Happy Thanksgiving, everyone, and thanks for reading Supreme Court Brief before ending your work week! We have some Supreme Court-related Thanksgiving food tips for you, as well as two newsy items: how Williams & Connolly Supreme Court veteran Kannon Shanmugam deftly handled an epic-length question from Justice Breyer, and an appraisal of the Constitutional Accountability Center on its tenth anniversary. We'll return next week when the court resumes hearing oral arguments. Feedback welcomed at [email protected] and [email protected].

Breyer's Epic Question, Shanmugam's Nimble Answer

The Supreme Court's helpful guide for counsel who are planning to argue cases offers memorable anecdotes of exemplary lawyers who handled arguments well.

Without naming the lawyers' names, the guide recounts (see page 6) arguments made by the late Bruce Ennis Jr. and Arnold & Porter's Lisa Blatt (when she was a lawyer in the solicitor general's office,) praising their deep familiarity with the workings of the clients they were representing.

Ennis argued a First Amendment case related to beer labeling in 1994, fielding an irrelevant question from Justice Antonin Scalia: “What is the difference between beer and ale?” Without missing a beat, Ennis provided the answer, proving how well he had schooled himself in the business of his client, Coors Brewing Company.

Just guessing, but the guide's next anecdote on how best to argue before the Supreme Court could be drawn from the oral argument Nov. 7 in Republic of Sudan v. Harrison. It's an important case involving a huge judgment against Sudan for the victims of the USS Cole bombing in 2000, the fate of which depends on whether notice of the litigation was sent to the wrong address.

Williams & Connolly partner Kannon Shanmugam, representing the victims, argued to the court that the pertinent statute, while it may be ambiguous, does not prohibit service by mail to an embassy. He ran into skepticism from several justices, but none more than Justice Stephen Breyer.

Breyer launched into a lengthy question—not one of his quirky hypotheticals—revealing his multiple concerns, as well as the research done by one of his law clerks, who found that 22 to 27 countries require service to their foreign ministry, not to embassies. The question took up 69 lines and more than three pages of the transcript and, by one count, more than 10 percent of Shanmugam's 30-minute oral argument time.

Breyer ended his soliloquy with this: “Now I put that long question to you because I want to give you a chance to say no, I'm wrong, there are 32 countries who do it differently, or whatever you want to say.”

Without hesitation, Shanmugam replied, “Well, I'm not going to say you're wrong, Justice Breyer, but I will address what I think were really the three parts of your question: first, text; second, policy; and, third, the practice of other countries.” He proceeded to discuss each of those parts.

McDermott Will & Emery associate Steven Vaughn, who tallied the length of Breyer's question, tweeted, “Only the most skilled, graceful advocate can keep so cool.”

Shanmugam declined to comment on the exchange. But Carl Cecere, a Dallas appellate expert and #appellatetwitter star who watched the argument and filed an amicus brief on Shanmugam's side, said this:

“Kannon's answer was marvelous. He not only remembered each part of the question and organized a coherent response—itself a challenge. He turned each of Justice Breyer's concerns into a point in his favor.”

Making the Constitution Work for Liberals

The Constitutional Accountability Center recently celebrated its tenth anniversary as a force for invoking the Constitution's “text, history and values” to produce progressive results. We missed its celebration that took place at the offices of Mayer Brown, but recently caught up with center president Elizabeth Wydra (above) to discuss the center's accomplishments and future.

First, some background: When I (Tony) first wrote about the center in 2008, the first sentence in the story was: “The United States Constitution: It's not just for conservatives anymore.” I didn't know it at the time, but Wydra said that line became the informal motto of the center. “It's fair to say we live that credo every day, and work to spread that message not only in courtrooms, but also in legislatures, newspapers and television screens across America,” Wydra said.

The goal of founder Doug Kendall, who died in 2015, was to recapture the “constitutional high ground” from conservative groups like the Federalist Society and the Heritage Foundation that had been very successful at channeling the debate about constitutional principles in a conservative direction.

“There's nobody out there systematically making the argument that the Constitution's text and history are on the progressive side,” Kendall said in 2008. It's now ten years and 112 Supreme Court briefs later for the center. It has weighed in on cases ranging from Wyeth v. Levine (drug regulation) and McDonald v. Chicago (Second Amendment) to Obergefell v. Hodges (same-sex marriage.)

Just this week, the center was a key part of the legal team representing Senate Democrats who challenged the legitimacy of acting U.S. attorney general Matthew Whitaker.

Some thoughts from Wydra about the center's past and future:

➤➤ “What hasn't changed, from the very beginning, is CAC's commitment to being an influential voice in the Supreme Court's incredibly important work. Some we won, others we lost.”

➤➤ “As CAC's first chief counsel, I built our litigation approach through careful arguments rooted in the Constitution's text, history, and values aimed at appealing to Justice Thomas as well as Justice Ginsburg.”

