What is it like to argue before the Supreme Court?

0:03It is a pretty daunting experience for sure. We have nine justices, all of whom are actively questioning you about a case that almost by definition was hard enough for other courts to decide it differently. As far as professional experiences go, it's about as daunting as it gets. But if you have an argument and it goes reasonably well, it's also about as exhilarating a professional experience as you're going to have.

0:32You've never going to feel like your over-prepared to argue a case in the Supreme Court. There's always something more that you could do to get ready. There's another case you could read and delight. To me, one of the critical things for getting ready for an oral argument in the Supreme Court is to do moot courts. That's when we get other lawyers together in a room and have those other lawyers ask the questions you think the justices would ask you. In the process of trying to answer those questions and run through your answers, you'd be surprised at how much your case gets refined, how much your answers get more concise or more strategic in terms of knowing exactly what you can give away and what you can't give away. To me, if I'd say there's one thing that's absolutely critical to the preparation process, it's the moot courts. On a really practical level.

1:30The thing that surprised me was how close the justices are. If you're used to argue in the courts of appeals, every courthouse is a little bit differently, but usually you're ten or 30 feet away from the judges and so they'd seem very removed from you. But you really feel like when you're arguing the Supreme Court, if you reached out from the podium and the Chief Justice reached out from his bench, you get a chance, you are very close. When I first started arguing in front of the Supreme Court, the Chief Justice was William Rehnquist, who was a pretty imposing figure up there. I mean, not that the current justices aren't, but Chief Justice Rehnquist was very strict. When I had my first argument, my biggest reaction to it was, wow,

2:19the Chief Justice is right there and if I dared go over my allotted time or make any other transgression, I'm in a lot of trouble. Just in a really practical level, that's what makes it different. On a slightly more legal level, if that's the right word, the big difference is two-fold. One, in most courts, you have somewhere 1-3 judges asking you questions. With nine justices asking you questions, you can really get hit from all different sides and you really have to be on top of your game. But then the other thing that makes it different is if you're in the federal courts of appeals, for example, all of those judges are bound by Supreme Court cases that are on point. You can spend a lot of time arguing about what a Supreme Court case meant.

3:11But when you're in the Supreme Court, some of the justices you may be arguing in front of were in dissent in one of the cases you're arguing about and so they may not be bound by that case, they don't have to be. You may also be arguing in front of the justice who wrote the case. The lower courts, you can spend a lot of time saying, well, the court must have been x, y, and z. But when you're talking to the author, it's very hard to try to convince them that the opinion meant something other than they tell you what it means. Those are some of the differences that arguing in the Supreme Court has from arguing really anywhere else.