August 1999

A Lawyer's Day at the United States Supreme Court

Much has been written about the conservative and liberal factions of the United States Supreme Court. For example, the thesis of last year's Closed Chambers, a tell-all account by a former clerk [reviewed in Bar News, February 1999, p. 38], is that warring camps, led by ideologically driven clerks, control the Court's decision-making.

I didn't see it on my visit to the Supreme Court.

What I did observe reminded me of the anecdote regarding Justice Oliver Wendell Holmes, Jr., who served on the Court from 1902 to 1932. The esteemed Justice was returning to the Supreme Court from lunch with a young lawyer who was visiting Washington. As the two men parted, the protégé called out to Holmes, "Do justice, sir." Holmes, then in his 90s, wheeled around and shot back, "No, sir. I shall interpret the law. Justice is none of my business."

Little has changed. Addressing the Supreme Court, I made the point that my client had suffered a substantial injustice at the hands of the federal government. Justice Scalia interrupted: "This happens all the time when people are confronted with the defense of sovereign immunity. That's the whole beauty of the defense," he intoned to amused courtroom observers. "It lets the government get off when the government ought to pay."

Today's Supreme Court continues to make interpretation of the law paramount. In my case, the law to be interpreted was the 1976 amendment to the Administrative Procedure Act, 5 USC 702. That statute waives the federal government's sovereign immunity whenever a claimant seeks relief "other than money damages."

A year earlier, the Ninth Circuit had upheld my Wapato, Washington, client's suit against the Army in Blue Fox, Inc. v. Small Business Admin., 121 F.3d 1357 (1997). Blue Fox, a subcontractor on a federal construction project, had notified the Army that the prime contractor was not paying them. Nevertheless, the Army continued paying the defaulting prime. The Army deleted a contract provision requiring that the prime contractor furnish a bond under the Miller Act, which would have protected Blue Fox. In upholding jurisdiction, the Ninth Circuit held that Section 702 waived sovereign immunity to allow the subcontractor to enforce an "equitable lien" on monies retained by the government. Such a lien was distinct from "money damages," the Ninth Circuit concluded, and fell within the Section 702 waiver. Although suits by subcontractors against the government traditionally have been barred by sovereign immunity, the Ninth Circuit stated that the enactment of the 1976 amendment to Section 702 changed all that.

Calling this decision "unprecedented," the Army sought further review. Ordinarily, a request for Supreme Court review might not cause undue concern. When the Solicitor General (the Justice Department office which argues before the Supreme Court) petitions on behalf of the United States, however, approximately 70 percent of its requests are granted. That average is even higher in cases from the Ninth Circuit, where the Supreme Court has had a propensity to reverse.

It was thus only somewhat surprising to learn that the Court had selected my case to be heard during the October 1998 term.

What were Blue Fox's chances at the Court? My issue seemingly transcended political boundaries. Might conservatives on the Court side with a small business whose rights were infringed by the government? Or would the Court be more interested in curbing a perceived judicial excess by the Ninth Circuit?

After completing the briefing, but prior to oral argument, I traveled to Washington, D.C., to observe the Court in session. A large number of seats located immediately behind arguing counsel are reserved for members of the Supreme Court Bar, giving attorney observers a bird's-eye view of the action. The arguments I observed over two days ranged from excellent to disappointing. One impressive advocate was Georgetown law professor David Cole, representing clients singled out for deportation as a result of their political beliefs (Reno v. American-Arab Anti-Discrimination Committee). In one exchange, Cole mentioned that his client was only the third person in history to have been selectively targeted for deportation. Justice Ginsburg (true to her reputation as a stickler for detail) asked: "Who were the other two?" Without missing a beat, Cole furnished the names and circumstances, including "John Lennon, former Beatle." Although the issue concerned interpretation of an arcane statute, Cole kept the larger First Amendment issue at the forefront. He compared his client's situation to a hypothetical IRS audit of the Washington Post as a reprisal for running pro-Republican editorials. Exhibiting a marked regret, Justice Scalia chimed in: "No, sir, the Washington Post can't be deported."

Surprisingly, I observed an apparent collegiality among the Justices. Justices Breyer and Thomas, sitting to the far right, frequently shared a humorous thought. Justices Souter and Scalia, sitting to the left, also conversed comfortably. This came as something of a surprise, as I recalled that Justice Souter was the recipient of one of the most vitriolic of Justice Scalia's famed dissents.

By chance this past summer, I came across a C-SPAN interview with Chief Justice Rehnquist from six years ago. I reached for the "record" button as interviewer Brian Lamb began to ask about oral argument. "Does it make a difference?" "Yes," the Chief replied. "In a substantial minority of cases" he came away with a somewhat different perspective. "Can you tell if a lawyer is nervous?" asked Lamb. "They're all nervous," he replied, likening the process to an athletic contest. Rehnquist added that he himself had once argued before the Supreme Court while a Justice Department attorney, admitting that he was "bathed with sweat" when the ordeal was over. Throughout the discussion, Rehnquist showed empathy for the lawyers appearing at the Court. Each justice must find his or her own level of comfort in deciding how far to push a lawyer, he said, observing that the process was inherently unequal. Basically, he said, the lawyer "just has to take it." I found Rehnquist to display a humor, humanness and self-effacing manner at odds with his public persona.

