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Appealing a Lawsuit to the US Supreme Court
Appealing a lawsuit to the US Supreme Court seems to be very fashionable in certain circles. Afterall, no one likes to lose. Absolutely. No. One.
And that makes taking the case to the highest court in the land, for one more bite at the apple sound very appealing (no pun intended). But what factors should a business consider before taking the plunge?
This is a SPECIAL BONUS episode.
It’s an interview with Clint Vince from the No Nonsense Legal Literacy Vault.
Some of you may remember that long before I started this podcast I did a series of teleseminars under the Ask the No Nonsense Lawyer banner where I invited prominent lawyers to share their insights about the US legal system that’s relevant to the business community.
Even though this interview originally aired in 2010, the mechanics, the planning, and factors to consider when appealing a lawsuit to the US Supreme Court continue to be relevant both now and into the future.
What’s also striking and why I released it as a “trick or treat” Halloween bonus is how scary it is to realize how easily the composition of the court and the philosophical differences between the justices can swing decision and upend long standing legal precedent.
What You’ll Discover About Appealing a Lawsuit to the US Supreme Court:
* What factors to consider when appealing a lawsuit to the US Supreme Court
* How changes in the court’s composition causes philosophical realignment that can impact your case
* The role seniority plays in the functioning of the court
* Why the Solicitor General of the United States can be helpful when appealing a lawsuit to the US Supreme Court
* And MUCH more!
Guest: Clint Vince
Clint Vince is the chair of Dentons’ US Energy Practice and Co-Chair of Dentons Global Energy Sector.
Clint is rated as one of the leading energy lawyers in the US and has directed the expansion of the US Energy team into a premier practice that includes professionals spanning the continent coast-to-coast, offering a full range of services to energy industry clients. He is widely recognized for his cutting-edge theories and solutions within the energy industry and has a top-tier litigation track record. Recently, Clint created the groundbreaking Dentons Smart Cities & Connected Communities Think Tank and he is one of the industry leaders on this subject.
Clint remains at the forefront of energy developments and continuously handles some of the highest profile cases in the industry. His experience involves major project development, legislative and regulatory advocacy on behalf of public and private clients, and litigation and appellate cases including US Supreme Court advocacy. Clint has handled more than 650 regulatory and litigation proceedings and argued before trial and state appellate courts; numerous US District Courts; and the US Courts of Appeals for the First, Second, Fourth, Fifth, Eighth, Tenth, Eleventh and District of Columbia Circuits; and the Supreme Court of the United States, in some instances multiple times. He also has handled too many complex energy transactions, negotiations and projects to count.
Clint has been described by clients as “brilliant, dedicated, professional, experienced. He has an amazing ability to work with each Board Member and with each Staff Member on their own level. He has the ability to make each one feel respected and valuable, and to guide even the most contentious topics to amicable resolve. He can also stand against the fiercest opponent successfully; his track record for this company proves that fact. Clint has been victorious in every lawsuit we have been involved in…for the last 30 years.”
Dentons was named the “Energy Firm of the Year” by Who’s Who Legal Awards in 2015, 2016, 2017 and 2021. Clint and his team of energy professionals, also were awarded Energy Daily’s Leadership Award for “Most Dynamic Energy Practice” in the US. Clint was recently honored as one of the 2015 “Energy & Environment Trailblazers” in the National Law Journal’s inaugural supplemental issue. He also has been recognized by Best Lawyers in America, Chambers USA, The Legal 500 and Washington, DC, Super Lawyers.
APPEALING A LAWSUIT TO THE US SUPREME COURT
Welcome to BCN the weekly podcast for smart executives, managers, and entrepreneurs looking to improve business performance and their bottom line.
I’m your host Hanna Hasl-Kelchner and I today I want to share with you an interview Clint Vince from the No Nonsense Legal Literacy archive.
Let me see if I can get into the vault [footsteps]
Some of you may remember that long before I started the BCN podcast I did a series of teleseminars under the Ask the No Nonsense Lawyer banner where I invited prominent lawyers to share their insights about the US legal system that’s relevant to the business community.
Oh, wait . . . I need the combination, . . . hmmm, let’s try [clicking and creaky door]
YES – here it is. July 2010 – Appealing a lawsuit to the Supreme Court.
Why am I sharing this episode? What can we learn from 2010?
