LAZARUS: Elizabeth? ELIZABETH PRELOGAR: No, when
I first came to law school, I didn't want to
be a lawyer at all. I thought that I wanted
to be a journalist and wanted to write
about the law, but then I got sucked in
to appellate advocacy. I definitely early on, I
think, like many law students reading Supreme Court case
after Supreme Court case after Supreme Court case
thought that appellate law was fascinating. But I think it was really
post law school, when I did my appellate
clerkships and I got to see the mechanics of how
you handle a case on appeal, how you write a
brief, how you present a persuasive oral
argument that it cemented my interest
in pursuing that as my principal practice area. And then going to the
Solicitor General's Office and having the opportunity,
as a relatively new lawyer, to have the privilege and
honor of arguing in the Supreme Court, I think has
fortified my thinking that this was the right
career decision for me. RICHARD LAZARUS:
Mr. Chief Justice, was this anything you were
remotely contemplating? JOHN G. ROBERTS: No. I went to law school
because the career path I was interested in,
becoming a history professor, was a foolish
effort at that time. There was no opportunity,
really, to do that. So I thought law school
was kind of like history. You read old stuff and tried to
figure out what was going on. And when I got here, it turns
out I enjoyed it very much. But I actually hadn't-- I hadn't thought about
a career path in the law and sort of didn't contemplate
any particular direction. RICHARD LAZARUS: So Larry,
when you have a case before the court, how do you
prepare for an oral argument in the Supreme Court? Do you have a routine? Do you have any rituals that
you follow when you prepare? LAWRENCE ROBBINS: No. I-- well, I mean, I
don't think there's anything unusual about it. Well, I have-- I had one ritual which
I'll describe in a minute. But you immerse yourself
in the materials, and then what you
try to do is imagine what your worst enemy
would say if he or she were well-informed about the case. What would some-- what
would your adversary want to ask you if he or she
were the judge before whom you're appearing? And I try to imagine what
the hardest questions are. Unlike some people, I find
it helpful to actually sit down and craft my answer. I do a lot of writing in
the process of tearing it-- preparing for argument. I don't use the notes
very much in the argument, but I try to imagine
the hardest questions. I think this is probably
what everybody does. I don't know-- ritual? I had one ritual which I'll
tell you about quickly. In the years when I was in the
Solicitor General's Office, which was overlapping
with the Chief and with Professor Lazarus. [LAUGHTER] For the male lawyers-- for the men in the office, there
was a ritual of wearing morning coats, which included a vest. And my ritual was that,
for oral argument, I would get my grandfather's
pocket watch out of the vault and wear it with the vest. And it had a gold chain, and I
would attach to the gold chain a charm that was from-- that
my wife, Leslie, who is here in the front row, she
had bought these charms in her grandmother's
general store in the little town of
Glen Lyon, Pennsylvania. And the charm was a
little man in a bathtub. And I would-- I would string it
from the gold watch, and then I would step up
to the lectern and pray that none of the
members of the court could see that I was
wearing a little man in a bathtub for oral
argument in the Supreme Court. That was my one ritual. RICHARD LAZARUS:
So Elizabeth, how do you-- how do you prepare? ELIZABETH PRELOGAR: So Larry
said he does a lot of writing. I do a ton of talking. I talk out loud to
myself in my office, with the door shut so
no one thinks I'm crazy. And I just process the case. I think about-- like
Larry, I think about all of the questions. And then I don't want to
rehearse actual wording for answers, but I feel that
talking out loud and trying to actually
articulate the points helps me focus on which ones
are going to be most persuasive and which ones I
want to lead with. Because the fact is that if
I've got three good points I want to make,
usually I'm only going to have a chance
to get one of them out in response to a question
before the argument veers off course and I get asked
something entirely different. So I find that kind
of ritual of talking about the case to myself to be
a really helpful focal point to try to prepare
for the argument. And I don't have any
charm rituals as well. But I do think that food
rituals are very important. I have the same dinner
before every oral argument. I eat salmon, which
is a superfood. It's good for your brain. And then the morning
of, I eat bananas. And I eat a lot of
bananas-- like two, three, sometimes four-- so that I have-- you know,
it's the only thing I can stomach, with all the anxiety. But it gives me hopefully a
good grounding for the argument. RICHARD LAZARUS: Kathleen. KATHLEEN SULLIVAN:
Well, my rituals are really a combination of
the ones you just heard about. Oral argument is not a speech. It's not oratory. It's not a debate
with your adversary. It really has-- it
has only one purpose. It's about the judges, and
it's about a conversation with the judges. And it's about a conversation
with the judges in the order that they direct the
conversation, not you. So the essence of preparation
is to be prepared to improvise. I've often likened an
oral argument to jazz, if you're a music aficionado. There's a lot of
preparation that goes into that conversation
between the instruments, but once it's happening, it
has to be somewhat spontaneous. So my rituals are
all about preparing questions and answers. Yes, I have certain rituals. I do a script. It has to be in 14 point Arial,
but the questions and answers have to be in 12
point Times Roman. I'm sorry, Mr. Chief Justice-- Century Schoolbook. [LAUGHTER] But the point is, I have
rituals about how I prepare. But I think the
most important thing I'd add to what's
been said is just to do moot courts with
colleagues, including colleagues who are not
familiar with the case, so that you can try out
your questions and answers. And then I go back and
