Academic journal article Journal of Appellate Practice and Process

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

Academic journal article Journal of Appellate Practice and Process

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

Article excerpt

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. …

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