Well, what struck me when I listened to it again are 3 things:
First – How the discussion of what businesses can expect when appealing to the Supreme Court and the factors they should consider are still the same. Those things are as important to know today when managing business risk.
Second, how decisions from the US Supreme Court have a lasting and cumulative effect in ways that aren’t always obvious. You’ll hear Clint talk about the Citizens United case which was a hot case in 2010 because the court’s ruling over turned a nearly a century of precedent by allowing corporations to make unlimited political contributions.
Third, Clint’s discussion of how changes in the composition of the court lead to philosophical realignments and how those changes affect how the constitution and other laws get interpreted is a conversation we could have been had over coffee this morning – as are his observations about the justice’s confirmation process.
Which at that time was for Justice Kagan who was seeking confirmation from being Solicitor General of the United States. It was relatively tame compared to the confirmation process of Justices Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett and that contrast really puts things into perspective.
So please sit back and enjoy. Clint Vince is the quintessential Washington Lawyer, a lawyer’s lawyer, who has been named a super lawyer and as a leading energy attorney has garnered more accolades than I can list. He is currently the chair of Dentons’ US Energy Practice and Co-Chair of Dentons Global Energy Sector.
It’s a privilege to have him on the show and to call him a mentor and a dear friend.
And now from the archive, here we go.
When it comes to lawsuits, we all want to win. We hate to lose, especially when we have a case on appeal, and especially when that case is in front of the US Supreme Court. Hello, I’m Hanna Hasl-Kelchner. Welcome to ask the no nonsense lawyer. Today’s special guest has an extraordinarily high success rate in the courtroom. He’s a Washington super lawyer and chair of the global Energy Practice at the international law firm of Sonenshein Nath. You may have seen him on any TV discussing the challenges New Orleans faced after Hurricane Katrina and rebuilding its energy grid. It’s a tremendous pleasure to have him here today and a great privilege to call him a personal friend and mentor. So, here’s a great big, no nonsense welcome to none other than Mr. Clint Vince.
Hello, Hannelore. How are you?
I’m doing well. How are you?
Great. It’s great to be talking to you tonight.
Well, I am so happy that you’re here. And, Clint, would you agree with me that winning a lawsuit is a pretty big deal?
Oh, yeah. I mean, that sometimes can be the difference between a person’s personal freedom or lack of freedom or whether a corporation can continue to exist. Or in the case of the Supreme Court with the Rehnquist court, who will be president of the United States.
Those are really good points and all very, very important and serious consequences. You know, when it comes to the three branches of government, the court system is probably the most mysterious and least understood by people who aren’t familiar with it, especially at its highest levels at the Supreme Court level. Would you help us understand how changes at the Supreme Court are relevant to Main Street and the business community?
Well, if you look at the recent decisions of the U.S. Supreme Court, they impact everything from campaign giving to personal right to bear arms to the rights of criminal defendants, to whether statutes or lower court decisions are going to be upheld. So Supreme Court, the highest court in the land, and it really impacts every citizen.
Well, it’s got a huge reach. Tell us a little bit about the makeup of the court. Not in terms of the names, but I mean, how the composition and the appointment of a new justice can really make a difference.
Well, it’s a great question, because with each new justice that is appoint in an urban quite a few in the past few years, the entire alignment on the court changes. And that can have huge impacts on the ultimate decisions of the court.
Give us an example.
Yeah, just look at what happened with the Citizens United case, which is probably the most controversial case and center stage case that the court issued in its past term. It basically changed maybe a hundred years of precedent and said corporate corporations can give unlimited funds.
And in elections, most people think that that precedent matters and you can’t change preexisting law, etc.. But the real, I think, unknown and one of the mysterious features of the Supreme Court is that politics and philosophy matter very much, and especially this court has been very aggressive in making changes.
Well, how do they get away with that? I mean, the law is the law. It’s not so black and white.
Not at all. The Supreme Court tells you their interpretation of the law. And so many average citizens feel that, just as you’ve said, the law is black and white. It’s what it says it is. And the court just has to interpret it. But most cases that get up to the U.S. Supreme Court are there because of ambiguities in the law or uncertainty. And what Congress is intent was or action by the executive branch. And the Supreme Court has tremendous discretion to interpret it. You’ll often see sweeping changes in precedent depending on the composition and philosophy of the court.