➤➤ “The challenge of a conservative Supreme Court and administration is a challenge CAC was born with—we were founded during the last year of George W. Bush's presidency. CAC was made for this moment. As scholars of the whole Constitution, we at CAC know that our arc of constitutional progress is strong and that the people have pushed our national charter through some of its darkest periods.”

➤➤ “Now that our fellow progressives are facing a staunchly textualist and/or originalist conservative majority, we hope to convince our progressive friends to embrace the text, history, and values of the whole Constitution with enthusiasm. Not as some short-term political tactic—though polling does show our approach is more popular than others—but instead as a sincerely-held conviction that the Constitution is on our side in the most contentious battles that lay ahead. Because it is.”

The center's bottom line as it begins its second decade, according to Wydra: “We're accustomed to speaking with conservatives and libertarians on their own terms, whether on the bench or in the public square. We will continue to approach constitutional advocacy that way now that the Court counts Justices Gorsuch and Kavanaugh among its members, just as we have never counted out conservative justices in the last decade.”

Colbert Grilled Sotomayor (Over Hot Dogs)

You may remember back in March, CBS Late Show host Stephen Colbert worked out with Justice Ruth Bader Ginsburg. Entertaining, to be sure. But there was one part of the interview that struck a nerve. Colbert asking Ginsburg this question: Is a hot dog a sandwich?

Ginsburg averred that under the definition of a sandwich as two pieces of bread with something in between, a hot dog was indeed a sandwich. As we reported at the time, not everyone in the legal community agreed.

Colbert recently got a chance to seek out another opinion. He was interviewing Justice Sonia Sotomayor on the occasion of the publication of her new children's book, Turning Pages.

Here is how the conversation went:

>> Colbert: We already have a ruling from one of your colleagues, Ruth Bader Ginsburg, on this, perhaps one of the most divisive issues in America today. But I want to pose it to you to see if we have a concurrence: Justice Sotomayor, is a hot dog a sandwich?

>> Sotomayor: This is not fair, because I watched her interview with you.

>> Colbert: Well, you see other people's oral arguments. Perhaps you can render your own judgments. Or are you so influenced by Ruth Bader Ginsburg that you can't have your own opinion?

>> Sotomayor: Well, I can approach the problem in a different way than she did. My definition of sandwich is something between two parts of a bread—or two slices of a bread. And under that definition, a hot dog can be. Because whether the breads are tied together or not is irrelevant. I would answer “yes” under that definition. By the way I love hot dogs.

Colbert and Sotomayor proceeded to wolf down hot dogs, which Colbert said with a pained look on his face were at “room temperature.”  

Speaking of Food… Thanksgiving and the Supreme Court

During the December holidays, we often reprint the egg nog recipe found in the papers of Chief Justice Harlan Fiske Stone.

But what about Thanksgiving? In Clare Cushman's excellent book “Table for 9,” about Supreme Court food lore and recipes, little is mentioned about Thanksgiving, except for Justice Tom Clark's tradition of inviting his law clerks to his home for Thanksgiving dinner.

Digging deeper into history, Cushman unearthed a nineteenth century recommendation from Justice Stephen Field's wife Sue on how to prepare a live turkey for eating. Three days before the bird is slaughtered, she urged, it should be fed English walnuts, plus a glass of sherry daily. “The meat will be deliciously tender, and have a fine nutty flavor,” Mrs. Field wrote.

Then there is Justice Anthony Kennedy's mother's recipe for persimmon pudding, served at Thanksgiving and Christmas dinners. Sis Kennedy gave the recipe to Nancy Reagan, according to Cushman, and the recipe can best be found under Nancy Reagan's name. Enjoy!

Supreme Court Headlines: What We're Reading

>> Shifting legal strategies: “The confirmation last month of Justice Kavanaugh created arguably the most conservative Supreme Court in recent history. In response, legal advocacy groups on both the left and right are shifting their legal strategies.” [WSJ]

>> A bonus too far?: Big Law firms are paying upwards of $400,000 to snag former U.S. Supreme Court clerks. [NLJ]

>> Kavanaugh is “family”: “The nine of us are now a family and we're a family with each of us our own burdens and our own obligations to others,” Justice Sonia Sotomayor says. [CNN]

>> George Conway's amicus brief: The Wachtel counsel and husband to Trump counsellor Kellyanne Conway represents the U.S. Chamber in urging the justices to curtail shareholder class actions. [Reuters]

>> Not something you see often: Justices Gorsuch and Sotomayor joined forces—in dissent—to argue in support of a criminal defendant raising a Sixth Amendment confrontation clause challenge. [NLJ]

>> Whitaker appointment questioned: Tom Goldstein's leading the charge in a new push at the high court to confront the lawfulness of Matt Whitaker serving serving acting U.S. attorney general. [NLJ]

>> Anthony Kennedy's view: “The public will very soon see that the court is operating in a collegial, deliberative, thoughtful, inspiring way.” [Bloomberg]