SCOTUS spotlight: Tom Goldstein on ‘hitting singles’ as an oral advocate

Tom Goldstein, the publisher of SCOTUSblog and partner at Goldstein & Russell, P.C., has argued more than 40 cases before the Supreme Court since his first oral argument in 1999. On this week’s episode of SCOTUStalk, Amy Howe interviews Goldstein on what it’s like to advocate before the nine and how that experience has changed over the past 20 years. Goldstein offers a few tips for success along with audio-accompanied stories about taking heavy fire from a hot bench, joking with Chief Justice William Rehnquist and joining a case at the last minute.

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Full transcript below the jump:

[00:00:00] Oyez! Oyez! Oyez!

[00:00:03] Amy Howe: This is SCOTUStalk. A non-partisan podcast about the Supreme Court for lawyers and non-lawyers alike brought to you by SCOTUSblog.

[00:00:13] AH: Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us. We are continuing today our series on Supreme Court advocacy, and we are delighted to have with us the co-founder of SCOTUSblog, and my husband, Tom Goldstein, who will argue his 44th case at the Supreme Court in October. Tom, thanks for joining us.

Tom Goldstein: Thanks for having me.

AH: So, you have been arguing you argued your first case before the Supreme Court in 1999—

TG: Just a couple of years ago.

[00:00:44] AH: A couple of years ago.

[00:00:45] AH: How has your approach to oral argument changed over time?

[00:00:52] TG: Well it’s changed pretty radically. Putting aside arguing in the pandemic, I think that oral arguments now and in 1999 are pretty similar but my understanding of them has changed radically. When I first started out my goal really was to persuade every justice on every question in the case and I’ve come to understand that that’s completely impossible. And I have much more modest goals for oral argument, and I’m just, I think, much more attuned to what individual justices are concerned about and might you might accomplish at oral argument.

[00:01:25] AH: So, tell us a little bit about your first oral argument. I was there.

[00:01:29] TG: You were there. I was amazing. We got destroyed, I think is the way of thinking about it. It was a case in an opinion by Justice Thomas. It was a very tiny, little civil procedure case, and I had, you know, gotten ready on every conceivable question, and I really felt at the time that I was extraordinary. The justices disagreed apparently because we lost nine to nothing. But that’s one of those cases where I went in and I had all of these new ideas and other things that I thought about and sweeping things that all of the court could agree on and all that they could agree on was the fact that I lost.

[00:02:09] AH: It reminds me of the joke—and I don’t know whether—it’s the story. I don’t know whether it’s apocryphal or not but where John Roberts when he was in private practice called up a client to tell him that he had lost nine nothing. And John Roberts was asked why did we lose nine nothing? And the response was because there were only nine justices.

[00:02:30] TG: Yeah. The advantage that client had is that they had John Roberts at least.

AH: Walk us through your preparation in the weeks leading up to the oral argument. How many moot courts do you do? When do you do them? Do you practice your answers to certain questions?

[00:02:45] TG: Well it can depend a little bit on the case. It can depend a little bit on what else is happening. So, for example, I’ve argued twice in the same sitting before, and I honestly got very concerned that I was going to confuse the two cases. And so I did more meet courts for those than I usually do. It can depend a little bit on strange situations like the pandemic. And so we have a lot of new things that I’m trying out with respect to that, but ordinarily I’m doing three moot courts starting at about 10 days out. Now there are other things that can happen. For example, if we are the petitioner side, before we will file the reply brief I’ll do a moot court then too. And the point of that isn’t actually to get ready for oral argument. It is to press us to really best articulate and defend our position before we finalize and file the reply brief. But what we’ll try and do is put together groups of people who have real Supreme Court experience. So, the Georgetown program does this better than anyone and get them to act like the justices do. If you sometimes do moot courts with, for example, academics, they’ll just have their famous favorite academic theory of the case. And if you do it with lawyers who don’t have a lot of Supreme Court experience, they’ll think their job is just to be jerks because they have this vision of Supreme Court oral argument as just being really nasty, and it’s not at all. So, we depend a lot on other people in the bar and we do a lot of moot courts for them too.

[00:04:15] AH: How much of an opening statement do you draft and do you memorize it?