Well, let’s talk about that a little bit. And, you know, you talk about the composition and philosophy of the court. Could you give us some examples of this alignment? Almost feel like we’re talking like a chiropractor here, for example, aligning and realigning and trying to figure out how it aligns with perhaps business interests? Let’s talk about the philosophy of the court and how that can change and why it should even make a difference.
Well, let me give you an example. Right now, there are five. If a faction on the court that is contains five conservative judges and four liberal judges. And in just the past year, Chief Judge Roberts, Chief Justice Roberts, who has been on the court about five years, really asserted himself in terms of leadership. And so, for the past term, it was clearly his court. He chose or helped select the cases that would be before the court, and he was in the majority 92% of the time.
Wow. That’s a lot.
Yeah, that record used to be held not quite that high, but Justice Kennedy in past years has been the swing vote and most of the decisions have pivoted around his willingness to vote one way or the other with a with the four or five split. But now I would say it’s the Roberts Court or the Chief Justice Roberts – Justice Kennedy Court.
What does that mean for the decision or the cases that come in front of them and the decisions that get made?
Well, for example, the Citizens United case that I mentioned, which was the centerpiece of the past term, I would say that was a 5-4 decision that was pretty predictable. That went right along the conservative versus liberals. The Skilling case was a little bit different. Justice Chief Justice Roberts actually swung over and voted with the liberals on that case and found that the state honest services law was too vague and too broad.
The feeling was that . . . .
He was with Enron, right?
That’s right.
Yeah.
And that there will now be a whole new set of legal proceedings involving Skilling, because the law under which he was convicted has been set aside by the Supreme Court. It’s too vague.
And he’s doing a happy dance.
He is. He’s not out of the woods yet. But that was certainly a positive ruling for him and many other rulings. You’ve heard, I think everyone has heard of Miranda and the Miranda warning.
If they haven’t, they’re not watching enough TV.
And well, the court has been narrowing the Miranda warning and rules. The conservative faction has been very aggressive in narrowing those rights. And so now a criminal defendant has to ask for a lawyer, has to affirmatively assert his wishes to have his or her Miranda rights protected in order to receive that protection. So that’s a big change.
Yeah, because they need to know about that. So, we need to have smarter crooks. I don’t know. That’s you know, that’s interesting that there can be this kind of shift or this, you know, gradual change. It kind of runs counter to the assumption a lot of folks have that the law immutable and it’s really not.
It’s really true. I think the only two justices now that really are fixed to either originalism or textualism, which means a verbatim interpretation of the text and interpretation of what was the original intent of the framers of the Constitution are probably Scalia and Thomas. I think even the other conservative judges are, which would include the Chief Justice Roberts, Justice Kennedy, Justice Alito are all much more pragmatic now.
So, if I’m hearing between the lines here, depending on the nature of the issue, you seek to appeal. You really have to have a bit of a handle on what the philosophies are of the individual justices in evaluating whether it’s going to be worth your while or whether you’re going to get shot down.
It’s critically important, I think, that the starting point for anyone mounting a presentation before the U.S. Supreme Court needs to have counsel that is fully familiar and advised on the philosophical position and voting position of each member of the Supreme Court. It’s critically important in framing whatever legal argument and policy argument you wish to make to that court.
Let’s talk a few minutes about how you get a case to the Supreme Court. It’s not like you just wake up one morning and say, you know. I take it to the Supremes? You know, there’s a process here. So, fill us in a little bit about the main ways. I know that there could be lots of little nooks and crannies that can get to the Supreme Court. But you know what? I maybe two ways. Three ways. The most common ways that a case would get there.
There are a number of ways that a case can get up to the court, but the court is very selective about which cases it will hear. The two principal ways to get up there are by writ of certiorari, which is fully within the discretion of the court and by an appeal subject to a statute of Congress that allows the court to have jurisdiction over direct appeal. And that is less – that is not discretionary generally, although there are three branches of government and the Supreme Court is an independent judiciary, Congress prescribes the jurisdictional limits and boundaries of the court. So, for example, voting rights cases can have a direct appeal or disputes among the states, the Supreme Court would have original jurisdiction in most cases.
Now, if I have a case that I’m not happy with in the lower court, what factors should I be looking at as a businessperson in deciding whether or not to spend the money to take it to Washington?
