When presenting cases before the Supreme Court is your duty

The late Supreme Court Justice Antonin Scalia made the court “dynamic.”

Noel Francisco mentioned that attorneys once had the freedom to present arguments at their own tempo prior to engaging with justices’ inquiries. However, “Scalia altered that interaction because he was the first to actively question.” Since then, other justices have adopted Scalia’s approach, providing lawyers fewer chances to influence the dialogue.

Francisco is well aware, having been involved on both sides of the bench. He interned for Scalia from 1997 to 1998 and subsequently held the position of U.S. solicitor general during the initial Trump administration, advocating cases before the Supreme Court for the government.

Last Friday, Francisco was accompanied by Elizabeth Prelogar, J.D. ’08, and Neal Katyal, who acted as solicitors general during the Biden and Obama administrations, respectively. In a discussion with Richard Lazarus, the Charles Stebbins Fairchild Professor of Law, the trio provided an insider’s glimpse into the role and how it has evolved since 2017 with the introduction of four new justices.

Shifts in the court’s makeup over the last two decades have influenced the atmosphere and the dynamics between the justices and advocates, as well as among the justices, the trio noted.

There can be a “learning phase” for everyone involved, even the other justices, when a new justice is seated, they remarked. At times, a particular justice, like the impactful conservative Scalia or centrist Anthony Kennedy, often a “swing” vote, can significantly affect how attorneys present their cases.

Reflecting on one of his initial appearances before the court, Katyal noted that Justice Sandra Day O’Connor “was very concerned with the details of the case.” However, after her departure, inquiries about facts became “merely one facet” of the court’s dynamics during oral arguments until Justice Sonia Sotomayor arrived in 2009.

According to Katyal, the justices generally “didn’t have their opinions formed as frequently as I sense they do now.” Kennedy, in particular, “often didn’t decide what he was going to do during oral arguments in many of the significant cases,” which allowed lawyers on both sides greater chances to sway the court.

Prelogar acknowledges Justice Amy Coney Barrett, a former law school educator, for posing some of the most challenging questions.

“She possesses an extraordinary ability to dig multiple layers deep into an issue, always very fairly, in a manner that remains entirely within reason, and with a genuine intention to fully comprehend the consequences of the government’s stance in a specific case,” Prelogar stated.

Kagan, the previous HLS dean, is by far the most formidable, according to Francisco and Katyal, as she “dissects your case” and tests the absolute limits of one’s arguments.

Without a doubt, they asserted, it can be daunting, especially during the initial cases presented before the court.

Francisco recalled mistakenly referring to Justice Ruth Bader Ginsburg as Justice O’Connor, prompting uproarious laughter from the audience. They each sought counsel from seasoned colleagues or trusted law professors on how to manage their anxiety and effectively utilize their time at the podium.

Katyal credited Lazarus’ advice for assisting him in overcoming his early job anxiety by perceiving the interactions with the justices at oral arguments as a collaborative exchange rather than a conflict to win.

No matter the outcome, whatever actions you take, remember who the client is and refrain from making statements you might later need to retract.

“When you represent the United States and you find yourself at the podium in the Supreme Court, you’re committing the United States to a certain interpretation of the law. You’re articulating this with the authority of the federal government, and you must exercise caution, ensuring you aren’t making ad hoc decisions regarding what the U.S. positions will be,” Prelogar explained.