The Supreme Court is not an institution known for its humor, and litigators joke at their own peril. The ordinary rule of edgy standup applies – if you’re going to tell it, it had damn well better be funny. History’s object lesson in this area would go to Jay Floyd, Assistant Attorney General for the State of Texas who argued before the Court in Roe v. Wade. Facing two female adversaries – and a bench of nine men – he perhaps felt a bit overconfident in opening with this chestnut:
“May it please the Court, it’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”
The oral transcript does not record any laughter. This was the beginning of a bad day for Mr. Floyd.
So, we take our Court jokes where we can get them. As a for instance, the Court publishes a small book called the “Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States.” This document – available on their website – instructs the attorney in everything from the banal (“Counsel and co-counsel may leave… coats, hats, and similar items in the Lawyers’ Lounge”) to the obvious (“If you are in doubt about the name of a Justice who is addressing you, it is better to use “Your Honor” rather than mistakenly address the Justice by another Justice’s name.”)
I find this little book amusing for reasons I have trouble articulating, but most attorneys I know who have read it find it amusing too. It really is about the little things. Take this one:
“The quill pens at counsel table are gifts to you—a souvenir of your having argued before the highest Court in the land. Take them with you. They are handcrafted and usable as writing quills.”
I’ve gotten close enough to having my case taken by the Court to fantasize about it, and the thing I find my mind always coming back to is those pens. I think I’d have to bring an extra attorney (there are 4 chairs at counsel table, which you’d know if you read the book) just to keep an eye on them. Do I put them in my briefcase right when I sit down, or only after the argument is finished? The former feels a little vulgar, like pocketing dinner rolls before the entrée has arrived, but I don’t think I’d be able to concentrate with those things sitting there. What if I finished my argument and forgot to grab them? I don’t think there’s any graceful way to walk back up to the table once the next argument has started.
Did Jay Floyd remember his pen? I wonder what he did with it? Probably not writing jokebooks.
Anyway, the Court is back in session and, less than a week in issued their first ruling. Madigan v. Levin #12-872 was argued just last week. The case involved a significant but somewhat esoteric question, in short, whether a particular federal law involving age discrimination prevented people from also claiming discrimination under a more general civil rights provision.
The majority of Supreme Court cases are like this one – questions of legal interpretation that are important but removed from most folks’ lives, questions that can’t easily or adequately be explained in a sentence or two. And the majority of these questions produce something like consensus on the court – a significant portion of the court’s workload is decided by a unanimous court or close to it (this subject is for another post).
Anyway, it was not a case that garnered significant attention to the average person who is not a court watcher, but it was – like most cases – important to the people potentially affected by it, which in this case meant every single state government and every person who might mount an age-discrimination claim. So, maybe 40 million people.
The Court – and this is ALSO the subject of a different post – has to pick and choose their cases carefully. They get asked to resolve between 8,000 and 9,000 claims every year. They are able to hear about a hundred and twenty. Do the math! They really, really want to hear the right cases at the right time.
And when they decide to hear a case – well, that is just the beginning of the work for the attorneys. The printing standards of the Court are specific and unique; the filings need to be printed and bound in an unusual size, and many copies need to be produced. The mere printing and binding of a given filing – not the cost of the research, not the cost of the investigation, just the cost of the binding – can be several thousand dollars.
In this case, briefs were filed by both sides, as they are, and also filed by other groups who had an interest in the subject matter of the litigation – so called amici, “friends” of the Court. In this case, amicus briefs were filed by the National School Boards Association, The State of Michigan joined by Twenty Other States, the AFL / CIO, the National Education Association, and the AARP, among others. I do not have a clever analogy to help visualize how much paper this was; legal briefs were filed by the nation’s largest union, the nation’s largest lobbying organization, and almost half of our States. So, let’s just go with ‘lots of trees.’
Finally, this past week, the Court heard the Oral Argument. The Solicitor General of the State of Illinois and his capable opponent descended on Washington, presumably with enough other attorneys to fill the rest of the chairs and guard the pens. It was not a remarkable argument – most commentators I follow thought that the Solicitor General had the better of it, but it wasn’t a landslide in any direction – and everyone sat back after the year of briefing, a few hundred thousand pages of paper, and the all the sleepless nights which attend important arguments, to get some well-deserved rest and await the Court’s ruling – in the ordinary course of things we’d expect it sometime between, say, December and next June.
On October 15 – a scant week after the oral argument – the Court issued its first Order of the term, a one sentence ruling:
“Madigan v. Levin #12-872. The writ of certiorari is dismissed as improvidently granted.”
Translation – “After thinking about it, we’ve decided we shouldn’t have taken this case in the first place.”
Well, this is my first post, and I can’t think of a better way to start than with that case. The Court pretty rarely DIG’s a case, and I don’t recall such a DIG being their opening Order for the few years I’ve been watching them. It’s as good a place to start a law blog as any.
I’ve had some tough losses, but nothing like that.
And it can surely be expensive to run a law office. But not as expensive as those pens.