[00:04:26] TG: Well, before the court changed its rule so that you had a kind of guaranteed amount of time to talk, I would create an opening statement if I was the petitioner’s lawyer and I would mostly memorize it—not entirely. Now, you definitely do that for both sides because you know you know you’re going to have this uninterrupted time. But for the respondent, I tend to be much more flexible because I really want the beginning to reflect what’s happened in the first 30 or so minutes. There are people like Paul Clement who have a memorized full on opening statement for both sides including the respondent side, and they stick to it. I tend to adapt a little bit more but you know if Paul Clement does something you should do that instead.

[00:05:10] AH: Speaking to Paul Clement, Paul Clement does not take any notes after the lectern with him. Do you take anything?

[00:05:16] TG: I don’t. And it’s not because you know I have some better special command of what’s going on at oral argument. It’s because I was just never looking at it, and it was a little bit of a crutch and a little bit of a distraction. And I suppose I think it exudes a little bit greater confidence in your case if you stand out without any notes. So, I’m trying to figure out how to tell the justices over the phone that I don’t have any notes in front of me—when we do it for the pandemic.

[00:05:45] AH: I think you just did.

TG: There you go. I’m sure they listen to us.

AH: They’re listening.

TG: Absolutely.

[00:05:50] AH: Supreme Court is known as a hot bench. So, you can get a lot of questions. What do you do when you have a justice whose vote, you know, probably isn’t in play or definitely isn’t in play, but they’re really badgering you with questions?

[00:06:07] You really could have situations, Justice Scalia would be the most famous one, who someone would just, like, grab you by the throat and not let go. And if you know that their vote is not in play and the point that they are making is not in play, then sometimes you just have to say, “I’ve given you the best answer I can. Thank you.” And then they’ll stop. Now, there are other times where the justice is not in play, but the issue is important. And then you just have to—you may have to sit and fight with them. Or, the best strategy of all, I think if somebody is really bombarding you, is to be able to say, “Look, if you believe that, here’s why you still vote for me.” You’re not—one of the things that’s important to recognize about Supreme Court oral arguments is that the justices are so prepared they have relatively few actual questions. They’re making points. And what you have to do with someone is if they have a point, you’ve got to be able to say to them, “Okay, I accept your point or assuming arguendo your point, here’s why I still win.” But there are times where somebody’s vote is absolutely essential, they absolutely disagree with you, and you have to lay down on the tracks and fight with them.

[00:07:13] And that happened for me in a case called Georgia v. Randolph, where Justice Souter, who obviously has since retired, was really, really, really kind of negative about our position and thought that we were making their precedents into silly cases, he said. And I had to try and turn him around because it was a case that was if we were going to win, we were going to win five to four. It was one of these Fourth Amendment search and seizure cases that was going to break down on ideological lines.

[00:07:43] AH: Here’s that exchange. This is Tom Goldstein and Justice David Souter in Georgia v. Randolph.

[begin oral argument audio]

[00:07:48] Justice David Souter: It is clear that Matlock, had he known what was going on, and he may have, I don’t know, would have objected? So that if we accept your argument that the presence of the person they’re expressing an objection is what makes the difference, then Matlock and Rodriguez become almost silly cases. They’re cases that rest upon an assumption that is clearly contrary to fact.

[00:08:14] TG: No, Justice Souter, and that is the government has argued, and this court has accepted again, and this is a different point, and that is you have to have a clear line for police officers that is administrable. And the line that is reflected in Matlock and Rodriguez is if you get consent to come into the house from someone who has the common authority to do so, that will be sufficient. But that doesn’t mean that if some and so you don’t have to go around and finding other people and asking other people, it’s just as if you showed up at a house and you were invited in, you wouldn’t say, well, let me check with everybody else.

[00:08:49] JDS: But an equally clear line would simply be that if the area to be searched is one of common tenancy or occupation or whatnot, the only consent that will suffice will be the consent of the person against whom you expect to use any evidence found. Easy, clear line.

[00:09:07] TG: It’s true, Justice Souter. There are a lot of possible clear lines. What I’m describing to you is why the difference between Matlock and this case is one in kind, and that is that Matlock, I think, reflects an administrable rule. And that is if you do have permission from someone who has the authority to admit you, you don’t have to go ask anybody else.

