The Volokh Conspiracy

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Some Levity On A Technical Oral Argument Day


Today, the Harlan Institute and Ashbrook hosted the championship round for our virtual Supreme Court competition. Every year, we fly the top two teams and their coaches, to Washington, D.C. These high schoolers had a jam packed day. In the morning, we attended oral argument at the Supreme Court. For lunch, we chatted with a Supreme Court advocate about his just-argued case. And in the afternoon, the students presented arguments mooted before a panel of three federal judges at the Georgetown Supreme Court Institute. It was a memorable day for everyone. I'll write much more about the competition later. Here, I'd like to focus on the two argued cases. Preview: they are, at least on paper, extremely technical and, dare I say, boring. But the arguments were quite entertaining, and had their moments of levity.

The first argued case was Dupree v. Younger. At a high level, the case concerned whether an issue raised in a summary judgment motion was preserved for appeal. I won't even bother getting into the nuances of Rule 50 here. If you'd like a readable take on the case, go to Adam Unikowsky's post. (Yes, he writes on things other than mifepristone–you should follow his helpful Substack!)

For reasons that would become clear at the end, Justice Gorsuch was very engaged. He asked questions for most of the Petitioner's argument. At several junctures, Gorsuch seemed to fault the trial counsel for not clearly preserving an exhaustion issue. But Gorsuch immediately stressed that he was not directing fault at Andrew Tutt, who argued the case before the Court. Also, Gorsuch suggested at several points that the Court may have taken the wrong case, and there should be a DIG. (He likes to DIG). In the process, Gorsuch does this strange performance. He sort of leans forward, and drops his voice several registers, and speaks really slowly with a deadpan, as if he is a detached narrator. The transcript does not do justice to this dynamic:

JUSTICE GORSUCH: And I just struggle to see whether maybe we picked the right case for deciding this question given that I would have thought that an affirmative defense, you would have had to raise something at trial. You didn't even make a proffer of evidence. You didn't do anything at trial on your own affirmative defense.

MR. TUTT: Well –well, Your Honor, I promise you –

JUSTICE GORSUCH: I know it's not you, counsel. (Laughter.)

MR. TUTT: I promise you picked the right case. The –the –the relevant fact that meant that we were not going to win at trial was undisputed at summary judgment.

The emphasized line got a (laughter), but it was a bit awkward. And then he did it again:

JUSTICE GORSUCH: And I am not arguing with your --your basic premise that --that there are some legal issues that you don't need to raise. 

MR. TUTT: Your Honor, the --if we had tried to put exhaustion on at trial, I think that the other side would have said: What are you doing? You're distracting the jury. You are -

JUSTICE GORSUCH: We'll never know what they would have done. 


MR. TUTT: Well, Your --Your Honor, I just don't know of a --of a situation where this would actually happen, where you would try to press a foreclosed or a doomed claim. 

Gorsuch was gentle not to fault Tutt, who didn't litigate the case in the trial court, but still wanted to make the point in his sotto voce.

Speaking of sotto, the Court's two members who actually served on a trial court seemed to agree with Tutt. Justices Sotomayor and Jackson both said the procedure respondent was recommending would never actually happen in the real world. This comment from Justice Sotomayor sums it up:

JUSTICE SOTOMAYOR: I –I'm sorry. Let's go back to when a district court will change its mind. In my experience, it's when something new is brought to its attention, whether it's a decision by another court or it's a new factual situation or answer. Here, as Justice Jackson keeps pointing to the district court's decision, it wasn't relying on facts. It was saying, as a matter of Maryland law, given the Maryland regulations, when an IAU is started, the grievance procedure must end. A warden's directed to end it.

Why was Justice Gorsuch so worked up over this case? It seems that during his practice experience, he made such a proffer under Rule 50. So of course, all lawyers should be expected to the same. Or something like that.

Tutt did get in one laughter line. Barrett offered him a helpful comment of how the Court could rule for him, and leave the difficult questions for remand:

JUSTICE BARRETT: And we don't even have to decide what the standard is. You're saying that the standard should be, you know, without reference to any undisputed facts. But we don't necessarily even have to articulate a standard here, right, because there's some disagreement among the circuits on the majority side of the split about how to isolate that question of what is a purely legal issue. I mean, maybe we should let that percolate.

MR. TUTT: Yeah –Your Honor, yes. You can rule for us as long as it says reversed at the bottom -( Laughter.)

JUSTICE BARRETT: You'll take anything?

MR. TUTT: –we will take it.

Tutt also–in what I think is a first–asked for more time during his opening statement (maybe 15 seconds or so). It worked!