I rewrite the answers after each moot court. Write the questions,
write the answers, and try to make
everything shorter and shorter and shorter. It's like reducing a sauce,
or boiling down maple syrup, or turning something
into a sonnet or a haiku, instead of a novel. It's trying to figure
out how to express your points as cleanly and
clearly and succinctly as possible. Rituals on the day? You know, write out
your first sentence. It may be all you get out,
but your first sentence has to be perfect and
encapsulate your case. Repeat that a lot. And of course, you must
always have the same meal. You must always stay
at the same hotel. You must always wear the
same suit, the same pearls, until the suit wears out. Dry cleaning is
acceptable in between. But there are
rituals of repetition that are very reassuring. But the essence of it
is to prepare to have a conversation with the judges. You're there to help
them write the opinion. You're not there for yourself. You're there for them. And once you accept that,
then everything else follows. RICHARD LAZARUS: And the meal? KATHLEEN SULLIVAN: Ah. Fish before, the night before,
and bananas in the morning. Doesn't everybody? ELIZABETH PRELOGAR: Super foods. [LAUGHTER] RICHARD LAZARUS: All right. Mr. Chief Justice, now you're on
the other side of the lectern. How do you prepare for
oral argument as the Chief? JOHN G. ROBERTS: Well, I-- early on in the
process, I sit down with my law clerks, all of them. One has principal
responsibility for the case, but I'll sit down and ask-- have them ask me questions. And I ask them questions. We have a dialogue and I'm
taking notes about questions they come up with. And I repeat that every
four or five days, depending upon how much
time I have before that. But that's pretty much it. I don't write out questions
in advance, take them with me. I mean, obviously,
questions occur to you when you're preparing,
reading the briefs and all. But mostly, it's the
dialogue with the clerks, and they come up with
some great questions. RICHARD LAZARUS: Now
before you were a judge-- first on the D.C. Circuit,
obviously now on the Supreme Court-- you yourself were an
appellate advocate, arguing, I think, about 39 cases
before the US Supreme Court. JOHN G. ROBERTS: About 39. RICHARD LAZARUS: Yeah. [LAUGHTER] That's Professor Lazarus. What would you do differently,
now that you've been a Justice? What would you do differently
in preparing and arguing before court, based
on what you now know? JOHN G. ROBERTS: First of
all, I would take seriously what everybody tells you that
you should do differently, which is, in brief
writing, keep things short, because you can't
imagine-- every brief, you can be roughly
about 50 pages. Every brief is 50 pages. And then all of a sudden,
you get one that's 35 pages. And you turn it over--
who's that lawyer? You know, I like her, and it's-- [LAUGHTER] It changes everything. But-- and I would-- one, I think I would-- I like to think
I try to do this. I would be a little
more fair to the case. It's not-- it's uncomfortable if
you're a judge and the one side comes in and says, this
is absolutely clear-- you know, only an idiot
would think otherwise-- and the other side
says the same thing. Because you're
thinking, well, I'm an idiot one way or the other. But if you can be
fair to the case and not take an immediately
extreme position-- I always like it when lawyers
sort of give something up when they should. There was one time
we had recently where somebody, one of my
colleagues asked about a case. And the lawyer
says, I was hoping you wouldn't ask
about that case, which is a very refreshing
reply, other than "Here's why that case that looks like
it isn't helpful actually is," because it indicates that you
understand the problem facing the judge, which is that if
it's there at the Supreme Court, it is a hard case and there
are arguments on both sides. And it's the one way--
maybe there are other ways, but one way to get the
justices to be quiet is to say something like that
case is not very helpful. I think if you read
the case that way, things are looking bad for us. Now let me tell you
why you shouldn't. We will listen, because you
have sort of stuck yourself out there and said this
is something important. It doesn't help us. We're going to give
you a chance to say why that case should
not be followed or should be distinguished. You go back in and say, oh,
you know, that case really supports us, you
know, the people are going to still keep jumping
in because that doesn't sound like you're being fair to-- I like to say fair to the case. RICHARD LAZARUS:
Kathleen, back to you. When you're crafting
an argument, either writing the brief or
presenting an oral argument, do you ahead of time
anticipate votes of justices on your side-- who are the justices
I'm likely to get? Who are the justices
I'm not likely to get? Who are the justices
I have to get? And do you craft
your brief that way? And even more significantly,
during an argument, do you-- does how you answer
the question, how long you answer
the question, depend upon who's asking
the question or not at all? KATHLEEN SULLIVAN:
Yes, in many cases. Not in every case. But in cases where you
know the predisposition of certain members
of the court, you have to craft your
brief that way. I'll give you an example. Some years ago, I represented
wineries and consumers who were interested in
shipping wine from wineries to consumers in other
states, across state lines. I've done so many
cases, but winning this one is the only
one that I often get thanked for, because we
were able to succeed. The question was, did
the 21st Amendment override the ordinary principles
of the Dormant Commerce Clause, which would otherwise
bar such facial discrimination in interstate commerce because
it allowed local option on liquor regulation? And I knew in
advance that I likely had four votes against me
because Chief Justice Rehnquist and Justice O'Connor
and Stevens had joined a prior decision in the
aptly-named Bacchus Imports versus Dias case that was in
favor of state regulation. And I had a good
hunch that the-- Justice Thomas, appointed
in the meantime, would likely vote with that
group because of his textualism and belief in states' rights. So I had to cobble