[00:09:26] JDS: Okay, but an equally administrable rule here is that even though the person you suspect objects, you can still go in if a person with authority otherwise says you can. Equally clear rule, and it has one advantage. It does not turn Matlock and Rodriguez into silly cases.

[00:09:47] TG: Justice Souter. I don’t think they’re silly cases. I think that it is an important rule that the police show up and they are able to rely if they only hear from one person, they’re able to rely on that person. I don’t—I’m not claiming that our rule has great administrative advantages over the other side. What I’m saying is that it is not necessary to sacrifice the individual’s privacy.

[end oral argument audio]

[00:10:08] AH: Have you seen any examples where you think that oral argument made a real difference in the outcome of a case?

[00:10:15] TG: I suppose that I think in about one out of every 10 or 15 cases, oral argument can change the outcome in a significant way. It really has to be a situation where the court is five to four coming into oral argument, and you persuade one of the five to switch sides. So even if justices are persuaded more often, like in a seven-to-two case or an eight-to-one case, you know, it won’t change who wins or loses.

[00:10:40] TG: I think I’ve been involved in a case where I, you know, maybe did persuade our fifth vote. I had a case called Patel where I only came in to do the argument a couple of weeks before it happened. I wasn’t involved in the briefing of the case. And I kind of had a new take, a new precedent that I thought was very, very compelling in a kind of new, more modest position for our side. And it really did seem to change Justice Kennedy’s mind. I talked about this opinion, and then while I was talking about it, you could see that he got one of the messengers to go and get the book. And he was reading the opinion during the oral argument, and it ended up being very significant to the case.

[00:11:28] AH: Here’s Tom in City of Los Angeles v. Patel discussing the new precedent.

[begin oral argument audio]

[00:11:36] Justice Anthony Kennedy: The complexity of the answers, and frankly, the surprise I had with some of your answers may indicate that this is not a basis for a facial and not a case for a facial attack. It seems to me we had to go back and decide these issues on a case-by-case basis.

[00:11:51] TG: Well, Justice Kennedy, I’ll give you my responses to that, obviously. And that is that the court in all of the Colonnade line of cases and Camara cases has dealt with things on a categorical basis. It has never done it on a case-by-case basis because it has looked at the structure of the scheme. That is, this is a scheme where they’re not going to have any reason. They don’t need any justification to come in. We know what they can see. It’s still limited, right? It’s a particular record, but they can do it any time. And in that kind of scheme, what the court has consistently insisted on and I hope that the court will take a look at Lone Steer, is that there would be this minimum of a subpoena process I’m just describing.

[end oral argument audio]

[00:12:27] TG: And then I also had a case where the other side, it also involved Justice Kennedy. Justice Kennedy essentially begged the lawyer for the other side to say that they really did have a live dispute with my client, Nike, and he just stood on principle and said, “No, no, we don’t.” And ended up, he ended up losing the case. And four justices wrote a concurring opinion saying, we just really wish that the side had said it had a live dispute, and they would have won the case. And so, you know, it was an example, I think, of where someone, by sticking to principle, may well have cost themselves the win.

[00:13:07] AH: And here’s Already v. Nike, in which you can hear the justices asking the respondent’s lawyer to assert that there is a live dispute.

[begin oral argument audio]

[00:13:16] Justice Stephen Breyer: No, I’m not interested in the real world. I’m interested in the record.

[00:13:17] James W. Dabney: The record does not show that the petitioner lacks any concrete interest in entering the line of commerce.

[00:13:31] JSB: Does it show anything at all in respect that would support the claim that you are going to produce new footwear that does neither resembles nor is a colorable imitation of anything that you have previously produced or is the subject of the case?

[00:13:48] JWD: Your Honor, what the record shows and it is what it is, is that the petitioner is actively engaged in designing and bringing out new footwear products.

JSB: Period.

[end oral argument audio]

[00:14:05] AH: You’ve been arguing at the Supreme Court for a long time now, and you usually seem pretty comfortable before the justices. How do you feel about humor when you’re arguing before the justices?

[00:14:19] TG: Well, I’m obviously hilarious, but I think that you have to be incredibly careful because you don’t want to do anything that suggests that you think that oral argument is about you or you’re more clever than anybody. The best thing I think you can do is just be the straight man. Let them be hilarious and recognize it, and it’ll go much more smoothly.

