Once Is Not Enough, or How about Arguing Your First Two Supreme Court Cases Back to Back ... and Losing?

By Macpherson, Ian A. | Journal of Appellate Practice and Process, Spring 2003 | Go to article overview

Once Is Not Enough, or How about Arguing Your First Two Supreme Court Cases Back to Back ... and Losing?


Macpherson, Ian A., Journal of Appellate Practice and Process


I have no idea why I've agreed to do this piece. I'm writing in response to a request for my recollections about the experience (better characterized, perhaps, as the ordeal) of my first, and immediately ensuing second, oral arguments before the Supreme Court. As the title suggests, however, it is either because I've forgotten the stress of it all or, more likely, because having grandchildren has put things into perspective.

I won't bother you with all of the jockeying and wrangling that went on leading up to the arguments. The angling and cajoling regarding the writing of the briefs, who would moot court the arguments, and who would end up making the formal oral presentation were ... interesting. Suffice it to say that a lot of people who served in the Arizona Attorney General's Office back then were good enough to repose confidence in a mere assistant attorney general, and I thank them, especially then-serving Arizona Attorney General Bob Corbin, for it.

Right off the bat, know this: Mere words cannot adequately convey all of the aspects swirling around the effort to prepare for your first, let alone immediately following second, oral argument before the Supreme Court. This is particularly so if you are a state assistant attorney general dispatched, solo, to the banks of the Potomac in the dead of winter to argue two Indian tax cases where tribal certiorari petitions have been granted and the United States of America, through the Solicitor General, has been invited by the Court to "express its views." And George Washington thought he had it tough that winter. Hey, at least Washington won.

Since there are far too many facets of the experience to go into anything approaching an in-depth dissertation, and because any attempt to do so would be both boring and contrary to the objective of presenting the highlights, I've decided to share with you a few of the more ... let's just say ... memorable events.

First, full disclosure. I still think I was right. You expected something else? The two cases, Central Machinery Company v. Arizona State Tax Commission (1) and White Mountain Apache Tribe v. Bracker, (2) involved issues of state taxation of non-Indian activities taking place both within and beyond the boundaries of Indian reservations in Arizona. Justice Thurgood Marshall wrote the opinions, with Central Machinery decided five to four and Bracker decided six to three. My contention, as you might guess, is that the disputes if presented to the Court today could well be decided differently. (3)

That potential aside, I thought in my naivete that the fact that the two cases were scheduled for oral argument in tandem on Monday, January 14, 1980--Central Machinery first, Bracker second--was more of a challenge than a sentence. Relatively new to the practice of law (I'd been admitted only in 1971), I thought that the opportunity to appear before the Court and actually argue two cases was, to understate the matter, exhilarating. With the vast majority of attorneys never having even a remote chance of actually arguing one case to the Court, let alone their first two on the same day, the enormity of the opportunity relegated other logical concerns to, let us say, a state of secondary importance.

This leads me to my second point and Words of Wisdom. There are two Immutable Rules that a first-time Supreme Court oral presenter should observe.

   Rule 1: Never voluntarily undertake the briefing and
   oral argument of two separate, unconsolidated
   Supreme Court Indian tax cases set to be heard in
   tandem, in only one of which you were lower court
   record counsel, unless you are the Solicitor General of
   the United States.

   Rule 2: Always refer to Rule 1.

All kidding aside, I have no idea what I was thinking. In order to adequately prepare for all of the complicated and unanticipated twists and turns--the state of the record aside--that will invariably emerge as the briefing and preparation for oral argument progress, there is simply no time to do everything necessary, let alone do it well. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Once Is Not Enough, or How about Arguing Your First Two Supreme Court Cases Back to Back ... and Losing?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.