together a majority that would consist of Justice Kennedy
joined by Justices Scalia, Ginsberg, Souter, and Breyer. And I turned to my
co-counsel, Ken Starr, and I said, Ken, I
don't think that lineup has ever occurred before. And it turned out that was true. It hadn't. We won in that lineup. It never occurred
afterwards either. But the way we tried to
plan is we knew that Justice Scalia likes bright line rules. He wouldn't like the facial
discrimination aspect of this, even though he otherwise doesn't
like the Dormant Commerce Clause. Justices Souter and
Breyer were likely to care about the pragmatics
of interstate shipping. Could you still levy
interstate taxes? Would there be any
harm to minors, or would minors be protected
through other means? So we focused for them on the
pragmatics of serving the state interests some other way. And then we thought,
with Justice Kennedy, we had to make a play to
his views of federalism. He believes that
federalism is a balance between the federal
government and the states, and we had to convince
him that this one was one about federal union
and not states' rights. And so, we did direct,
deliberate arguments to each of them, and they
played out in the oral argument. Now, you can't always do it
in that sort of precise a way. The danger in oral argument,
to answer your second question, Richard, is what if you get
stuck with the enemy, the ones who don't like your position? And there, you
have to try to find eye contact with
somebody more friendly and try to get out
of that corner. RICHARD LAZARUS: But if you--
if someone who is unfriendly is asking you question
after question after question, when you finish
answering their question, might you then not look at them? KATHLEEN SULLIVAN:
Well, eye contact is the key to oral
argument, and you want to make sure
you're paying attention to all the interlocutors
on the bench, not just focusing on some. If you've had a sympathetic
question from another judge or justice on your
bench, you certainly want to try to
quote them by name and get back to them
as soon as you can and try to get them to
come in and help you. RICHARD LAZARUS:
Larry, how about you? When you think about
briefing and arguing in front of the court,
are you thinking about different justices? LAWRENCE ROBBINS:
Well, first off, in most courts other
than the Supreme Court, you won't know until a
week before the argument-- and in some instances, until the
morning of the argument-- who your panel is. So the ability to sort of target
your argument in that way, I think, is not-- I mean, it's not practical. Although, in that last week when
you do get the names, you do try to pay attention
to those differences. You know, I can't
really say that I've had cases where
I've thought making particular arguments
for particular justices was productive. RICHARD LAZARUS: Elizabeth. ELIZABETH PRELOGAR:
I definitely try to never write any justice off. I might be hopelessly
optimistic, but I'm always hopeful
that all of the votes are in play, which makes
it a more bitter pill to swallow if I lose 9-0. But-- but I think
that's certainly I'm cognizant of what the
justices' prior positions have been in cases related to the
issues that I'm briefing. And I think about that
when I write the brief. I will say that, in
representing the government, I think, unlike a
different client, you also have to be really
aware of government interests. And so, I'm really always
thinking about what the government interests are. And that might hem me in a
little bit in what I might say and what I can give up in trying
to get a particular justice's vote, because it's not-- the endgame is not to
win the particular case, but to make sure that nothing
is threatening the government's interests in the
mine-run of cases in which it's a repeat player. And so, that tends to be
more of a force dictating how the brief gets
written than trying to appeal to particular votes. RICHARD LAZARUS: Larry. This is one question, I'm
going to ask everybody and that is do you think you
have a distinctive style-- LAWRENCE ROBBINS: Yes. RICHARD LAZARUS: --or signature. In other words, if I were
to pick up a Robbins brief or read a Robbins
transcript, would I know, without having your name? Would I-- would you hope
that I would know that? And how would I spot it? LAWRENCE ROBBINS:
That I don't know. But I-- I feel as
if I have a style that you would be able to tell. And let me-- let me
get at it this way. When I came-- the first time
I argued in the Supreme Court was December 1986. I had never previously seen
the Supreme Court of the United States, much less argued in it. And I had come from being a
federal prosecutor, and then-- and then arguing cases
in the Second Circuit, where the bench that the judges
sat on was high and distant, and you felt you were standing,
you know, at Mount Olympus and talking to the gods. So it was a
remarkable revelation when you stepped to the
lectern in the Supreme Court, as I did for the first
time when I was 34, and the justices are right in
front of you, at eye level, not more than a few feet away. And it-- it lends
itself, I think-- and Kathleen used the
word "conversation." That's exactly the
word I would use. It lends itself to
the feeling of-- oddly enough, of informality. Now of course, you don't
handle it informally. But if you think of it as a
conversation where your job is to help the court
and help the members and answer their question, and
not be wedded to the points you think are necessarily
the most important, but a conversation
with several-- with nine people who have
thought about the case that you've been working on
for a long time, i think-- I think that's the beginning
of the right way to do this. RICHARD LAZARUS: Yeah. But in terms of sort of
rhetorical style or flair-- LAWRENCE ROBBINS: Well. RICHARD LAZARUS: If you think-- I mean you could-- I can imagine, being
a government attorney, you sort of mute
that a little bit. LAWRENCE ROBBINS:
No, I never did. I speak colloquially. I write colloquially. There are tons of
rules that I learned about legal writing
here, 30 years ago, I violate on a daily basis. And I urge you to as well. I use shorter sentences. I use contractions. I have sentences that
