Spring 2011

Oyez! Oyez! Oyez!

– The Wilson Quarterly

There are times you should not carry your argument to its logical conclusion.

In her two decades of practicing law, Lisa S. Blatt has argued 30 cases before the nation’s highest court, more than any other woman in the country. Her up-close-and-personal vantage point has taught her a few things about life at the Supreme Court.

At oral argument, each side’s lawyer has 30 minutes to “present” her case, which really means that she will be peppered by tough questions from nine of the smartest people in America. Well, just eight in practice, since Justice Clarence Thomas hasn't spoken at oral argument in more than five years. In Blatt’s opinion, that is “a blessing.” Eight justices are plenty!

The justices, particularly Antonin Scalia and Stephen Breyer, purposely ask outlandish questions in order to reveal the limits of each party’s legal reasoning. In one case involving a government property seizure, Justice Breyer asked the government’s lawyer whether his argument implied “that the Constitution would permit, in your view, the Taj Mahal, for example, to be forfeited if it was once used to sell a teaspoonful of marijuana.” Blatt says she half-expected the lawyer to respond, “Justice Breyer, are you crazy?” But he didn't take the bait, and instead outlined under what circumstances that would indeed be the case.

Nevertheless, there are times you should not carry your argument to its logical conclusion: “Whatever you do, don’t say, ‘The government can ban books.’” This is essentially the mistake government lawyers made during the 2008 oral argument concerning corporate campaign expenditures in Citizens United v. Federal Election Commission. The justices wondered whether the government’s logic in defending limits on corporations’ spending in political campaigns could lead public libraries to ban a 500-page biography published by a corporation that ended with the sentence, “So vote for person X.” The lawyer’s answer was yes, and the government subsequently lost the case 5–4. In such instances, Blatt recommends either “tossing logic and consistency entirely out the window” or rethinking your argument altogether.

Blatt also makes some clear-eyed observations about the Court’s role in American law. “Constitutional change is inevitable,” she says. Judges often espouse restraint, but the truth is that Supreme Court cases are a zero-sum game: Each decision expands the rights of either individuals or the government. When it comes to which cases the Court hears, “coordinated and strategic movements” and amicus curiae briefs (those submitted by interested parties) have gained influence in recent years.

Each year, only one percent of petitions filed are heard by the Court, about 70 in all. With so few cases heard, it’s a rare privilege to stand in front of the Court’s burgundy curtain—rarer yet if you’re a woman. “The courtroom is a battlefield,” Blatt says. Prepare to fight.

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The Source: “In Front of the Burgundy Curtain: The Top Ten Lessons I've Learned About Advocacy Before the Nation's Highest Court” by Lisa S. Blatt, in Green Bag, Autumn 2010. 

Photo courtesy of Flickr/John Marino