He claims this is –that this approach would avoid retrials in the event of successful appeals. But it would never happen. No one thinks it is right, and I doubt Mr. Younger will defend it here today. And if you'll permit me to go slightly over time, I'll just close by saying that the Court should reject a rule that would prevent appellate courts from collect –correcting clear legal errors, even when those errors can be intelligently reviewed on an undisputed record and when no party is prejudiced by that review. I welcome the Court's questions.

Amy Saharia, who represented the respondent also had a funny colloquy with Justices Gorsuch and Sotomayor. The upshot: trial courts are more fun than appellate courts.


MS. SAHARIA: --on appeal.

JUSTICE GORSUCH: --counsel, we used to live in a world of trials. Now nobody wants to try --everybody wants to do everything on the papers.

MS. SAHARIA: I go to trial, Your Honor.

JUSTICE GORSUCH: I miss it too. It's a lot of fun, isn't it?

MS. SAHARIA: It sure is.


JUSTICE SOTOMAYOR: More fun than here.


JUSTICE GORSUCH: I --I --I expect you're having fun here today too, though.

MS. SAHARIA: There's only one judge at trial.



Don't forget: Williams & Connolly lawyers go to trial!

The facts of the second case were perhaps even more eye-glazing. Lac du Flambeau Band v. Coughlin involved whether federal bankruptcy law abrogated tribal immunity. No, this was not a fun Section 5 or Indian Commerce Clause case. Rather, the case turned on interpreting the words of a statute. Still, the arguments were quite entertaining.

Throughout the argument, Pratik Shah, counsel for the tribe, referred to the "big four." That is, the four entities that are usually referenced in abrogation statutes: the United States, states, foreign governments, and Indian tribes. Shah probably spent a lot of time working on that phrase, which I found very effective. And the Chief Justice riffed on the sportsy-term:

MR. SHAH: But even there, Congress felt the need to then define that term and lay out the big four -

CHIEF JUSTICE ROBERTS: Well, I don't mean -

MR. SHAH: --in its definition.

CHIEF JUSTICE ROBERTS: It sounds a little bit like, you know, a college football poll, but there are --there are others here that I can imagine in other contexts would think --you'd think of them before you'd think of Indian tribes. I mean, it's United States, state, municipality, foreign state, agency of the United States.

Alas, Justice Sotomayor thought that term was not inclusive enough:

MR. SHAH: Sure, Your Honor. When I mean big four, I mean really when we're talking about abrogation because there really only are four entity --entities that this Court has recognized as having sovereign immunity in which to abrogate: the United States, states, foreign governments, Indian tribes. That's it.


Justice Alito?

Justice Sotomayor?

JUSTICE SOTOMAYOR: I would call it the big five. Territories.

MR. SHAH: Territories. Fair --fair enough. Thank you.

And --and, Justice Sotomayor, what I would add is the statute does include territories by name, Section 101(27). So, when there's doubt, it includes it by name. So now they've included four of the big five, even more in my favor.

You get it? The big four ignores the territories. And the Court has some experience with bankruptcy cases from Puerto Rico. 

For more levity,Justice Gorsuch offered an admittedly "silly" hypo:

JUSTICE GORSUCH: --before we leave that, though, let's say --I'll give you a silly hypothetical. Let's say I invite you to go to my refrigerator and take out either vanilla or chocolate ice cream and help yourself. Does that license you to take the last scoop of the chocolate-vanilla swirl ice cream in a separate container, maybe one with a note on it that says "reserved for a later birthday"?

I'm still not sure I fully understand the hypothetical, but I worry that Justice Gorsuch keeps ice cream in the refrigerator, rather than the freezer.

And since it was an Indian law case, you knew Justice Gorsuch would come ready to play. One colloquy focused on how to characterize an Indian tribe. In the process, Gorsuch called the Insular Cases "crazy." He said it quickly, so I thought I misheard him. But it's right there in the transcript:

JUSTICE GORSUCH: In many respects, a foreign and independent nation. You said similar things about the territories too. I mean, we actually, in the –in the crazy Insular Cases, said they are foreign to the United States in a domestic sense.

MR. RAPAWY: Well, if you were to conclude –

JUSTICE GORSUCH: Whatever that means.

MR. RAPAWY: Understood, Your Honor.

There it is. A Supreme Court precedent that the Court declined to overrule was crazy.

Finally, in other news today, the Court denied certiorari in several cases brought by oil companies. These defendants were sued by local governments in state court, and tried to remove the cases to federal court. I blogged about the issue here. Justice Kavanaugh noted that he would have granted granted certiorari in Suncor Energy v. Boulder (21-1550).

One last note. My recollection is that the Court used to provide courtesy paper copies of the order list. Is my memory fault? In any event, I learned today that only slip copies of opinions are handed out.