Source : The Legal Intelligencer
By : Mark Frost and Ryan Lockman
Category : Bail Bond Seminole County , Bail Bondsman in Sanford
Preparing and Arguing in the U.S. Supreme Court
In 2006, Jeffrey Heffernan—a detective in the Paterson (NJ) police department—was seen holding a mayoral campaign lawn sign while off duty and was immediately demoted on the government’s mistaken belief that Heffernan was supporting the challenger against the incumbent mayor. Heffernan filed suit against the city of Paterson for violating his First Amendment rights. Ten years, one trial, three district judges, three summary judgment motions, two dismissals, and two appeals later, Heffernan and his lawyers found themselves in the U.S. Supreme Court, in Heffernan v. City of Paterson, 14-1280. On April 26, we won. The issue before the court was unique: it is well-established that nonpolitical public employees cannot be retaliated against for supporting a political candidate. But what if a public employee is demoted because his supervisor mistakenly believes he supports a candidate? A circuit split emerged, with three circuits finding that the employee’s claim was actionable, while the U.S. Court of Appeals for the Third Circuit did not. After the Third Circuit rejected our claims, we were joined by Stuart Banner, who ran the UCLA Law School Supreme Court Clinic. We then filed a petition for certiorari to the U.S. Supreme Court. Roughly 2,000 cert petitions were considered in the 2015 “long conference,” nicknamed for the fact that the court considers in one conference all of the petitions filed during its three-month summer break. Thus, roughly a quarter of the year’s petitions are decided in one day. While the odds of having cert granted once the term starts are extremely low, the odds of being successful in the long conference are almost Powerball worthy: one former solicitor general once called it “where petitions go to die.” Of the 2,000 cases considered, the court granted cert on only 13 of them. That is roughly a 0.6 percent chance of being accepted by the high court. But on Oct. 1, 2015, our cert petition was granted. We were going to the Supreme Court.
After a few days of celebrating, it hit us—we have work to do! The clock starts immediately upon having cert granted. Within 10 days, the petitioner must forward to respondent a draft joint appendix. Within two weeks, we were also having a conference call with the U.S. Solicitor General’s office. The solicitor general—on behalf of the United States—can choose to join a side in cases in which it is not a party. The solicitor general’s office brings immense clout to the side it joins, and it also submits a brief and is provided time at oral argument. Having the solicitor general—who is unofficially considered to be “the 10th Justice”—also does wonders for one’s odds at the court; in the last term, the solicitor general participated in 41 cases as amicus curiae and won 71 percent of those cases. We ended up conferencing with members of the SG’s office, including current acting solicitor general Ian Gershengorn. This call was our first real sense of the questions the justices might ask at oral argument. Ominously, we did not hear back from the SG’s office after our call.
In October and November, organizations and law schools—including Georgetown University and the University of Virginia—reached out to us regarding potential amicus briefs, and we met with them about potential issues and arguments for them to explore. In mid-November, we submitted our opening brief. A week later, we received four amicus briefs in our favor, including—to our surprise—from the solicitor general. In December, the city of Paterson responded. By early January, we filed our reply. We then prepared for oral argument. The tried-and-true way of preparing for Supreme Court oral argument is through moot courts, where a panel of experienced lawyers and professors—many of whom have themselves argued before the court—pepper you with questions for roughly an hour and thereafter critique your answers. The goal is to get beat up enough over multiple moots until you begin to anticipate the questions. Mark, who would be the attorney arguing the case, argued at the moots. Ryan prepared potential questions and ideal answers from the moots for approximately 150 different questions that might be asked at oral argument. By the time all of the moots were completed, there were not many surprise questions. The trick—which proved to be easier said than done—is to state the answers immediately and succinctly. During this time, we also learned many of the unwritten rules of Supreme Court oral argument, like how to address each justice, how to respond if you are asked multiple questions at once, and when to ask for rebuttal time.
We also attended the moot court for Ginger Anders, assistant to the solicitor general, who would be arguing on behalf of the United States. Set in the bowels of the Justice Department, with intense levels of security (we needed an escort to go anywhere, including the restroom) this moot was one of the major highlights of our Supreme Court experience. We then discussed the case with panel members from the moot, who were attorneys in the SG’s office and elsewhere in the Justice Department. Finally, oral argument day came, Jan. 19. All of the justices (with the exception of typically silent Justice Clarence Thomas) were active in oral argument. Within seconds, questions were flying. We had anticipated that the “conservative” justices would be critical of our case based on their votes in prior cases involving political patronage, and their questions confirmed our suspicions. Justice Antonin Scalia—in what would end up being his penultimate oral argument day—was his typical self, asking pointed questions and joking simultaneously. Then, it was time for Ginger Anders to argue. She faced similar questioning. When the city’s counsel argued, Justices Elena Kagan and Stephen G. Breyer grilled him with hypotheticals, and soon all four “liberal” justices joined. Justice Anthony M. Kennedy, like usual, seemed to be the swing vote. After argument, we were reasonably confident that we had four in our favor, three against us, and two—Chief Justice John G. Roberts and Kennedy—on the fence.
Read more at: thelegalintelligencer.com/id=1202763531207/Preparing-and-Arguing-in-the-US-Supreme-Court?slreturn=20160629030217
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