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Arguing Before SCOTUS: An Advocate's Perspective

What's it like to argue before the Supreme Court of the United States? A leading high-court advocate offers insights and tips.

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Kannon Shanmugam (via YouTube)

One question I often get asked, as a lawyer turned writer/editor/speaker, is whether I miss practicing law. In general, no. But if I could return to active practice for one experience, I’d want to argue before the United States Supreme Court.

What is it like to appear before SCOTUS, and how has the experience changed over the years? Earlier this week, I attended a talk hosted by the Columbia Federalist Society entitled Arguing Before the Supreme Court, featuring one of the nation’s top Supreme Court advocates: Kannon Shanmugam, chair of the new Supreme Court and appellate practice at Paul Weiss. (I also wound up offering commentary on Shanmugam’s talk after former Solicitor General Don Verrilli, who was originally scheduled to serve as commentator, was unable to attend.)

As regular readers of ATL will recall, in January Shanmugam left Williams & Connolly, his professional home for more than a decade, to launch an appellate and Supreme Court practice for Paul Weiss. What motivated his move? If I had to guess, I’d cite three factors: (1) the chance to build an appellate/SCOTUS practice from the ground up, as he did at Williams & Connolly, but this time within the context of a global, full-service law firm; (2) the opportunity to get involved in law firm management, as managing partner of Paul Weiss’s D.C. office, which is looking to grow; and (3) big bucks. (Paul Weiss profits per partner hit an eye-popping $5 million in 2018, which is around three times the estimated PPP at Williams & Connolly.)

Shanmugam has argued a whopping 27 cases before the Supreme Court — and, like many top SCOTUS practitioners, he got his start arguing before the Court when he served in the Solicitor General’s Office. But that wasn’t his first exposure to high-court argument; he previously clerked for the late Justice Antonin Scalia.

As Shanmugam explained during his talk — which he delivered without notes, speaking in what seemed like full paragraphs — his former boss transformed oral argument at the Court. If you listen to recordings of SCOTUS arguments from decades ago, which is quite fun — and which you can do over at the indispensable Oyez, among other places — you’ll notice the difference between the “B.S.” and “A.S.” periods (my terms, not Shanmugam’s). Before Scalia, advocates would often go on for minutes at a time without interruption from the justices. After Scalia, advocates typically get confronted with questions right out of the gate, and spend most of their argument time fielding queries from the justices.

Justice Scalia took a Socratic approach to oral argument, Shanmugam said. The justice didn’t spend a huge amount of time poring over the briefs before the argument; instead, he wanted the opportunity to explore the case fully through interchange with the advocates.

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The term that appellate advocates use to refer to judges or justices with tons of questions is a “hot bench” — and as Shanmugam noted, the Supreme Court bench has only gotten hotter over the years. Pretty much every justice on the current Court replaced a justice who was less active as a questioner (with the possible exception of Justice Clarence Thomas — but even he broke his silence recently).

This approach to oral argument has spread from the Supreme Court to the circuit courts (which might not be surprising, given how many circuit judges clerked for the Court themselves). So advocates have had to adapt, and now must be prepared for rapid-fire questioning before both the high court and lower courts.

What does this mean for how lawyers prepare for argument? Yes, moot courts are important, and Shanmugam does at least two before every argument. But the core of his preparation is thinking about the hardest questions for his side and how to best answer them.

Responding to tough questions is also done through the briefs, of course. Shanmugam explained the difference between briefing and oral argument in this way: “The briefing is about why you should win, and the argument is about why the justices should want to rule for your side.”

And how do you get the justices on your side? Because of the active and frequently non-linear questioning, it’s hard for a lawyer to argue in the same organized, logical manner of the briefs. As a result, much of the skill of being a Supreme Court advocate involves turning hostile questions to your advantage and using them to pivot to your positive points.

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What can we expect from the Court’s newest member, Justice Brett Kavanaugh? Shanmugam said that Justice Kavanaugh seems to have made a smooth transition from the D.C. Circuit to SCOTUS (which isn’t always the case for justices in the first few months on the Court). He seems comfortable and well-prepared on the bench, participating actively in argument without being overbearing.

In terms of jurisprudence, Shanmugam expects Justice Kavanaugh to end up pretty close to Justice Scalia (although maybe not as close to Justice Scalia as Justice Neil M. Gorsuch, who filled Scalia’s former seat). Justice Kavanaugh places great weight on constitutional and statutory text — not surprising, given his previously expressed views on interpretation — but he might be a little more pragmatic and flexible than Justice Scalia in his approach. For example, some of Justice Kavanaugh’s questions have delved into the history of a statute’s development, which was not often seen from Justice Scalia, the most famous critic of the use of legislative history. (Shanmugam did offer the caveat, though, that one shouldn’t read too much into oral argument; just because a justice asks about a certain subject at argument doesn’t mean she will consider it when deciding the case or writing the opinion.)

Of course, a full assessment of Justice Kavanaugh will have to wait until he’s decided more cases, especially hot-button or high-profile ones. The current Term, in Shanmugam’s view, is not exactly overflowing with big-ticket cases. Some have wondered whether this might be intentional, the result of the Court deciding to duck a lot of controversial issues in the wake of the heated confirmation process for Justice Kavanaugh. But Shanmugam didn’t put much stock in that theory, noting that some Terms are just more exciting than others. (I share this view; it seems to me that the Terms seem to alternate, with an exciting Term followed by a sleepy one.)

So not all Supreme Court Terms are created equal, and not all cases are either. But if you have the privilege of arguing before the Court in any case, no matter how boring, treasure it. Only a tiny, tiny fraction of American lawyers get to argue before the Supreme Court even once — to say nothing of 27 times.

Disclosure: I spoke to the Columbia Federalist Society back in February, for which I received Fed Soc’s standard honorarium.

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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