end with question marks-- not exclamation points, by
the way, but question marks. And I think-- I talk the way I
write, and vice versa. And I think that is you know--
so long as you're obviously respectful and deeply informed,
I think you can tell-- I think you can be funny. You know, there's no
harm in not being-- you can tell a joke. But let the court-- let the judge or justice
get the punchline. And so, I guess my suggestion
is, once you get comfortable, there's nothing wrong
with treating it exactly as you would a conversation. Look the justice in
the eye, the judge. It's a conversation, and
treat the questioner the way you would with
anyone else you're trying to persuade of a point. RICHARD LAZARUS: I
actually remember one-- this occurred to me. One argument you made,
you began in, I think, a fairly unusual way. You began with a hypothetical. LAWRENCE ROBBINS: Yeah. So-- this was-- Professor Lazarus. I have to remember that. So I'll tell you a
quick story, professor-- I'm not good at this. Professor Lazarus was
doing a moot court for a very-- for an argument. I was one of his
moot court judges when we were in the SG's office. And that day, a case had dropped
off the court's calendar. It had settled, and there
was suddenly an extra hour that the court needed to fill. And it was going
to-- and the argument was going to be in,
like, three days. And what the Clerk's
Office did at the Supreme Court is they basically
called Larry Wallace, one of the Deputy Solicitors
General, and said, we're going to pick
a government case. Because you're in front
of us all the time, we're going to make you guys-- one of your lawyers
are going to have to-- is going to have to come
in on, like, three days' notice. And it fell to me. I drew the short straw. So I had to-- instead of
having a month and three days for this particular argument,
I had all of three days. And it turned out to be
completely liberating. The case was a case about
the rule of-- the Federal Rule of Evidence. And I thought that
the case I was arguing did not illustrate
as neatly the point I wanted the court to make, the
ruling I wanted them to make. So I created a more extreme
version of our case. And when I began the
argument, I said, "Imagine a case in which--"
and then I proceeded to give a hypothetical. Before the argument,
the deputy SG and I sat down and
tried to craft it as the shortest
hypothetical we could write, because we don't want
to get interrupted. God forbid. So I had to get the
whole thing out. And they ended up-- the
court actually became engaged by the hypothetical. They worked with it. They went back and forth,
and late in the argument, Justice Stevens came back to it. So it ended up being a
useful rhetorical device. RICHARD LAZARUS: Kathleen,
do you think you have a-- do you try to have a
signature style or not? KATHLEEN SULLIVAN: I
like to think I have one. I care about making
complex things simple and to try to be as vivid
and energetic as I can in explaining them. I owe that skill,
if it's a skill, to my 28 years of my other
beloved work as a law teacher. I mean, to be a law professor
was to try to take the complex and make it elegantly simple
in dialogue with my students. And so it was, in
a way, ironically, the perfect
preparation for this. I do think most leading
appellate advocates have signature styles. I believe I can pick up most
of the leading practitioners. If you gave me a
transcript cold, I could probably
identify most of them. And they have signatures
styles in briefs as well. And you who are interested
in appellate advocacy have an amazing resource today. You can read transcripts
and watch videos in many circuits and
many state courts and listen to audio, same-day
audio of Supreme Court arguments. That's an amazing
resource, if you're interested in
appellate advocacy. You can go on the Oyez
website and replay arguments and stop it and
watch the transcript. When I was at
Harvard Law School, I used to have to creep into
the stacks of Langdell-- well, not creep. I mean, it was
legitimate access. I did it during the day. But I would go in and there
were five repository libraries of Supreme Court briefs
printed in hot type and bound into great
big musty volumes. And they were all by Archie
Cox's office in the stacks. And you didn't want
to disturb him, so he would tiptoe in and
take down great big volumes and open them up
as they crackled and run your fingers
across the hot type and read the great briefs of the
great Supreme Court advocates. There's Alan Morris
and there's Rex Lee. You could read it. And you-- all you have
to do is sit in your room and click a few
keystrokes and you can read those arguments today. And so, if you want to
be an appellate advocate, you have endless
abundant resources both to read the briefs and to-- on websites like the
SCOTUSblog or the ABA website. You can read all this right now. And I think you can
study signature styles, but then develop your own. RICHARD LAZARUS: Chief,
after an argument, do the justices ever
talk about the advocates? Or do they just talk
about the legal issues? JOHN G. ROBERTS: No, they
talk about the advocates. [LAUGHTER] I have to say, the very first
time that I presided and we came off the bench, it was a
little disturbing, because they would talk about, oh, so and
so, you know, wasn't on today, and can you believe that-- this and that. And it sort of
occurred to me that I had been on the other
side pretty recently. Yes, we do. I mean, not every case. But you know-- and we
appreciate good advocacy. It makes a difference. We do as much as we
can to hinder it, to be honest with you. We ask far too many
questions, and I do my best to try to tone it down. The only thing I would
say is that there is no one right way to do it. And you can practice
to find out the way that you're most
comfortable with, but there are some advocates
who are a little more direct, a little more staccato. There are some who at
least give the appearance they're thinking about
it a little bit before, and then have maybe a
more elegant answer. And you kind of have
to be comfortable. You can tell right
away when someone's been coached to do it
