@briandowning
Assistant professor of law at @olemiss.bsky.social . Using this to rate SCOTUS oral args. Rating guide: https://briandowning.medium.com/notes-on-rating-supreme-court-oral-advocacy-0859f8952930. Former Google lawyer/eng.
By the time Kagan said “you’d better get to your backups,” it received a big laugh from the crowd. Maybe Clement or Blatt can survive that kind of laugh, but mere human advocates aren’t feeling great when their main argument is going so poorly that it gets laughs in the end.
eg m48 Roberts: “when you say it’s your front line position over and over, that makes me think you’re willing to retreat.” Jacoby wasn’t bending on monkeys pulling prison time out of a hat was even not appealable. She lost a couple of votes on that alone.
Jacoby - strategy was odd from a few angles. Blatt had just hammered extreme hypos and how if we’re going to apply contract theories, it’s gotta go both ways. And then it seemed like Jacoby got up and gave her pre-written opening, rather than adapting to the full Blatt. Bad move.
m42 Jackson: ”I know you don’t think you’re going to get any votes for this, but my job is to vet all the issues” - I’m not sure Jackson’s colleagues love that she sees that as her job. And I don’t think she cares.
m24 Sotomayor: “You keep correcting me.” “No it’s wonderful what you’re saying, keep going.” m27 my job would be easier too if you were medicated, but that’s not how it works. m28 Alito mad about lack of time to rebut Sotomayor.
Blatt - She was in full form. m14 imagine all judges on antidepressants. m21 Kavanaugh: “these are not hostile questions” “I I just want to get Justice Alito’s vote.” “Alito: Very few advocates share that goal.”
Hunter v US
Crim: Appeal waivers
Blatt (P) - Clarity (Blatt), Mastery (Blatt), Adaptivity (Blatt), Interplay (Blatt)
Jacoby (SG R) - Clarity (2), Mastery (4), Adaptivity (1), Interplay (2)
youtu.be/6_dQ9YxY2a8?...
US v Hemani
2d Am - Drug use
Harris (SG P) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (3)
Murphy (R) - Clarity (4), Mastery (4), Adaptivity (4), Interplay (4)
m81 Barrett doesn't know what ayahuasca is? Not even from TV or other cases?
youtu.be/JCVSCxQckrU?...
m26 Alito gives his views on the Facebook Marketplace value of Pelotons, as he does every argument. m56 Gorsuch, defending the little guy in a takings case: if you invoke Cooley (treatise), you gotta eat your Cooley.
Pung v Isabella County
Con Law: Takings
Ellison (P) - Clarity (3), Mastery (2), Adaptivity (2), Interplay (2)
Liu (SG) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (1)
Nelson (R) - Clarity (3), Mastery (3), Adaptivity (1), Interplay (1)
www.youtube.com/watch?v=Ea3v...
Sherman - m35 halting response to predictable q by Alito, and a lot of umms in general. Like Perrtu last term, when facing an agile opponent, the contrast in style is unfavorable. But her substantive arguments are strong. The oral advocacy just isn’t enhancing her case.
I’m not sure Bursch will win, but if he loses, he made losing as fun as possible. Gave his side a real shot.
m16 vacate and remand to 6th Cir, & you can write 160 less pages than tariffs. Alito: Sotomayor and I felt left out of those pages, we didn’t write any. m20 Roberts moves to Sherman too early, Bursch: “I’m glad the chief used equity to have me answer the q, like this case.” Ha!
Bursch - Masterclass. Last time out in Medina, Bursch had a winning case & held serve. It was a mild arg. But he needs to go on offense here & struts his stuff. Funny, ready for every question with clear points, & a delight to listen to. Clement-like arg, so he shouts him out m26
Enbridge Energy v Nessel
Civ Pro: Removal
Bursch (P) - Clarity (5), Mastery (5), Adaptivity (2), Interplay (5)
Sherman (St SG R) - Clarity (2), Mastery (2), Adaptivity (1), Interplay (1)
www.youtube.com/watch?v=lhB_...
