A bunch of bloggers have pointed out Tony Mauro’s insightful piece on representation of criminal defendants in the Supreme Court. The gist of Tony’s piece is that criminal defense lawyers are often outgunned in the Supreme Court, and that it hurts criminal defendants and defendants’ rights more bradly. I agree that this is a problem, and have a few thoughts to add beyond those in Mauro’s piece.
First, I think it’s essential to focus on the certiorari stage as much as the merits stage. Here is what often happens. Criminal cases frequently get to the Supreme Court when a state supreme court reaches an outlier result in favor of a criminal defendant. The outlier creates a split, and the state petitions for certiorari on the basis of the split. The defendant’s lawyer has never been before the Supreme Court before, and just rehashes his merits brief in his Brief in Opposition (BIO) rather than addressing head on the reasons why the Court should decline to excercise review. Without the benefit of a good BIO, the Court grants the case, and the lawyer from state court is tasked with defending the state court decision below. The lawyer figures that he has won the case in the state Supreme Court, so he can pretty much rehash what he said below in front of the U.S. Supreme Court. The result is a relatively unhelpful brief (and often a very weak argument).
The best way to improve this situation, I would guess, is for interested organizations and individuals that are skilled at Supreme Court litigation to watch the petitions that are filed instead of the cases that are granted. They should watch for strong petitions, and then approach respondents and ask them if they need help with BIOs. My sense is that offering help after cert has been granted is often too little, too late.
Second, I think organizations that file pro-defense amicus briefs in criminal cases could be a bit more savvy. The best briefs filed before the Court know where the Justices are, and they try to respond to the Justices in light of that. They are designed to find a majority of the Court, and to persuade the Justices that most need persuading, rather than to swing for the fences. My personal impression is that amicus briefs filed on behalf of criminal defendants at the Supreme Court too often miss this: They sometimes read as if they were trying to persuade Justice Brennan instead of today’s swing Justices.
Dan Filler has more thoughts on the article over at Concurring Opinions.
I agree with you entirely on the BIO point.
But not so much on this: “My personal impression is that amicus briefs filed on behalf of criminal defendants at the Supreme Court too often miss this: They sometimes read as if they were trying to persuade Justice Brennan instead of today’s swing Justices.”
Is that right? The amicus briefs I most commonly read in such cases are those of NACDL, and they seem pretty savvy, and Court-centered to me. Is that an accurate impression?
You write “Here is what often happens. Criminal cases frequently get to the Supreme Court when a state supreme court reaches an outlier result in favor of a criminal defendant. The outlier creates a split, and the state petitions for certiorari on the basis of the split…”
Is this really that common? When I worked for my state’s AG, I don’t think we ever sought cert from an unfavorable state supreme court ruling, although criminal defendants sometimes did. We did sometimes seek cert from a federal court of appeals opinion we didn’t like, but the defense attorneys in those habeas cases tended to be relatively sophisticated.
As with Marty, I totally agree about the brief in opposition. It’s probably the most important stage of Supreme Court advocacy, and too few lawyers who practice mostly in lower courts appreciate that. I don’t have any experience with doing criminal cases in the Court, but my experience in the civil rights area leads me to think that respondents’ counsel probably get approached at the petition stage more than you think. But it’s often hard to convince the person who won below that he or she doesn’t have the right idea about how to keep the case out of the Court.
I agree with Marty as well on the amicus briefs. I’ve certainly read a few criminal-defense amicus briefs in the Court that looked like they were written for Justice Brennan, but I’ve also read a number that looked pretty savvy. Failure to try to count to five is, alas, a pretty broad problem in Supreme Court advocacy (though usually not among the repeat-player advocates). I’m not sure that criminal-defense amicus briefs are any different from other categories of briefs in that respect.
