The Pepperdine Event With Justice Alito and Carter Phillips

Based on the comments, it seems that there is quite a bit of interest in the event that was hosted by Pepperdine Law School featuring Justice Sam Alito and Carter Phillips. Here is a link to the streaming video of the event, see here, and posted after the jump is a summary written by Professor Doug Kmiec, who was a participant in the exchange.

Justice Alito gave an extraordinary tutorial on the nature of written and oral advocacy before the Supreme Court as well as a candid appraisal of something rarely discussed by a sitting member of the Supreme Court – the Court’s internal deliberations.

Alito flatly stated that it was not the Court’s purpose to take fewer cases and he did not think the quality of petitions filed accounted for the decline. Like others, the Justice speculated that there is simply less division among lower courts and less congressional activity giving rise to the need for interpretative effort. Justice Alito opined that there is no “right” amount of cases, other than the Court fulfilling its duty under Rule 10 to take cases of great importance and to resolve genuine circuit splits. In response to questions from Professor Kmiec, Alito noted that some lawyers do manufacture “conflicts” that on a close reading of cases do not exist.

Carter Phillips of Sidley Austin was the primary discussant with Alito, with both Kmiec and Dean Starr keeping the program orderly and in focus. Phillips revealed his mastery of Court strategy and regaled the audience with observations based on this substantial experience, though using a quotation of John W. Davis, he posited that when the fish is present and can talk who really wants to hear anything from the fisherman.

Alito posited that oral argument for him is a straightforward request for assistance from counsel with respect to weak aspects of a case. He revealed that Justices do not by and large identify for each other these weaknesses in advance. Nor, he said, is oral argument a conversation among Justices through the advocate. That would be a most inefficient method of conveying ideas to one’s colleagues, said Alito. Phillips observed that at least with some Justices, the advocate is used as a communications device. Phillips speculated, and Alito did not disagree, that in upwards of 80% of the cases, one can deduce the outcome from the questioning.

As for internal deliberations, Justice Alito thought the process was reasonably aimed to accomplish its opinion writing tasks, though he conceded that on occasion, the views of the Justices change after conference as the opinion is written out. While acknowledging that outlining can be helpful in a complex case, he did not see its need as a general matter.

In terms of collegiality, Justice Alito saw the Court as healthy. Contrary to academic literature, he doubted that collegiality affected outcomes in any serious manner. The law determines outcomes, he said, not judicial friendships.

Throughout the lively 90 minutes, the conversation was free-flowing and the learning was punctuated with wit and the obvious good will among the participants.

All four — Alito, Phillips, Starr, and Kmiec – were in the Reagan administration while Bill Smith was AG, and the careers of Alito, Phillips and Kmiec in particular have often intersected: (Kmiec and Phillips are longtime friends from practice and clerking in Chicago and Washington DC; Phillips and Alito were hired together for the Solicitor General’s office; and Kmiec and Alito served together in the Office of Legal Counsel. The friendship and mutual respect among the participants infused the entire event with civility and good will.