Lobel - Always interesting to rep the interests of the Cuban government. By m82, Jackson & Alito are arguing with each other and not asking Lobel questions. Alito represents the contingent who want to give US lots of power to pressure Cuba, with some echoes of the tarriff lineup.
Cuba day, case 2.
Ratner - aggressive argument. Took Sotomayor’s energy and gave it right back.
Gannon - in contrast, SG was even-tempered while enhancing Ratner’s points. It made a good combo, and was one of Gannon’s better args.
Exxon v Cimex
Civ Pro: Foreign immunity
Ratner (P) - Clarity (3), Mastery (3), Adaptivity (1), Interplay (1)
Gannon (SG P) - Clarity (4), Mastery (3), Adaptivity (3), Interplay (3)
Lobel (R) - Clarity (2), Mastery (3), Adaptivity (1), Interplay (2)
youtu.be/ZjQDGUksUm0?...
Clement - he’s doing all the args this term at this point. He’s the perma-Respondent. And yet, like Cox, he might actually lose this one? If they don’t buy his chain of logic about property definitions, he’s not in a great spot to enhance his win record.
Klinger - quiet and slow start. Barrett even asked him to speak up. He’s a soft-spoken advocate but gained some force as he went.
Brown - usual solid argument from Brown, and kept the Ps in good shape for the inevitable heavy attack from Clement.
Havana Docks v Royal Caribbean
Property: Helms-Burton
Klinger P-Clarity (2), Mastery (3), Adaptivity (3), Interplay (1)
Brown SG-Clarity (4), Mastery (3), Adaptivity (4), Interplay (3)
Clement R-Clarity (4), Mastery (4), Adaptivity (4), Interplay (4)
youtu.be/5vQvo6aB9sc?...
m108 heads I win, tails you lose answer to Justice Alito…this whole case is irregular, rule for me however you can…he’s just so at ease and entertaining throughout.
Clement - m61 we get “Full Taft”; we got the Full Clement. His opening alone = win. m67 Alito your primary arg means we keep a KKK member or Hitler supporter? Clement: I have backup arg, but yes, they’d be impeached…Gorsuch what’s your backup…what‘s your backup to the backup?
Sauer - It’s his usual deal: bad facts, get what he can. He’s quite good in those situations, making him the perfect SG for Trump. It’s hard not to chuckle those as he tries to sell the severity of mislabeling a vacation house.
Trump v Cook
Admin: Removal
Sauer (SG A) Clarity (3), Mastery (4), Adaptivity (4), Interplay (4)
Clement (R) Clarity (5), Mastery (5), Adaptivity (5), Interplay (5)
4 arguments for Clement in the last 2 months!
youtu.be/flzz-UOQWxU?...
All of these advocates know ERISA really, really well.
m30 Roberts: “John Roberts, no relation.” “None at all.”
M&K v Trustees of IAM
ERISA: Calc Date
Kenneally (P) - Clarity (3), Mastery (4), Adaptivity (3), Interplay (1)
Roberts (R) - Clarity (4), Mastery (4), Adaptivity (2), Interplay (1)
Barber (SG R) - Clarity (4), Mastery (4), Adaptivity (1), Interplay (1)
www.youtube.com/watch?v=vYGJ...
m80 excellent handling of Alito’s anger that 2nd amendment being treated as 2nd-class right. m82 “I wouldn’t go that far, but you certainly could, Justice Gorsuch.” “I appreciate your candor.” m85 Gorsuch “black codes like garlic to a vampire normally”
m77 Barrett “I don’t understand why you’re resisting…ok I do understand, but why would it fail rational basis?” - caught herself pulling a Justice Jackson, who often says “I don’t understand” or “I’m confused” when a party takes a position she doesn’t agree with.
Katyal - takes a losing case and does what he can. Lots of pro moves here to try and find common ground, though it’s not going to work.