At the merits stage, I think the biggest thing a lot of non-repeat-player lawyers miss is that the Justices don’t really consider themselves bound by any past precedent — certainly not lower court decisions, which most of them couldn’t care less about, but to a large extent even their own cases. Stare decisis is the general rule, but Supreme Court justices by and large feel freer to find exceptions to their precedents than do lower court judges, and they always have the power to overrule those precedents. That makes lawyering in the Supreme Court very different from lawyering in the lower federal courts, where the judges consider themselves bound not just by Supreme Court precedent but almost always by prior circuit precedent as well.
I have yet to get a case into the U.S. Supreme Court, but I have spent a lot of time arguing criminal cases one court below (state supreme court and federal appeals court). I don’t see what makes the U.S. Supreme Court so different than practicing in a state supreme court with a discretionary docket.
When it comes to BIO’s, too many lawyers (even experienced ones) don’t understand the difference between explaining why a case isn’t worth the time of a supreme court and explaining why the lower court was right. But that applies to state high court cases, too. Like the U.S. Supreme Court, state high courts are willing to overrule themselves and generally don’t care what lower courts have said.
While a competent and experienced state court appellate practitioner may need help with knowing the players in D.C., the article doesn’t articulate what’s so different about practice in the U.S. Supreme Court.
My advice to experienced U.S. Supreme Court practitioners would be to make sure that you’re offering help, not trying to take over the case. Yes, the U.S. Supreme Court is a whole new ball game, but respect the fact that the state court lawyer did win the case below, which is usually very hard to do in a criminal case. Offer to coach the lawyer for oral argument, but don’t try to take argument time unless the lawyer demonstrates incompetence.
Most importantly, understand that IT IS NOT YOUR CASE. You are not in control. You can try to persuade the lawyer to take your help, but if the lawyer is obstinate, the most you can do is to file a quality amicus brief. If you’re that much smarter than the lawyer, the Court will pay attention to your brief whether it’s from an amicus or the respondent.
Dear “state criminal defense lawyer”:
IT IS NOT YOUR CASE, either. Nor are you “in control.”
It is the criminal defendant’s case and, truth be told, the only variable that either lawyer should weigh is which advocate’s representation (and argument) in the SCOTUS would be in the best interest of the client. That’s not to say that the answer to this question isn’t the trial (or state appellate) lawyer. Sometimes, it is. But in far too many cases in recent years, the client would have been much better served if a seasoned SCOTUS advocate had taken over (and argued) the case.
Dear Marty Lederman,
Fair point. I shouldn’t have said, “it’s not your case.” I should have said, “it’s not your job” to watch out for a client who’s not you’re client. As long as the client is satisfied, it’s the client’s lawyer’s decision as to how to best protect the client’s interests, not someone who didn’t give a damn about that client until the case reached SCOTUS. So let me be a little skeptical about how much the “seasoned SCOTUS advocate” really cares about any particular client.
Part of the reason that few if any “seasoned SCOTUS advocates” will help with BIO’s is that they don’t want to bother with a client until that client has a case on the merits before the U.S. Supreme Court. They want to do the headline work while letting others do the anonymous grunt work. If “seasoned SCOTUS advocates” want to help as many criminal defendants as possible, they need to concentrate on helping appellate lawyers in intermediate state appellate courts. That’s where appellate advocacy matters most and suffers the most.
Does it really matter if the “seasoned SCOTUS advocate” writes an amicus or the brief of a party? I don’t think so. If your ideas are strong and well presented, you will be just as effective regardless of the color of your brief’s cover.
As to oral argument, I think you’re right that lawyers need to do a gut check about what’s in the client’s interest. But the SCOTUS bar has become very clubby recently, and everyone there had to do their first SCOTUS argument sometime. I’m also not convinced that doing a SCOTUS oral argument is all that different from any other oral argument. The key rules apply: 1) know the facts and the law of your case backwards and forwards; 2) respect the traditions of the court, 3) learn what the judges on your case expect and prepare to meet those expectations, 4) answer questions directly, etc. etc. etc. A good lower court oral advocate will do just fine in SCOTUS.