Well, to go up to the highest court of the land, it’s either got to come from the highest state court, so a state supreme court, or it can come from a federal district court in certain circumstances or a federal appellate court.
But one of the things that is not very well known but is really critical is if your case involves the United States government, which were the executive branch, which really would relate to most of the cases being brought before the Supreme Court, your first stop should really be at the solicitor general’s office because the court gives tremendous respect to the opinion and research of the solicitor’s office.
The solicitor is the chief advocate for the executive branch, the United States federal government before the Supreme Court. A lot of people think the solicitors role is so important that they call the solicitor the 10th justice. To give you an example. The Court very frequently, in fact, increasingly in recent years, asks the Solicitor General in a number of cases what his or her opinion is on whether a case should be certiorari, should be granted or denied, or whether it should be received and remanded and vacated.
Approximately 80% of the time the solicitor’s recommendation is accepted by the court. So, it is really important for a corporate client, for example, with a major issue that is headed toward the Supreme Court, that might involve a federal agency’s regulations, for example, of that of that corporation. Very important to go see the solicitor general and try to convince the solicitor general either to take your cause up to the Supreme Court if it would be positive or not, to recommend that your case be presented before the Supreme Court if you’re adverse to the to say, a government agency rulings.
And how would somebody go about getting the solicitor general’s attention?
You make a formal request for a hearing and for a meeting. I’ve done that. Actually, the solicitor will nearly always agree to meet with you. The meetings used to be pretty informal and pretty small. They’ve gotten to be much more of an extravaganza in recent years. You can have quite a few people in the room and you basically argue the merits of your case before the solicitor. You don’t go in to lobby the solicitor or to speak in generalities. You really have to have a very carefully composed legal argument and a rigorous explanation of why your position should be should be sustained.
So, it’s like a dress rehearsal then?
It is. And it’s interesting. Some solicitors will listen carefully and may it may very much impact their decision. Other solicitors will use that discussion as an opportunity to have a better idea of what your legal arguments might be up at the Supreme Court. But given the 80% acceptance rate, it’s a stop that you have to make, even though there are. Risks.
Very interesting. I like these little tidbits here. Very, very valuable advice for anybody who is seriously interested in pursuing a Supreme Court appeal. So, this this kind of falls into the category of something that you definitely do want to do. Let’s talk about some more do’s.
I think the U.S. Supreme Court is completely different than any other type of advocacy I’ve done. And the rules are different. The it definitely is the Super Bowl of oral argument. And so, you want to make sure that you have engaged counsel that fully understands the Supreme Court practice rules and understands how to present issues that are likely to attract the court’s attention or likely to convince the court not to take the case.
If that’s the goal, you want to be using a law firm or team of lawyers that have not only had advocacy experience, but it’s also helpful if somebody on the team has actually worked at the solicitor’s office or has worked at the very least, maybe clerked for a Supreme Court justice or has serious appellate experience, because it is it’s completely different ground rules. And if you go up to the U.S. Supreme Court using the same techniques that you would for traditional appeal to a U.S. Court of appeals, you’re going to find yourself in real trouble.
How are they different? What is so fundamentally different that could trip people up?
Well, the rules of jurisdiction are completely different. The types of cases that the court is interested in, the procedures for filing a petition of for certiorari or a notice of appeal are completely unique and different. There’s a great book on U.S. Supreme Court practice, and that’s the name of it. It’s Supreme Court Practice. It’s really the Bible for how to prepare cases before the U.S. Supreme Court. And the authors, the first two authors are Gressman and Shapiro.
Shapiro was actually my mentor in my first argument up before the Supreme Court. Great guy, former deputy solicitor general. That’s a book that anyone that has a case heading to the Supreme Court or anyone considering bringing a case to the U.S. Supreme Court would want to consider. It’s really great book.
I have to remember that Stern and Gressman.
And it’s Supreme Court Practice.
So, when you had this when you actually you had one of the authors, you had Mr. Shapiro.
Steven Shapiro.
Shapiro helping you out, what types of things would he coach a counsel on?
Well, we had a lot of fun, but we also spent some really serious time together. I mean, he explained everything from how to conduct yourself before the podium. For example, the Supreme Court advocates that are experienced will walk up to the podium and there’s a little old hand-crank on the side of the podium to raise or lower it. And most experience advocates will just crank it up or down just to show that they know their way around that podium and the microphone.