Justice Scalia was probably the funniest of the justices. Justice Breyer sometimes will crack a few jokes. They tend to be pretty serious about their jobs. I do remember in one of my very earliest oral arguments, I had an exchange with the chief justice about how it is that the Ninth Circuit had ruled against our side in the case, and it was a time in which the Supreme Court was really, really down on the Ninth Circuit, was summarily reversing them left and right and, you know, had become very, very frustrated with that particular court of appeals a lot at the time. And it was just one of those times where you just kind of loft a softball in front of the justice and let them hit it out of the park.

[00:15:26] AH: And this was a while ago. So let me make clear, it was Chief Justice William Rehnquist, who was not necessarily known toward the end of his time on the bench for his sense of humor.

TG: No, he was a really serious guy.

AH: Here’s Tom in Los Angeles Police Department v. United Reporting with Chief Justice William Rehnquist.

[begin oral argument audio]

[00:15:48] Chief Justice William Rehnquist: How did the Ninth Circuit go about interpreting it, if there had been no state interpretation?

TG: Improvidently, I think is the first answer, but the—

[00:15:58] JWR: So what’s new?

[end oral argument audio]

[00:16:04] AH: How often do the facts of the case make a difference in the oral argument and the outcome of the case?

[00:16:10] TG: It’s not that often that you end up with a case where the facts are dispositive. The facts can be more important in oral argument than you would expect because the justices are very familiar with the law, but, you know, will be less familiar with the record in the particular dispute that’s in front of them. So, it can be really, really valuable to know that pretty cold because you’re filling in blanks. You’re doing what I call the principle of relative advantage.

You think you know, what do I know if this oral argument that justices don’t know? How am I not just repeating what’s in the briefs? And being really, really solid on the facts can do that. I had an early experience in a case called Smith, which was an age discrimination case where Justice Stevens was really, really interested in the facts. And I just was not able to give him the answers that he needed or that would persuade him. And this is one of those cases where you win but lose, because we got a really important legal ruling in the case. But Justice Stevens wrote an opinion that says, okay, here’s our legal rule. Now your clients lose under it.

[00:17:23] AH: Here’s Tom Goldstein and Justice John Paul Stevens in Smith v. City of Jackson.

[begin oral argument audio]

[00:17:29] Justice John Paul Stevens: May I ask the question at this point, going really back to the question I asked you at the outset of the argument? If I thought seniority or years of service was a reasonable factor other than age, and if I thought this particular compensation program was based on years of service rather than age, can I look at the reasonable factor other than age in deciding whether your complaint states a cause of action?

TG: Yes. Hazen Paper established that that is not.

JJPS: And if I do look at it and if I do come to the conclusion I have suggested, would I not have to dismiss your complaint?

[00:18:02] TG: I may misunderstand the hypothetical, Justice Stevens.

JJPS: The hypothetical, and I think it may be the case, that you have a compensation program which uses years of service as a basis for classifying employees, which has a disparate impact on older workers, but it does also it relies squarely on a reasonable factor other than age, if you will call years of service such a factor.

[00:18:24] TG: Yes, that’s perfectly legitimate that as I understand the hypothetical—

JSB: Suppose I want—

JJPS: I understand that to be the case.

[00:18:32] TG: No, it would not, because the rationale given by the employer here for… Let me take us to the facts and then the explanation that’s given by the employer. What happened here is they gave all of the line police officers much bigger raises than they gave to the more senior officers. That and the difference in pay between protected persons under the ADA and non-protected persons was four standard deviations, a 1 in 10,000 chance, statisticians will tell you. And they said—

JJPS: No, but the basis for differentiation was years of service, was it not?

[00:19:04] TG: The basis for differentiation was years of service. But the question is, is it a reasonable choice by the employer in this context? And the reason is that it’s a

JJPS: Well, I’m just asking in the abstract. Why wouldn’t that always be a reasonable factor other than age?

TG: I apologize. So I think I answered your hypothetical too broadly. And that is, it depends. In the great majority of cases, employers certainly can say, I want to give a class of employees more money. Perfectly sensible. Congress didn’t intend to block that. But the question is, is this outside the usual set of cases? And the city’s explanation for this policy, which was to give the line cops more money, but not the rest of the cops who happen to be all over 40, was that they wanted to bring the salary up to a regional average. And so we asked the question, does this accomplish that in a reasonable way? And it does not because they left out huge categories of employees.