I’m in the same position as the self-appointed “seasoned SCOTUS advocates” when it comes to my state supreme court. I watch the state court of appeals for cases with state supreme court potential. When I see one, I call the lawyer and offer help. I’ll send them briefs I have written on the subject, and I ask them to give me a call if they don’t plan on appealing their loss or protecting their win in the state supreme court. If I am unsure as to their abilities (or if I have a different take on the issue than they do), I can write an amicus. At oral argument, I grit my teeth and hold my tongue. I also help trial and appellate lawyers on cases that will never see any court higher than a state court of appeals. That way, the lawyers know I am there to help, not just to take over when the case gets interesting.
In the end, I agree that some lawyers handle SCOTUS cases even though they shouldn’t. But some “seasoned SCOTUS advocates” are at least a tad bit overconfident in their own superiority.
Every case belongs to the client. Yet it seems bizarre to imagine that I am entitled to approach any lawyer of my choosing and suggest that I could do a better job of representing his client, at which point the the best interests of his client require him to conduct a dispassionate evaluation of whether I am correct.
I think I am a great researcher and writer. Would it make sense for me to scan the appellate docket and call everyone who files a new case to suggest that I could do a better job of writing the appellate brief than they would? Are they all required to conduct a neutral evaluation of whether I am, in fact, a better writer?
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scdl,
Is it really true that it’s hard to find experienced Supreme Court advocates who help with BIOs? I know I do it a couple or more times a year, and I practice on only a *way* part-time basis. I do it because I want to help make good law, or keep the Court from making bad law, in areas I care about (usually civil rights). I know other lawyers who have a fair amount of Supreme Court experience who do similar things. (I wouldn’t be surprised if some of the lawyers on the NACDL committee discussed in the Mauro article did.)
I don’t think the problem is that lawyers with Supreme Court experience don’t help with BIOs in plausibly certworthy cases; I think the problem is that respondents’ counsel don’t ask (and may not even know to ask), and they don’t always know whom to ask if they want to. (And it’s not just experienced Supreme Court advocates who want to do the “headline work”; it’s certainly been known to happen that a lawyer who has carried a case since the trial court has an almost cavalier attitude about the cert. stage, as if they wouldn’t mind defending their victory in front of the bright lights at One First Street.)
If you’ve been working on a set of issues for a long time and have a real commitment to an area, you want to make sure that your side of the issues get the best representation possible in the Supreme Court. Once the case gets to the Court it’s no longer about this client alone; it’s about the whole area of the law. If an inexperienced lawyer for a party waives a crucial argument in the brief (maybe b/c he or she doesn’t realize it’s crucial), that waiver doesn’t just hurt the client; as a practical matter it can harm a whole set of litigants and potential litigants. So it makes sense that folks who have spent a lot of time with Supreme Court jurisprudence in the area will want to have a greater role when a case is being handled by someone who hasn’t.
I totally agree that some frequent Supreme Court advocates can be arrogant when they come into a case and try to sideline the original counsel. They shouldn’t do that.
I’ve got a lot less Supreme Court experience than a lot of people. In the cases I’ve worked on I’ve collaborated with really outstanding solo practitioners from places far from DC who have handled the case from the very beginning, without whose work we wouldn’t even have a plausible issue in the Court. But I think that I have added some value as well. The key is for everyone to have the same goal: to get the best result for the client and, if possible, make good law. Sometimes egos get in the way of that goal (though in the merits cases I’ve worked on, they really haven’t), but I don’t think people who do a lot of Supreme Court work are more likely to have those kinds of egos than people who are doing their first case in the Court.
Rather than speculate about egos, I would focus on the possibility that members of the Supreme Court bar, particularly those who specialize in criminal law (or any area), may be overspecialized to the point of having a vested interest in directing the development of the law. They may think certain cases are relevant, certain doctrines should be prioritized over others, certain arguments necessarily fit with certain facts, when, by stark contrast, independent or creative or dynamic thought could yield an innovative viewpoint that persuades on-the-fence Justices.