this way, and that's not a way they're comfortable with. And the only thing I'd say
in response to Ms. Sullivan-- not in response, but
the cold transcript doesn't tell you a lot. You do have to go and
listen, because it's all in the dynamics. It's all in the spacing
and in the tone. It's all in the appearance. I mean, you need to find a
way to look comfortable there, because, you know, it's
like dogs in the street. The justices can sense fear. And when they do,
they're ready to pounce. [LAUGHTER] RICHARD LAZARUS:
Elizabeth, has anything happened in an
argument, which has surprised you-- any surprising
moments in an argument? Any peculiar things happen? ELIZABETH PRELOGAR: I was
in the courtroom one day-- not arguing myself, thankfully--
when an individual stood up and started protesting in
the middle of the argument, waiting between two
different advocates who were about to-- who were
trading off at the lectern. And it was startling because the
court is such a solemn place, a quiet place, that it-- but what really stood
out about it to me was that the advocates
who were arguing were not thrown
off kilter at all. They stayed-- they
had perfect grace in the light of that kind
of surprising circumstance and picked right up
with the argument. And it really, I think, was
a learning experience for me to see that no matter what's
thrown at you, whether it's something from the bench or
in the audience, that you can have that composure
in the face of that. RICHARD LAZARUS: Larry? LAWRENCE ROBBINS: None that-- RICHARD LAZARUS: No? LAWRENCE ROBBINS:
--I can think of. No. RICHARD LAZARUS: Kathleen? KATHLEEN SULLIVAN: I
have a dramatic memory of my very first argument. It was against a dazzling
young deputy Solicitor General named John Roberts, and I
had a constitutional argument that I feared I would lose on
behalf of my taxpayer client. I feared I would
lose it, so I had an alternative
statutory argument. I did turn out to lose the
constitutional argument. When I called Deputy
Solicitor General Roberts to congratulate
him on winning, he said don't congratulate me. We should both congratulate
Erwin Griswold, the former dean of Harvard Law School
who had written an amicus brief expressing the
view that commanded five votes. The Chief Justice's position
commanded four votes. My position
commanded zero votes, which at least meant
that I didn't lose sleep wondering what I could have
done to change the outcome. But I did have an
alternative argument, and the strange thing
that happened is this-- I said, if you don't agree with
my constitutional argument, you should hold that the special
tax judge's ruling had been-- was really not the
work of the tax court, and the tax court is given
undelegable discretion and it couldn't
allow a special trial judge appointed by the tax court
to exercise its discretion. And Justice
Blackmun, who never-- rarely spoke from the
bench, leaned over and said, are you saying that
Chief Judge Starrett rubber-stamped the special
trial judge decision? Now of course, I didn't
want to cast any aspersions on Chief Judge Starrett. I was just arguing that,
clearly, erroneous review compelled deferential treatment
of the special trial judge's ruling. So I said, no, Justice
Blackmun, I cast no aspersions on Chief Judge Starrett. We're just arguing
that the rule structure requires you to invalidate
this as ultra vires. He leaned over,
and he said are you saying that Chief Judge
Starrett rubber-stamped the special trial
judge decision. At this point I wondered, had I
worn my suit to court that day? What is going on? I'm being set up here. And when he asked
it the third time, he said, because if
you think Chief Judge Starrett rubber-stamped the
special tax judge decision, you can turn around and ask him. He's sitting right behind you. [LAUGHTER] LAWRENCE ROBBINS:
Actually-- you know I-- as Kathleen was speaking,
I did think of one. In 1990, I argued a
case for the government in which the question was
whether federal agents, DEA agents, needed a search
warrant to conduct a search and seizure in Mexico at
the request of local police, Mexican police. And I had been warned against
a particular opening line, and I had trained
myself not to do it. And then I did it
anyway, which was I began by saying, you know, the
question presented in this case is whether the Fourth
Amendment requires the police officers or federal officials to
get a warrant when they conduct an overseas search and seizure. And the Chief Justice-- Chief Justice Rehnquist
leans across the table and he goes, ah, I don't
think that Mexico is exactly overseas. [LAUGHTER] And then-- and then I tried-- I recoiled and tried to regroup. And then Justice Scalia, who I
think I'm now allowed to say, since he's no longer alive,
I used to play squash with him once a week. So we were on friendly terms. And he stepped forward and
he said, ah, an overstatement in your very first line. [LAUGHTER] And that kind of bailed me out,
and I could go on from there. So the moral of the story is,
sometimes when something goes wrong in-- somewhere in
the courtroom, you're the-- you're the one. JOHN G. ROBERTS: These-- these are not very
interesting stories. [LAUGHTER] At least not compared to what
happened when I was arguing. I was arguing against Larry
Gould, who's a fabulous lawyer, did most of the big labor
cases for the AFL-CIO. And the arguments going
and he's up there, and all of a sudden,
Justice Ginsburg leans back and
hands a note to one of the bailiffs or messengers. And this person takes
it, looks at it, walks around, comes down
to the well in the court, walks behind me
and hands the note to Larry Gould, who is arguing. What in the world
is going on here? And he opens the
note and looks at it, and I'm sitting there
trying to see what it says. I think I should at least know
what it says or something. And then he just puts it down
and, as far as I can tell, nothing else happens. And I cannot figure it out. And I go-- get a call from
the clerk of the court a half hour later
after it's over. And he says, you're
probably wondering why Justice Ginsburg sent
a note to your opponent during the argument. And I said, well, darn
right, I'm wondering. It didn't seem fair. And what happened is that she