Chief Justice Rehnquist used to hate it when an advocate would touch the microphone. It was very carefully set up. I actually saw him yell and rebuke a yell at and rebuke an advocate who tried to adjust the microphone to his height. So, there were tiny things like that.
But most importantly, Steve Shapiro helped me know what the philosophy of each justice was with reference to the issues I was raising before the court. And he helped me understand how the court often uses an advocate as a vessel to really where one justice will argue to other justices on the court to try to get their approval on certain issues.
No kidding.
Yes. Oh, yes. So frequently an advocate will be, you know, will be used by one justice or a faction of justices to try to influence the other justices or to try to extract policy concessions or factual concessions.
It’s in the way they phrase the question?
Yes. And I remember Sandra Day O’Connor’s hypothetical questions were famous. Her clerks used to help her prepare very complex hypotheticals. When I argued in the case where Steven Shapiro had. To me. They first put me through something called the Academy of State and Local Governments, which had been formed in response to former Chief Justice Berger’s complaint that state attorneys general were not and deputy attorneys general were not bringing a level of excellence to advocacy before the court that he wished to see.
So, they formed this academy. I went through it that gave really rigorous, moot courts and had panels of judges for the moot court who were former Supreme Court clerks, who was done under the auspices of Georgetown University Law Center, which now actually has a Supreme Court institute. That’s very excellent. They put me through all of that training.
And then Steven Schapiro wanted to make sure that I knew what the philosophical positions of the court were in each instance. The court then was also under Chief Justice Rehnquist, was much more of a state’s rights court. I think the court under Chief Justice Roberts is less interested in federalism now, less deferential to the states than might have been the case before the prior court.
Now, when you are at the podium and the times that you’ve argued before the Supreme Court and you’ve cranked it up and down and you don’t like you don’t tap it and go testing, testing, that would probably make them jump out of their chairs or something.
So I did see a I did see one advocate severely admonished because he began to speak in very stentorian tones. His voice was so loud that Chief Justice Rehnquist almost came out of his seat and said, quiet down, you know, we can hear you. Don’t shout.
Now you’re standing in front of this huge, impressive panel, this intimidating panel. Were there any surprises when you were up there?
At the time, I argued with in the case we just mentioned, that was more than 20. That was about 20 years ago or more. At that time, I was surprised at how old the justices were. And there were. Sandra Day O’Connor was the only female justice. Those two things surprised me. It didn’t – it struck me that it at that time, the court did not seem to represent the, you know, the cross-section of America. And I think now there’s been huge improvement in that area. I think the diversity of the court has improved, and I think the justices are much younger. And with it, I think that’s a that’s a positive development.
Well, that’s certainly good to know. I couldn’t agree more with you about the diversity. Things have changed. America has changed in the court needs to change with it. So those are definitely truly so. Very much so. Let’s explore some more about the do’s and don’ts about appealing a case to the U.S. Supreme Court. What are some other things to avoid?
Well, one thing that you don’t want to do is if you’re dealing with an issue that is confined to one member of the industry and it’s adverse, you don’t want to take it up and have the Supreme Court apply a bad ruling to the entire industry or stretch a bad decision and make it a more blanket ruling.
I think that, you know, in the case of criminal defendants, for example, now, I think it would be unwise for people concerned about expanding criminal defendants rights or expanding gun control. I think this is the wrong moment to bring those kind of cases to the court. I don’t know what will happen with respect to financial regulation and health care reform, which are probably two of the most recent pieces of legislation that no doubt will find their way up to the U.S. Supreme Court in some litigation context.
But people bringing broad, industry wide issues have to be very, very careful what cases they want to present, what the fact pattern is. We’ll make sure it’s a favorable fact pattern and one where the equities lie with the with the proponents of the position being presented to the court.
Now, what would make a fact pattern more favorable than another? Can you give us any examples?
Well, let me think. I would have chosen a different criminal defendant than Jeffrey Skilling. I think in the Skilling case, I think as a practical matter, the court decided that the statute was overbroad. Fraud was vague and overbroad. But I think I would have tried to present a potentially more attractive or less controversial defendant to the court in that case.
On states’ rights cases, I think that you wouldn’t want to have a fact pattern where the policy on your issue might affect a totally different issue of concern for the court. For example, in some of the federal abstention cases where the court was concerned about having the ability to go into states to protect civil rights. You wouldn’t want to be arguing, in fact pattern that federal courts should abstain if it looked like it would impact a civil rights case.
