The justices return to the bench today for their next cycle of oral arguments, leading off with two arbitration cases of interest. Speaking of oral argument, we offer up some tips on how to do it right, from two veteran advocates. Plus, some cautionary words from former SG Don Verrilli Jr. about the current state of the rule of law. Stay tuned for argument and other coverage Tuesday and Wednesday. Thanks for reading! Contact us at [email protected] and [email protected].

Art of the Possible: Tips for SCOTUS Advocates

With 20 and 42 Supreme Court oral arguments under their belts respectively, Sarah Harrington and Tom Goldstein have plenty of experience and advice to share about preparing for some of the most intense hours experienced by any lawyers.

Harrington (above) and Goldstein, partners at Goldstein & Russell, did just that on Friday at a legal skills conference sponsored by the American Bar Association's government and public sector lawyers division.

Some of their tips on what to do and not to do when making a case to the high court:

➤➤ Thirty questions: When Chief Justice Roberts Jr. was an appellate advocate, Harrington said, he would prepare by writing on index cards a hundred or more questions the justices might ask. Harrington goes with more like 30 questions and then writes out how she would answer them “to get in your head how you are going to talk about it.”

➤➤ 'Three reasons': Harrington urged starting an oral argument as petitioner with a strong, succinct opening statement that includes saying there are “three reasons” why the lower court ruling was wrong. Chances are that justices will interrupt before you get to all three, but often a justice will say later, “what was your third reason?”

➤➤ The trees, then the forest: ”Drill down on the specifics of the case,” Harrington said, but then “understand the forest—the big picture.” More than any other court, the Supreme Court is interested in the broad ramifications of a case, not just its factual details and outcome.

➤➤ Justices come prepared: Goldstein said advocates need to be “very aware of where the justices are” in the run-up to arguments. “They're unbelievably prepared,” he said, and some justices have been “thinking about your issue for decades.” He estimated he has only been asked 10 questions in his 42 arguments about the facts of the case.

➤➤ The art of the possible: “You cannot go into an argument in the Supreme Court and persuade all of the justices of everything,” Goldstein said. Instead, you might have to focus on one justice who is on the fence, and play defense with the other justices. Decide “how you should lose” and what outcomes you can live with.

➤➤ Be tough on yourself: ”We come to believe our cases and don't challenge ourselves,” Goldstein said. Through moot courts and other avenues, face the weak spots in your argument and figure out how to deal with them. “It's super-easy to explain the easy parts of your case,” he said, but not the hard ones.

➤➤ 'Crazy uncles': Understand ahead of time what kind of arguments each justice will and won't go for. Goldstein likened it to knowing what you should or should not talk about with your “crazy uncle at Thanksgiving,” so that you go into oral argument knowing “which crazy uncle each justice is.”

Verrilli: 'Rule of Law is Really Under Threat'

At the same ABA event on Friday, former Obama administration solicitor general Donald Verrilli Jr. praised the work of government lawyers and said they play an important role in “this difficult time now for public servants.” Without elaborating, Verrilli also said, “I think the rule of law is really under threat.”

Verrilli, now a partner at Munger, Tolles & Olson, said “a lot of people who are trying to gain political advantage are undermining the faith of the people of the United States in the institutions of government. And that's a terrible thing for the country.”

Addressing government lawyers in a range of agencies, Verrilli added, “You carry a lot of responsibilities as a public servant, but you have another one now because of the time that we're in—to be the custodians of the rule of law for our country and its people … The best way we can preserve the rule of law in this country is for all of you to do your job the way it is supposed to be done—with integrity, with dignity, and courage.

➤➤ We'll see more of Verrilli soon. 

Verrilli is scheduled to argue before the Supreme Court this Wednesday in Jam v. International Finance Corp.—his first high court argument since leavinggovernment service in 2016. He'll be representing the finance corporation in a case testing whether international organizations enjoy the same level of immunity from lawsuits as foreign governments do. Verrilli will go up against Stanford Law School professor Jeffrey Fisher and assistant to the solicitor general Jonathan Ellis.

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Supreme Court Reading

>> Sandra Day O'Connor forged special relationships with three law schools: Stanford Law School; Arizona State University's law school; and College of William and Mary's law school.

>> Justice Elena Kagan wondered aloud whether an 18-year term for justices would provide the same independence as life tenure. “Maybe,” she said, adding that an 18-year term might “take the high stakes out of the confirmation process.”

>> The U.S. Justice Department has lined up against the EEOC in a dispute over the scope of Title VII rights, our colleague Erin Mulvaney on the labor-and-employment beat writes.

>> “I cannot imagine a scenario in which any self-respecting judge would allow an incoming law clerk to undergo top secret training. Nor would such a judge tolerate a law clerk who placed the interests of outside organizations or financial investors over those of the judge,” writes Todd C. Peppers, a public affairs professor at Roanoke College and the author or co-editor of three books about SCOTUS clerks.

>> “Cases challenging the timing, methods, funding and providers of abortion are headed inexorably toward the high court at a time when Chief Justice John Roberts and his colleagues are seeking a lower profile,” USA Today reports.

>> “The First Amendment may not command that the plaza be a public forum, but Congress should act to designate it as such,” writes Jonathan Peters, a media law professor at the University of Georgia.

>> “We have too long tried to take on the court with the tools of law, but if the court is in fact a political branch, then instead of using the tools of law, you need to use the tools of politics.” Politico talks with the activists who want to add four justices to the court.