had written a note that said, "Get the petition." And the poor person behind
her, it was her very first day, looks at it and thought it
says "Gives to petitioner." So she figured, OK, and walks
down and hands it to Larry. And I talked to Larry
afterwards and he said, well, yeah, you can imagine
what I felt. He said it opens up and it says "Get the petition." So he says, you may
not have noticed, but I immediately
went down to the stack of papers and put the petition--
and you know, he thought that-- so that's a better story
then the ones you've heard. [LAUGHTER] And he won, nine to nothing. So I still think there was
something more to the note. RICHARD LAZARUS: All right,
Chief, one of your jobs now is managing the bench
during the oral argument. Is that particularly
challenging and why? And how do you try to
address that challenge? JOHN G. ROBERTS: Well,
it's very challenging. As these excellent
advocates know, we have a lot of questions. And it's very hard because-- well, for example, if we
have two issues in a case, I will try to tell
people, why don't we focus on the first issue
first, and at some point when I feel we've heard
enough, I'll ask a question and we'll shift to
the other issues? Sometimes that works. I try to encourage people
to let people preserve time. In other words, the white light
goes on with five minutes left, I think we should allow
people to save time. So I try to encourage
people not to ask questions. It doesn't always work. Sometimes, people--
some of the justices spend more time spitting out
their questions than others. And if they're-- excuse me--
taking up a lot of air time, I try to direct the questioning
elsewhere, which is not easy. I mean, I'll look over and I'll
see that Justice Kagan has been trying to get a question
in for the last 15 minutes, and another justice
has been going on, then I will actually
say, Justice Kagan, you have a question. Or I try to look out for
the lawyers, the justices. And it's, you know-- I don't know if you can
blame them for it or not. It's just the way it is. They will often ask
questions of counsel, and one of the other justices
will obviously respond in the form of a question. And you see that all-- all the time. Justice O'Connor and Justice
Scalia had a wonderful exchange that I vividly remember,
when Justice O'Connor asked the lawyer something
about, well, I don't think there's-- there
may not be jurisdiction in this case, tell me about that. And Justice Scalia
jumped in and said, well, isn't there a diversity
jurisdiction here? And Justice O'Connor said,
well, isn't the corporation headquartered in Delaware? And Justice Scalia said, well,
but their principal place of business-- and the
lawyer is looking like this. It's like Wimbleton. He's looking back and forth. And then Justice O'Connor
asks one question, and the lawyer looks
to Justice Scalia. [LAUGHTER] And he leans over and
says, you're on your own. [LAUGHTER] So I try to avoid that. I will say, you
know, this might be-- if some justice is
really badgering, I'll say this might
be a good time to let counsel answer the
questions, or things like that. But you do have to be careful. I remember when I was a
lawyer, Justice Stevens asked me a question. And before I could
answer, another justice asked me a different question. So the rule always is, you
answer the last asked question. So I answered justice whoever's
question and turned very-- a little theatrically to
Justice Stevens and said, I didn't have an opportunity
to answer your question. And Justice Stevens is beaming. Oh, this is great. And I'm looking at him,
and I realize I don't remember what his question was. So I just mumbled something
about why we should win and he looked very confused. [LAUGHTER] But I will say, we ask-- we ask
too many questions these days. We don't take as much benefit
as we should from the extremely high-quality bar that we have. And you know, I
try to do my best to allow not only the
lawyers, but also all of my colleagues to participate
to the extent they want to. RICHARD LAZARUS:
Elizabeth, you've been, obviously, in the SG's
office the last several years, when Justice Scalia
was a major presence on the bench, and obviously,
since his passing. What's your sense of how
that's affected oral argument? Has it had a profound effect? ELIZABETH PRELOGAR:
I think it absolutely has affected oral argument. And you know, I
miss him in cases where I know he'd be on my
side, because he was always one to speak up and, through his
questioning, kind of signal how he was thinking about the case
in ways that were helpful. And it's been a
blessing in cases where he was against me,
because he would always ask those really
difficult questions that were pointed and got
right to the heart of the vulnerabilities
of my case. But I think that--
as an advocate, I think we really do miss him. He also brought a lot of
levity to oral argument. He frequently said things
that were very funny and that could
break up the moment. I clerked for Justice Ginsburg,
and I remember at some point during my clerkship,
a study came out about who the funniest
justices were. And Justice Scalia
had the top ranking, and Justice Ginsburg was,
unfortunately, lowest ranked. She was really, really
upset about this ranking, and she came to the
clerks and said, you know, how can
I be more funny? So we tried to write
her some jokes. It didn't really work. But I think that certainly
the bench has changed. And I haven't had
an opportunity yet to argue in front
of Justice Gorsuch, but I think that
any time there's a new member of the court,
it changes the dynamic and has to factor
into the advocate's thinking about the case. RICHARD LAZARUS: Chief,
what about the impact on the bench in the court? Just a few thoughts. JOHN G. ROBERTS: Well,
I mean, Justice Scalia is not somebody you can
replace, either intellectually or in the dynamic of the place. He was a big presence. He filled the room, whether
it was the conference room or the chambers
of the court, through the force
of his intellect, the dynamism of his personality. We all miss him. I miss him. He sat immediately on my
left for the first part of my tenure, and then on my
right after that, by seniority. And as funny he was
in his statements to the court, the