Little of that was apparent during the 30 minutes I stood just 10 feet from the Chief, however. In fact, I learned a bit about "taking it," as the Chief Justice expressed deep skepticism that a subcontractor could ever lien federal property. Where in the Supreme Court's decisions, Rehnquist demanded to know, did I find authority for a subcontractor to assert such a lien? Although a line of Supreme Court suretyship cases stretching back 100 years had expressly recognized such rights, Rehnquist was unconvinced that a lien could arise against the government as a stakeholder of funds: "With a body that has sovereign immunity, you just don't lightly say they were a stakeholder unless there is some authority," he proclaimed. The Chief, I also learned, was interested only in Supreme Court authorities. When I uttered in passing the name of a lower federal court, Rehnquist cut me off in mid-sentence: "We're not bound by Court of Claims cases here."

More thunder came from Justice Scalia. Widely regarded as the high Court's toughest questioner, Scalia has been known to come out of left field with his questions. In a business dispute involving a brewing company, Scalia once asked an attorney, "What's the difference between beer and ale?" More nerve-racking to me was the fact that Antonin Scalia is one of the nation's leading sovereign immunity scholars. Prior to his ascendance to the bench, Scalia published numerous articles, mostly concerning administrative law. His most comprehensive work, however, was a thorough analysis of federal sovereign immunity law, contained in a 70-page law review article written while a law professor at the University of Virginia.

Justice Scalia also had personal familiarity with the statute in question. As an Assistant Attorney General, Scalia himself had written a portion of the legislative history to the 1976 amendment, the very statute at issue in my case. No one seemingly had a better understanding of what the statute was intended to mean. But Justice Scalia hates legislative history. So much so that he recently authored a book entitled A Matter of Interpretation, the theme of which is that legislative history has no place in statutory construction. Every Supreme Court practitioner knows never to quote legislative history to Justice Scalia. Might he make an exception for legislative history from his own hand?

As it turned out, my legislative history worries were for naught. Justice Scalia had more immediate concerns. He believed that no money existed on which to place a lien (since the government continued paying the defaulting prime contractor, thus dissipating the money). "Where does this liened fund exist?" he asked. Having anticipated the question, I began my carefully prepared answer. Scalia pressed me that there was nothing left to lien. I had been warned never to interrupt a justice and always to stop talking when a justice is addressing you. But as I answered this series of questions, I noticed that Justice Scalia "speaks" through expressions as well as words. "Don't even think about going to that line of reasoning," his glance told me. But his voice was silent, so I continued my response. A roll of the eyes and reddening of the face all but said, "It pains me beyond words to even imagine what I'm going to hear from you next." Still, no words. As I continued, the intensity of expression escalated. A frank facial realization acknowledged that the horror of horrors was at hand: this lawyer was repeating an argument from his brief with which the Justice disagreed. "No," he bellowed, "It is not. It's — I mean no."

Justice Souter quickly changed the tone. In contrast to Scalia's staccato bursts, Souter's practice is to provide a slow and reasoned exposition of the issue as it stands in his mind. His careful elaboration provided a welcome break from the preceding fireworks. Indeed, I took comfort that the countless rewrites of my brief had paid off: Souter obviously understood my theory and argument.

But I was far from off the hook, as Justice Ginsburg awaited. Although she had earlier complimented my "artful pleading," Justice Ginsburg was about to ensnare me with her legendary fascination with detail. A valuable source in preparing for argument was the Almanac of the Federal Judiciary, which collects information about the justices from articles, speeches, cases and interviews. Most observers commented on Justice Ginsburg's concern with detail and procedure. One attorney went so far as to describe her as "picky, demanding, academic and school-marmish." I saw what she meant when Justice Ginsburg asked me to recite a detail from the contract between the Army and the prime contractor: "How would you find out if this was typed a construction contract or a service contract?" she asked. Since the question reflected an apparent misapprehension on Justice Ginsburg's part, I pointed out that a Miller Act bond was required, no matter how the contract had been classified by the contracting agency. Justice Ginsburg stopped me in my tracks. In her slow and deliberate manner, she stated: "I'm asking you a question. How would I find that out if I wanted just that information?" I quickly furnished the detail and the questioning moved on.

It was now Justice Breyer's turn. The Almanac warns: "Get ready for Breyer's deceptively tricky, summing-up sort of question at the end of your half hour. 'Here is what I hear you saying. Let me know if I've got it wrong.'" True to form, late in my argument, Justice Breyer began to "sum up" my case. Displaying a playful skepticism, Breyer's comments (like Souter's earlier) reflected a perfect understanding of the nature of my legal theory. Frequently smiling, Breyer plays the law professor he once was, having great fun in the process.

Before I knew it, the red light on the lectern had been illuminated and Chief Justice Rehnquist was saying, "Thank you, Mr. Spaulding." The questioning had been sharp and persistent. Every justice except Stevens and Thomas had asked something. Although the justices as a whole appeared skeptical of my case, I took solace from the fact that both Souter and Breyer clearly understood my legal argument.

Alas, the result was disappointing. In an opinion by Chief Justice Rehnquist, the Court held that sovereign immunity prevented Blue Fox's suit for an equitable lien, which constitutes a request for "money damages" within Section 702's meaning. Dep't. of the Army v. Blue Fox, Inc., 119 S.Ct. 687 (1999).

Was the experience worth all I had been through? The countless hours of uncompensated time, the lost time from my practice, the Thanksgiving "vacation" spent in the law library, the sleepless nights awaiting oral argument?

I'd jump at the chance to do it again.

Thomas F. Spaulding is a partner in the Portland, Oregon, firm of Spaulding, Cox & Schaeffer, LLP. He has a general civil trial practice with emphasis on appellate and government contract law. He can be reached at 503-223-6901 or at webhub@teleport.com.

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