So you really need to take a very, very close look at the case that you have and look at the greater good. Mike, what do they say, that tough cases make bad law?
Yes, truly so. And I think when you’re dealing with the Supreme Court, you need a team because there are very few single practitioners that just have a really, really broad enough understanding of the views of all of the members of the court and the facts of the case and the record of the case, which, by the way, is one other interesting point. In in selecting an advocate before the U.S. Supreme Court to advance your position, I think it’s more important to have an advocate that fully and completely understands the record of the case.
I think that’s the single most important aspect of preparation for advocacy, and it’s actually more important, I think, to have somebody that fully understands the record than someone that has argued a large number of times before the court.
As a business, you have counsel that has taken a case to trial. You’re not happy with the result. You think the court reached the wrong result, You appeal it, you appeal it several levels, whether it’s through the state system or the Circuit Court of Appeals or the federal system. And next stop, U.S. Supreme Court. And the counsel that you’ve had from the trial level on is the most familiar. But maybe they’ve never argued a case before the Supreme Court. The best thing to do under those circumstances.
Then you would probably form a team where you would try to find someone with experience before the Supreme Court and have the members of the team bring that person fully up to speed on the record. But if you didn’t have the time or the resources to do that, I think you’re better off taking the person that knows the record and having some Supreme Court advocates train that person for the for the Supreme Court argument.
Yeah, because they will definitely know the ins and outs and the nooks and crannies of facts. In that case, they’ve been living it and breathing it probably for several years at that point.
The case that Steven Shapiro helped me with, I was arguing against a former solicitor general who had argued about 65 cases up there, Rex Lee, great guy, great advocate, but he did not know the record as well as I did. And so, Steven Shapiro felt that was a huge advantage for me. I think the media reviewing the argument felt it was an advantage also, even though Rex Lee was a superb Supreme Court advocate.
So, it takes more than just advocacy skills.
Yes, you have to know the record cold. And by the time a case gets to the Supreme Court, the record can be very extensive.
Absolutely, it can be enormous. And especially these days with electronic discovery getting into every little nook and cranny of somebody’s email and God knows what other unstructured electronic documents we are creating these days that before were just done anonymously. Now you’ve got electronic trail.
That’s right. And by the way, there are no there’s no place to hide when you finally get your case up to the Supreme Court. I mean, you your case has been fully briefed. There are nine justices. They each read the briefs carefully. They have three law clerks each. Generally, your opponents at that level are highly talented. So, there are no finesses or hiding of key facts or information. at the U.S. Supreme Court.
At least 36 lawyers have combed through it with a fine-tooth comb, right?
Yes. And then if there are interested parties that may not interested constituencies that may not even be parties in the case, they might file an amicus brief as well.
So, yeah, the Friends of the court, let’s talk about them. How do you get friends? Is it like Facebook?
I think most of the cases that are brought before the U.S. Supreme Court have significant enough importance because there are really very few now in each term. Your friends find you. Anyone studying the issues before the court that has an interest in it, they will find you. And of course, by the time you get to the Supreme Court, you probably have a pretty good idea of organizations that might be supportive and you can have a conversation with them.
Yes, I understand that happens. I understand also that can also be very political in terms of some organization that may or may not. Even though they like the issue, they may not like who’s bringing the issue. And so, they pick and choose. So, there’s just no end to the little political dimensions to all of this and trying to get the what you think is the proper decision and have it heard and reach the right result, which is why it’s playing at this level is I think it’s more than the Super Bowl.
I mean, it is huge prime time without a doubt. I mean, it’s like the Super Bowl in the World Cup all rolled into one. Any single misstep can just blow years and years of work and vested interest in a favorable resolution for your business, which is why I think strategically it’s important to keep all these factors in mind.
Actually, I’d like to explore that a little bit more with you. If you’re talking to a CEO or general counsel of a firm or maybe the president of a smaller company who doesn’t have an in-house counsel but has a very, very serious matter and one that they have the resources to pursue perhaps to the Supreme Court level, what types of factors should they consider? Because, I mean, everything is a risk and it’s a calculated risk, and we want to make smart decisions. What kinds of things should they put into their calculus in deciding whether to go for it?