notes and the sotto voce asides were hilarious. But we've got-- we've got a
wonderful panel of judges. They had their own
particular styles of humor, and not as exuberant as
Justice Scalia's, but it remains a lively place. RICHARD LAZARUS: Larry, I'll
ask you this question first. Have you ever had
any cases you've argued, positions you've argued,
where, if you were a justice, you would have voted
for the other side? LAWRENCE ROBBINS: So,
I'm going to fight the hypothetical, slightly. I can't say that I've argued
a case that I would have voted on the other side of,
but I have argued a case to defend the constitutionality
of a statute I would never ever have voted for. And let me-- I'll
tell you this story. In 1987, I argued a case called
Lyng against the United Auto Workers. I was in the government then. This is a statute that
was passed in 1986, and it provided that if
the reason your family lost money was because a
member of your household was on strike,
that loss of money would not count towards
food stamp eligibility. And so, even if your-- so in a standard case, if the
father of four or five children was out on strike because
the steel workers or the mine workers were out
on strike, and he was the source of the
family's livelihood, nobody-- not the kids, not
the parents-- nobody would become eligible
for food stamps. I personally would
not have voted for that statute at
knifepoint, but it fell to me to defend its constitutionality. And I had no doubt that
it was constitutional, and I would have voted, if I
were a member of the court, to sustain it, though I
wouldn't have voted for it. But I'll just tell you
the rest of the story. At this argument, I invited my
grandmother to the argument. She sat in the-- where the visitors get to sit. She sat with my wife,
Leslie, with my mother, and with our then oldest son. She was a little
hard of hearing, but she could sort of
hear what was going on. And I was explaining
to the court why this statute
was constitutional because it showed that the
government would remain neutral in labor disputes. And Justice
Marshall, whose voice I had up till that point had
never heard in the Supreme Court, took a copy of my brief. And holding it, pushing it
back and forth across his face, said, so you're
saying, counselor, that in the name of
labor neutrality, you have to take food out of
the mouths of starving children? At which point, my
grandmother turns to my mother and says, is that what
he does for a living. [LAUGHTER] I-- I had to explain that
I didn't pass the statute. But anyway, it was cold
comfort for my grandmother. RICHARD LAZARUS: Kathleen,
have you-- is there any case you've argued
where you would have not been willing to
argue the other side? KATHLEEN SULLIVAN: Yes. All of my cases. RICHARD LAZARUS: OK KATHLEEN SULLIVAN:
Not quite true. I think the Chief Justice
made a very important point when he said that you have
to, especially in preparing for argument, give
due to the other side and actually not
treat your side is as perfect and without flaws. So yeah, there are
plenty of cases in which I have thought that
I just literally could not have taken the other
side's position. I was absolutely convinced of
the correctness of my position, sometimes even in
cases where I lost, and I continue to believe
that our position was the objectively correct
position and the court had just missed it. But sometimes, I could have
leapt over to the other side and argued for them. RICHARD LAZARUS: Elizabeth, do
you have any feelings on that? ELIZABETH PRELOGAR:
I think maybe it speaks to the power of
cognitive dissonance, but no, I can't think of a
time when I didn't ultimately persuade myself in the
correctness of my position, even though, like
Kathleen, I've sometimes found that the court disagreed
with me, much to my surprise and disappointment. But I think that I've not always
been able to persuade others. In my last argument, in fact,
where we had the opportunity to argue on the
same side of a case, I had just wrapped
up the argument. And my father-in-law had
flown to D.C. from Kansas City to watch me argue
for the first time. And we walked out, and he didn't
even say, you did a great job. He just said, you know,
you're completely wrong, and proceeded to grill
me all the way to lunch about my position. And you know, we
went back and forth, and I felt like the
argument had continued, that I was still
in the midst of it. And you know, finally, we
got to lunch and I said, the court has rested. And then, luckily,
our side prevailed, and so I really took
great joy in forwarding the opinion to him. [LAUGHTER] RICHARD LAZARUS: Based
on your experience as advocates, if
you could change any rule of the Supreme
Court related to advocacy, any rules you would change? Amount of time spent? Anything you'd change in how
the court does things now? KATHLEEN SULLIVAN: Well, I
think that the Chief does a remarkable job of trying to
manage this brilliant court with its many questions and
to try to give the advocates a chance to speak. And in fact, it's
quite wonderful when you get a few sentences
out at the beginning, and when he helps
to direct traffic so that you get to respond to
a justice who's been left out. So I appreciate the tremendous--
the tremendous effort that he makes, and it's
a magnificent court. It may well be
the greatest court in the history of
the United States, in terms of preparation,
intellect, focus. Having said all that, sometimes
not every argument is-- needs to fit into an hour. Sometimes an argument is
really finished before then, and sometimes an argument may
benefit from a little more. So I suppose I would
like it if sometimes we could go past 30 minutes
a side, the way sometimes in the circuits you can go
past your allotted time, if the questioning warrants it. That would be the only thing. I recognize that that would
create a lot of discretion and potentially a sense
of inequality among cases. But there have just
been some times when I thought the questioning
could have gone longer. So that's maybe the
only suggestion. RICHARD LAZARUS: Larry,
do you have any views, based on being an advocate,
on whether the argument should be televised? LAWRENCE ROBBINS: Yeah,
