Practicing Before the Supreme Court
The Bencher—July/August 2016
By Kannon K. Shanmugam, Esquire
It feels like it was just yesterday, but it was actually December 8, 2004. I was appearing before the Supreme Court of the United States for the first time, as a 32-year-old attorney in the Solicitor General’s office. I was petrified—in fact, I was probably too young to realize just how petrified I should have been. And my fear must have shown, because my supervisor leaned over shortly before I went up to the podium and said, “If you’re going to throw up, throw up on opposing counsel, not on me.”
Thankfully, I got through the argument without throwing up—on anyone. And although I never would have dreamed of it when I was in law school, appearing before the Supreme Court has since become an important part of my practice. I have had the privilege of arguing before the Supreme Court 18 times since that initial appearance. While the membership of the court has changed in the intervening years—only four of the justices who decided my first case are still serving—the experience of practicing before the court remains largely the same.
When I talk about my practice, I’m often asked two questions. The first is, “What attracted you to Supreme Court practice?” I usually say that I was attracted to the intellectual challenge of the types of cases that the Supreme Court hears—cases that present difficult questions of constitutional or statutory law, cases that almost by definition have caused judges on lower courts to reach different conclusions. When I was a kid, I enjoyed solving puzzles. Supreme Court litigation is the ultimate exercise in puzzle-solving.
In thinking about that question for this article, however, I’ve come to realize that my usual answer is incomplete. After all, virtually all litigation presents intellectual challenges of one type or another. Some of the most interesting cases I’ve handled over the course of my career were not before the Supreme Court, but before lower courts. Supreme Court cases typically have a higher profile, in part because there are so few of them. But it doesn’t follow from the fact that Supreme Court cases are more visible that they are necessarily more interesting.
So here’s a more complete answer to the question. What attracted me to Supreme Court practice was not just the intellectual challenge; it was a lot of the same things that attracted me to the American Inns of Court. As any reader of this magazine will know, the American Inns of Court are committed to upholding and promoting certain core values in the practice of law: above all, the values of civility, ethics, and professionalism.
The lawyers who regularly practice before the Supreme Court, and the justices who serve on it, are a living testament to those values—and, for that reason, practicing before the court is a particular pleasure. As to the lawyers, it is often said that Supreme Court practice is “genteel.” That is somewhat misleading: In my experience, lawyers practicing before the Supreme Court advocate their clients’ interests every bit as vigorously as they do in other courts.
At the same time, however, Supreme Court litigation is characterized by the almost complete absence of sharp practices found all too often elsewhere. For the most part, the tone of lawyers in briefs and at oral argument is civil. There is a deep commitment to professionalism and punctilious accuracy. Lawyers routinely agree to requests from opposing counsel on procedural issues such as extensions of time. Lawyers have even been known to share hard-to-find sources with opposing counsel when preparing their briefs.
That commitment to civility and professionalism extends to—or, perhaps more accurately, flows from—the Supreme Court itself. While oral argument at the court can be lively, to put it mildly, it rarely gets personal. Even when lawyers make mistakes, the justices do not go out of their way, as all too many judges nowadays seemingly do, to “benchslap” them in their opinions. And the highest court in the land has the nation’s best, and most helpful, clerk’s office. It is perhaps no coincidence that the American Inns of Court were founded by a chief justice, or that the justices continue to be so integrally involved in the Inn movement.
In short, practicing before the Supreme Court feels like what legal practice should be, with the justices and lawyers alike playing their appointed roles at the highest level. A couple of years ago, I was representing one side in a complex case involving the intersection of bankruptcy and tax law. As I was listening to my opposing counsel deliver her argument, I remember thinking that, regardless of the ultimate outcome, the legal process was at that moment operating exactly as it should, with the justices using the lawyers to help them to figure out the right answer to a really difficult legal question.
Earlier in this article, I said that I’m often asked two questions when I talk about my practice. The first is what attracted me to practicing before the Supreme Court. The second is, “Does practicing before the Supreme Court ever get old?” The answer to that question is much easier. No, it never gets old. It is certainly a more familiar, and less terrifying, experience now than it was when I was that petrified 32-year-old lawyer. But it remains every bit as exhilarating and challenging as it was for that first oral argument.
Perhaps more important, it is always a privilege to have the opportunity to appear before the Supreme Court—whatever the case and whoever the client. I used to think that was simply because it is an honor to appear before the highest court in the land, and that is certainly true. But as I get older, I have to come to realize that the honor is in playing a part, however small, in the development of the law—and in the promotion of the shared values that the Supreme Court, and the American Inns of Court, hold so dear.
Kannon K. Shanmugam, Esq., is a partner in the law firm of Williams & Connolly in Washington, DC, and head of the firm’s Supreme Court and appellate litigation practice. He is a member of the American Inns of Court Board of Trustees and the Edward Coke Appellate AIC.
© 2016 Kannon K. Shanmugam, Esq. This article was originally published in the July/August 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.