I think that the most important thing to consider is just how severe, assuming you’re going up to the Supreme Court and you’re taking the case up, you know, how severe was the loss that you encountered? How severe is it toward your ability to continue in business and so on? If you’re defending, you have less discretion. Someone else might be bringing an appeal of a case that you have won or seeking certiorari on a case that you have one. And then you’ve got to make a decision as to how important that case is to you.
In most cases, it’s going up to the Supreme Court. It’s quite important. I think generally it’s not a very close call as to as to whether you need to really put resources into the case. Why do you say that? Usually by the time it’s gone to the Supreme Court, it’s got such broad importance. It’s going to have consequences not just for your individual company or individual person, but maybe a whole segment of the industry. If it’s corporate or a whole class of defendants, if it’s criminal.
So that momentum and the fact of the ethics and the justice behind it will carry it across the finish line of the decision to go ahead.
Yeah, I think most people that are well, certainly if you’re defending a case, I’ve never had a client that’s had a case of mine where another party is seeking to go up to the Supreme Court on cert, that that hasn’t been extremely interested in that case. And most clients that have not had a favorable outcome, if it’s a substantial economic importance or major principle of concern to them, they will seek to get up to the court. And again, that’s where the trip to the solicitor general, if it’s a case involving the government agency or the federal government, can be so important.
And if it’s not involving the federal government or an agency?
I think then it’s probably got less likelihood of coming before the court. Candidly, it would have to be an interest of an issue of keen interest to the court.
So we’ve touched on some do’s and don’ts. And overall, if you stand back, then do the 10,000-foot view, what do you think the biggest mistakes are that businesses make when dealing with an appeal and then with a Supreme Court appeal?
I think the mistake that businesses make are to not acknowledge the clear language of a statute or not acknowledge when facts are adverse to them or equities or adverse to them, that sometimes there’s a time when it’s better to just take your licks and move on. You can make it worse.
I mean, how bad could it get when you already have a decision you don’t like?
It’s so hard to generalize, but you can have much broader application of the case that you might have effect fact that involves one company or one issue and it can become applied to across the board for your industry or all of the companies or facilities you might be operating. You have to be really, really selective as to what you want to take up on appeal and then all the way up to the U.S. Supreme Court.
What other things should we know about the Supreme Court?
Well, I think you’re about to have some — I mean, we’ve had some very lively hearings, in a sense, with Solicitor General Kagan. I think the conventional wisdom is that in most of our senior strategists in both parties feel that that she will be confirmed and sail through. That will in and of itself create a new alignment on the court. So, there’ll be a degree of unpredictability. She’ll be, in all likelihood confirmed and will replace Justice Stevens.
But even though it’s perceived that she will probably have a more liberal stance than the conservative wing of the court right now, it’s a huge loss, for example, that Justice Stevens is stepping down. He was on the court, I think, for the second longest tenure of any justice. I think he was on for more than 35 years and on the Supreme Court, seniority matters. So, for example, if a chief justice is not in the majority on a case, the person that assigns the opinion is the next most senior justice, which in many cases, you know, would be Justice Stevens. Now, you would have Elena Kagan coming on board as a junior justice.
And why would assigning the opinion make a difference? How is that?
Well, it would it depends on who would then write the opinion, which is very, very important. And also, the justices speak in order of seniority in the conferences. So, the chief justice goes, justice goes first, and then Justice Stevens would go second. And it is said that sometimes in those conferences, by the time you get to the judge with the least seniority, the decision is already pretty well made up. It’s clear how the how the decision is going to go. And so that person’s comments may not be as important or relevant.
Isn’t that interesting? So even that gets a bit politicized. That sounds like what happens in some corporate boardrooms, too. You know, what do you think now? What do you think? Of course, you know, they’re more polite about it. And it sounds like there’s a clear pecking order here in terms of seniority. So that that’s something a lot of us didn’t know.
Yes. There’s also there’s differences of opinion as to just how important those conferences are, how much the justices listen to each other. Famously, Justice Thurgood Marshall was once excluded from a conference because he had to go to a funeral and he had contacted Chief Justice Berger and communicated that he had to go to a funeral. And the chief justice went ahead and had the conference anyway.
And it became there’s a famous memo that Justice Marshall wrote to the chief justice that came out, I think only recently and indirectly, I think it was found in maybe in Justice Stewart’s memoirs. But that happened only once. I think after that, the chief justice made sure everybody was there for the conference.