I was going to say, that's the one rule I
would at least consider. I don't know that I
would do it routinely, and I do understand
and respect the view that it changes the dynamic in
ways that are not productive. But I think that-- I don't think there's
much about that the way democracy functions that is
better than the way lawyers and judges, and especially
lawyers and justices, interact. And I think there is an
extraordinary teachable moment, as they say,
that would cast democracy in a very much kinder light and
it would educate the public. And if I can be forgiven
a moment of partisanship, there is no greater
time than now for the public to appreciate
what democracy is capable of. So I would-- I would consider whether certain
cases should be televised. RICHARD LAZARUS: We have a
lot of law students here. Some of them may be
thinking, at some point, on having a career in appellate
Supreme Court advocacy. What advice,
Elizabeth, would you give them, in terms of classes
to take when you're in school? And beyond that, when
they graduate, should they think about immediately becoming
an appellate specialist, or should they try to be
a general litigator first? Any thoughts? ELIZABETH PRELOGAR:
Well, I would say definitely take Fed courts. It has come in handy so
many times in my practice. I frequently am in the
position of writing a brief in opposition to
cert at the cert stage, and I feel like it's one big
Fed courts issue spotting exam to come up with vehicle
problems to convince the court that it does not
want to review that case. So that's been a really
useful law school class that has stayed with me. In terms of steps
to take, I have to put in a plug for
government service. Obviously, the SG's office
is a fantastic place, but the Department
of Justice generally, the divisions are
incredible opportunities for relatively new
lawyers to get really early responsibility
over appeals and to have a chance to get into
court and to argue in court. And I think there's
no better place to get that kind of
experience, which you can then use if you ultimately want to
go to private practice or to-- or to do something
else in appellate law. Actually, having that
in court experience that you can get in
the government really can provide a launchpad to
those other opportunities. RICHARD LAZARUS:
Kathleen, any thoughts? KATHLEEN SULLIVAN:
Well, I echo the thought that government jobs, not just
in the federal government, but also in city
corporation councils offices or state solicitor
general's offices, can be wonderful places to
get appellate experience early in your career. But there are rich opportunities
in the private sector as well. There are wonderful appellate
practices at a number of firms. Many are focused on D.C., but
some are, as my firm's is, are focused in
other jurisdictions. We practice principally out
of New York and California, for example, and we're
close to industries that have a lot of appellate
work that we can be close to. So don't overlook opportunities
in the private sector. I would just add, I think it's
a mistake to silo yourself as a purely appellate lawyer. Because to be a great
appellate lawyer, you also have to understand
where the record came from and what the trial lawyers
did to get it there, and to be part of trials,
to be part of-- if you're on the plaintiff side,
fashioning complaints, to be part of motion
practice, to have helped craft the instructions in a jury trial
is an important part of being a great appellate lawyer,
to know how the record goes. To be a great appellate lawyer,
you have to know the law, but you have to sometimes
know the record better. So I think to focus
on facts and have some experience
on the trial side as well is a very
valuable skill. So you can be a great appellate
lawyer as your principal focus, but try to get trial
experience too. RICHARD LAZARUS: Chief,
we'll let you answer the last question of the day. What if your aspirations
are even greater still? What if they want your job? What if they want
to be Chief Justice? This is after, though, you've
done it for decades more. JOHN G. ROBERTS:
Well, obviously, it's like being struck
by lightning twice, and you can't plan on
being the Chief Justice. If you do plan to be
the Chief Justice, you're probably not the type of
person they want for the job. But I will say, if I
can, what you should do if you want this type of work. All of the suggestions
are good, but the part that makes this
fun for all of us is obviously standing
up and arguing. The written briefs are more
important than the arguments, but it's the arguments
that are fun and sort of keep us coming back. And I'll give the advice
that a fellow named Barrett Prettyman, who was
in my-- the law firm I joined and my mentor in some of this. And at the beginning, because
you're all going to be there at the beginning, you just
have to promise to yourself-- and he made me promise to him-- every single opportunity you
got to stand up and talk, that you would
stand up and talk. You would not turn
down any invitation, and he would send as
many as he could my way. And I will never
forget talking to the-- I think it was the Maryland
Conference of Bankruptcy Appellate lawyers. It was a room as big
as this, even bigger, and there were
five people there. Two of them were sitting
there, one way back there. The guy reading the
newspaper was there. And you stood up and
you gave whatever it is they asked you to talk. So it will make you more
comfortable doing it, and it will develop
a lot of skills that you're going to need. But you know, it's in the
area of paying your dues. And when-- wherever you go,
whether it's at the government or at a law firm, nag people
about opportunities to do that. Big law firms, most of them
are doing pro-bono work and they will have appeals
that may be terribly mundane, but it will be yours and
you can get up and do it. And the government, state
and federal and local, also have the same things. And whatever it is, just do it. And you'll get better at it,
and as you get better at it, people will notice
and people will hire you to do their stuff. RICHARD LAZARUS: Well, I
want to thank the panel and have everyone join me in
thanking them for doing it. [APPLAUSE]