Continuing with that line of thought, the composition of the Court changes, e.g., Roberts and Alito are here now, and Justices reverse their old opinions, see unexpected distinctions, or simply abandon causes. It is not necessarily helpful to have an advocate who is set in his ways telling you the argument must be made in way XYZ or else it is a loss. Maybe XYZ would have been a great way to make the argument before Roberts and Alito joined the Court; maybe XYZ would be a great way to make the argument if Breyer hadn’t changed his mind or Scalia hadn’t seen a crucial distinction in the facts; or maybe XYZ assumes that certain votes are out of reach when they aren’t. Maybe the ABC argument can persuade Scalia if you find a textual hook in a different constitutional provision, or if you say you don’t need to overturn a particular case to reach a certain result, etc.
It might be the case that seasonsed SCOTUS advocates will weight down your brief with weak issues that only three Justices or so are willing to accept. If we were talking about John Roberts, sure, accept his help as an appellate advocate — his win ratio is impressive! But is every “seasoned SCOTUS advocate” really so good? I am sure most state lawyers would be advised to take help from Laurence Tribe, but what is Tribe’s win-loss ratio?
On the other hand, I think mooting sessions are extraordinarily (and most) helpful and advice on the Court’s procedures is helpful as well. Certainly, lending such lawyers a copy of Supreme Court Practice is a good thing.
Sam Bagenstos hits most of the right points. I agree that state court practitioners should gratefully accept help from “seasoned SCOTUS veterans.” But the “seasoned SCOTUS veterans” should make sure they are offering to help the state court attorney, not to take over. There are a lot of people willing to help without taking over, but there are also some unseemly ambulance-chasing “seasoned SCOTUS veterans.” Calling a lawyer and telling him that he should withdraw because you are a better lawyer is unprofessional behavior. The fact that the behavior is tolerated among “seasoned SCOTUS veterans” besmirches the whole group.
BIO’s and cert petitions are where “seasoned SCOTUS veterans” can help the most. Once a case is accepted on the merits, the same basic appellate lawyering skills apply. Any good lawyer who works hard enough can write a good brief and make a good argument once a question has been framed. But pitching a case to SCOTUS is hard. You have to pay attention to national trends that most state court practitioners just don’t follow. Defending against cert petitions is also an art. I do that in state court, and I am often appalled at how some “seasoned” state court lawyers use state court BIO’s to argue the merits instead of arguing why the case isn’t worth the high court’s time.
I disagree with Sam Bagenstos on only one key point. He writes, “Once the case gets to the Court it’s no longer about this client alone; it’s about the whole area of the law.” While that’s how you get the case to SCOTUS and argue it in SCOTUS, as a client’s lawyer, I only care about other criminal defendants to the extent that their interests are the same as my client’s.
In one of my state supreme court cases, I conceded a point that was irrelevant to my client, but that I knew would hurt other defendants. I won the case and ended up shaving about 5 years from my client’s prison time. That case has been cited three times more often for the point I conceded than for the point I won. So arguably, I made the law worse for many future criminal defendants in order to save one client 5 years. But that’s what a good lawyer does for a client.
Even in SCOTUS, the client’s lawyer represents “the client alone,” not a class of future clients. “Seasoned SCOTUS veterans” should not forget that basic ethical duty.
scdl,
Obviously if there’s a conflict between the client’s interests and the lawyer’s broader views about where the law should go, the client’s interests come first. But that’s not the kind of situation I was talking about. Often, the concern is that poor framing and presentation of the arguments will hurt this client *and* other similarly situated litigants. My only point was that in *those* circumstances it makes sense that lawyers who care about the law in the area would not want to “grit their teeth and hold their tongues,” even if the client is satisfied.