What was in this memo? Do you remember what it said?
Yes. As it’s reported, Thurgood Marshall basically said it’s essential for all of the justices to be present so they can present their views to one another. And when a justice cannot be present and is informed the chief justice, the meeting should be postponed. And he felt so strongly about it that he stated he would not vote with respect to any of the cases that were discussed in the conference and the chief Justice ended up rescheduling and they really discussed each of the cases.
That’s interesting because if he decided to abstain, then it’s potential. There could have been a deadlock. Yes. What other good little tidbits here do we have about the Supreme Court? These stories are good.
Well, I think it is a wonderful bar. And it’s this is a really exciting court. I think the tremendous intellectual firepower and a lot of, you know, very strong differences between the conservative and liberal faction divided only by five, four votes. But at the same time, those votes, while they can be critically important on a case like Citizens United, I think more than 50% of the time the court votes unanimously are 8 to 1. So, they’re not divided on every single point.
But do you think they’re going to be more divided on business issues?
I think you’re going to see more business issues coming before the court. Because that’s of more interest to the chief justice. I think that’s part of his imprimatur. He brought several business issues before the court in the last term. You’ll notice in the last term there were no abortion cases and no prisoners at Guantanamo cases.
I think there was only one national security case, which was an unusual national security case, because it really had to do with people trying to provide humanitarian what they were arguing was humanitarian aid or advice to an organization that had been listed as a terrorist organization.
So, I think you’re going to see more business and commercial decisions coming before the court. It’ll be interesting to see if Solicitor General Kagan becomes a justice, how her role develops on the court and how the alignments change in the future.
Definitely is something to keep an eye on and something that’s going to be near and dear to business decisions and how they impact Main Street. We’re all going to be paying close attention to that. And now that we have a little bit more insight and a peek behind those black robes, I always wonder what they have underneath there, you know, maybe why it’s so mysterious. Everybody’s afraid to ask, to touch the mic. Oh, my gosh. But, you know, the Supreme Court certainly is no laughing matter. It’s something to take seriously.
I was wondering, as we’re getting close to the top of the hour, whether you have any closing comments, thoughts that you’d like to share with us.
Well, my hope is that in the future, I’d like to see the body politic become a little more centrist. And I’d like to see some of the selections for the court become centrist. And I hope that the selections, as they occur in the future, continue to really emphasize diversity, cultural diversity and racial diversity and gender diversity. And also, I like this fact that there is a youthfulness to the court.
I think it’s a shame that the confirmation hearings have become so politicized that the persons seeking to be confirmed for a Supreme Court position really have to do almost a kabuki dance where they really can’t reveal their personal philosophies, etc.. They’re ultra-careful. I think it’s unfortunate, the extreme that that occurs now. And it’s if you notice all almost all of the recent justices that have been confirmed have had to do the same thing. I think that’s a shame.
So, I hope we continue to move in the direction of having a more pragmatic court, more diversified court, younger and one where the respect, even across philosophical lines is is adhered to.
Well, hopefully they’ll get some good fact patterns to work with and they’ll be able to play nice and we’ll have some good law come out of it. That’s the best we can hope for here. But Clint, I want to thank you so much for some of these eye-opening insights and the practical knowledge that you’ve shared with us here.
It gives us all a new perspective on how businesses can perhaps strategically analyze the appellate process to see how it aligns with their business objectives. You know, for example, take your losses and run or, you know, fight on depending on situation. And it gives us, I think, a new appreciation for the role of Supreme Court and the third branch of government, which we sometimes take for granted but is one of the greatest strengths of our democracy. That wraps up another edition of Aspen. No Nonsense Lawyer.
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I hope you’ve enjoyed this bonus episode from the No Nonsense Legal Literacy Archive.
If you’re listening and would like more information about Clint Vince and his amazing work at Dentons, that link along with a transcript of this episode can be found in the show notes at BusinessConfidentialRadio.com
AND If you know someone who could benefit from a better understanding what’s involved with appealing a lawsuit to the US Supreme Court or who wants a peek behind the curtain, please tell them about this bonus episode, share the link and leave a positive review so others can learn about it too.
We’ll be back on Thursday with our regularly scheduled weekly episode of Business Confidential Now.
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