[00:19:59] JJPS: But the factor… If I understand it,  it wasn’t because they were line officers, it was rather because they had a lesser years of service than the more senior officer.

[00:20:05] TG: No.

JJPS: No.

TG: That is not the facts here. That’s right. They did not say we are going to give pay raises to the people who have lesser years of service because we’re concerned about their pay. To the contrary. Let me take you to one piece of the record that I think will be helpful.

[end oral argument audio]

[00:20:20] AH: What are some of your favorite stories from your time at oral argument?

[00:20:24] TG: You know, the arguments sometimes have surprising twists or just things that you would never expect to happen. One of those was a case in which we were the second oral argument. And before oral arguments, when the court is in person, they do the opinion announcements. And so you sit there, they admit people to the bar and they read summaries of their rulings. And I was arguing this very important telecommunications case. And weirdly, the court issued an opinion that morning that was completely unrelated, may have had to do with, I don’t know, Native American law or something like that. But the structure of the two statutes was very similar. So they summarized the opinion and we are the second oral argument. While the first one is going on, I left the courtroom. I went downstairs to the public information office. I got the opinion and read it and highlighted and those sorts of things—got kind of familiar with it. I didn’t know anything about the case beforehand, then went back up. And during the oral argument, in my case, about two thirds of the way through started discussing the opinion that they had issued 30 minutes before. You could just tell that they were thought that was obviously unusual, but kind of enjoyed it. And I think it probably made a difference in Justice Ginsburg’s vote in that one case so that we only lost six to three rather than seven to two.

[00:22:00] AH: This is Tom in National Cable and Telecommunications Association v. Brand X.

[begin oral argument audio]

[00:22:06] TG: Who in the world would ever do it? If it’s up to the regulated entity, why in the world would anyone provide common carriage? I think this has actually a remarkable parallel to the court’s decision in the Oneida Indian Nation case, where the court rejected the suggestion that what you could do is that it would be up to the Indians to decide whether or not they would be able to get property back. This is what the court said, “If OIN may unilaterally reassert sovereign control and remove those parcels from the local tax rolls, little would prevent the tribe from initiating a new generation of litigation to free the parcels.” Remember, they’re free from all regulation, not free the parcels from land zoned local zoning or other regulatory controls to protect all landowners in the area. And then Justice Ginsburg’s opinion goes on to talk about Section 465, which is exactly like section 10 forbearance. “Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of the lands. The regulations implementing section 465 are sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory. The secretary must consider…”—and it lists a whole series of things. And the parallel, I think, is exact. You can’t have Congress enacting a scheme that tells you how to do it.

[end oral argument audio]

[00:23:18] AH: What advice would you give to somebody who’s arguing before the Supreme Court for the first time?

[00:23:23] TG: I think when you argue the first time. you can get overly ambitious. You can try and learn everything about everything. And you need to really focus, not lose the forest for the trees, really try and understand what’s really likely to come up at oral argument and be good at that. Then don’t try and accomplish too much. Really be thinking, okay, I think there are probably a couple of key points and a couple of key justices and just try and be persuasive on those things. I think you can really spread yourself too thin and get too ambitious in an oral argument and as a result end up not persuading anybody of anything. I really try during the oral argument to listen to the questions as if their statements of position and over the course of the argument figure out, okay, here are one or two justices who are genuinely interested and might change their minds and here the topics that really interest them and focus like a laser beam on that.

[00:24:22] AH: Think small. In other words.

[00:24:23] TG: Yeah, exactly right. Think small. I think there was a huge tendency by me at the beginning, at the very least, to think really, really, really big. And you’re playing small ball. You’re trying to hit singles, not home runs.

[00:24:34] AH: Tom Goldstein, thanks for joining us. And we look forward to hearing or seeing you at oral argument in Google vs. Oracle on October 7th in whatever format that takes place.

TG: Thanks so much for having me.

[00:24:49] AH: That’s another episode of SCOTUStalk. Thanks for joining us. Thanks to CaseText, our sponsor, and to our production team, Katie Barlow, Katie Bart, Kal Golde, and James Romoser.