The Supreme Court handed down three decisions on Tuesday, and the justices might issue some more today. In the world of the Supreme Court bar, one of Tuesday's cases drew special attention because it was the eighth win in a row for Jenner & Block partner Adam Unikowsky. Read his observations about his first Supreme Court argument in 2016, and others since then. Also, we preview today's only argument, Flowers v. Mississippi, and how a podcast has become a part of the case. Thanks for reading, and contact us anytime at [email protected] and [email protected].

Adam Unikowsky's SCOTUS Winning Streak

Jenner & Block partner Adam Unikowsky has done it again. The Supreme Court on Tuesday handed him a win in Washington State Department of Licensing v. Cougar Den Inc. That marks the eighth Supreme Court victory for Unikowsky, who only began arguing cases at the high court three years ago.

It was a splintered decision, but a win in an Indian tax case for Unikowsky's client, a fuel company owned by a member of the Yakama Nation in Washington State. Asked how he felt about his eighth win, he replied, “I'll just say this: I'm very pleased by the Supreme Court's decision and believe that its interpretation of the 1855 [Yakama] treaty is correct.”

Unikowsky (at left) burst onto the scene in 2016 with a run of winning arguments, beginning with Puerto Rico v. Valle, a double jeopardy case. He has won all of his seven argued cases, as well as another case that was a summary reversal.

How did he do it? In a recent article in The Journal of Appellate Practice and Process, Unikowsky reminisced about his first argument, and he also offered observations about oral advocacy:

>> “I prepared obsessively for the oral argument, doing three moot courts and spending most of my waking hours figuring out how I would respond to off-the-wall questions. The oral argument itself was a blur.”

>> “As in many a Supreme Court argument, my experience consisted of listening nervously to often lengthy questions that I wasn't sure I understood; stammering out a few words in response; and then being interrupted with another lengthy question.”

>> “In Howell v, Howell, I sat down with something like 13 minutes left, having gotten only a few polite questions from the bench. In Honeycutt v. United States, I don't think I got a single hostile question, and sat down 15 minutes early. My primary regret in both cases was that I droned on too long in rebuttal.”

>> “I have always found it unseemly for lawyers to take too much credit for Supreme Court wins. Supreme Court litigation is not a moot court competition. The Supreme Court rules for the better case, not the better lawyer.”

>> “Of course having a good lawyer helps convince the court about the strength of a case, but the Justices do try their best to look past the quality of the lawyering and get to the right answer.”

>> “I definitely didn't win the cases because of my oral arguments. My clients won the cases because, on the law, they deserved to win. I just went along for the ride, but it was a great ride.”

Podcast Plays Role in Flowers's SCOTUS Case

The sole argument today in Flowers v. Mississippi will likely draw a crowd, not only because of the issue at hand—race-based exclusion of black jurors in a capital case—but also because those peremptory strikes spread over Curtis Flowers's six trials. Yes, six.

Two justices are key at the arguments:

>> Chief Justice John Roberts Jr., who wrote in the 2016 case Foster v. Chatman, “Two peremptory strikes on the basis of race are two more than the Constitution allows.”

>> Justice Brett Kavanaugh, who in 1989 wrote a student Yale Law Journal noteurging that defense lawyers be part of the process of determining whether prosecutors' peremptory strikes were for “neutral,” not racial, reasons.

But the case has another intriguing twist at the intersection of modern media and Supreme Court litigation. We're talking about the In the Dark podcast, which since last April has broadcast more than a dozen episodes about the Flowers case.

The American Public Media production delved deeply, interviewing pertinent players who revealed information about Flowers' alleged murders that was never heard before, and developing important data never seen before. The team tallied information about 6,700 jurors in the Mississippi district where Flowers was tried, finding that the prosecutor's office struck black people from juries more than four times the rate it struck white people.

In other words, the kind of investigation that neither prosecutors nor defense lawyers would likely have the time or resources to undertake.

“For a five-person team of reporters and producers to be full-time on the story for a year, that's a serious commitment and I know that's not a commitment that many people could make,” senior producer Samara Freemark said in an interview.

The information unearthed by the team has proven useful as the Flowers case made its way to the high court. Two amicus briefs in support of Flowers cite information gleaned by In the Dark.

“APM's coverage made it possible for us to show how racial injustice was the driving factor in the decision to prosecute Mr. Flowers, the weakness of the prosecution against him, and the selection of a jury willing to convict him and sentence him to death for a crime he did not commit,” said James Craig of the MacArthur Justice Center, counsel of record in the brief on behalf of the Mississippi-based Magnolia Bar Association.

It's not new for litigants to cite news stories, but the depth of APM's investigation may be unprecedented, and therefore of unusually high value.

Freemark underscored that “as reporters we are not working for the defense. We don't turn over information to the defense, but whatever we make public for publishing obviously is fair game and can be used. You want to check our work? There it is.” She also noted that the team interviewed Flowers' prosecutor Doug Evans several times.

Freemark acknowledged that being cited in Supreme Court briefs is “pretty cool.” She added, “We don't do this work just to tell a good story. We do it to make a difference, and sometimes that difference looks like just better informing the larger public about how the criminal justice system works.”

>> Read more at American Public Media: How Might the Supreme Court Rule in Flowers v. Mississippi?

Supreme Court Headlines: What We're Reading

• Judges Lean Toward Trump in Hotel 'Emoluments' Case. “A three-judge U.S. appeals court panel signaled sympathy toward President Donald Trump on Tuesday in his appeal in a Democratic-backed lawsuit that accuses him of violating anti-corruption provisions of the U.S. Constitution with his Washington hotel.” [Reuters] The Washington Post has more here and The New York Times here.

• Public Safety Depends on Juries Chosen Without Racial Discrimination. “Fair jury selection resulting in a representative jury of a defendant's peers lies at the foundation of the criminal justice system. It seems clear that did not happen in Flowers' case,” writes David Ogden of Wilmer Cutler Pickering Hale and Dorr. [NLJ]

• Justice Breyer, in Dissent, Tangles With Kavanaugh Over Immigration. Writing in dissent in Tuesday's Nielsen v. Preap, Breyer took issue with Kavanaugh's declaration the majority ruling was “narrow.” [NLJ]

• Trump Taps Quinn Emanuel's Landau as Ambassador to Mexico. The White House has nominated Quinn Emanuel Urquhart & Sullivan partner Christopher Landau to serve as the next U.S. ambassador to Mexico. Landau formerly was a KIrkland & Ellis partner, and he clerked for justices Antonin Scalia and Clarence Thomas. [NLJ]

• Why Sandra Day O'Connor Saved Affirmative Action. “With O'Connor long gone from the bench (she retired in 2006) and a conservative majority solidifying on the Court, the conventional wisdom has become that racial preference is doomed in higher education. But O'Connor's struggles over this difficult issue illuminate why it will not be easy to stop the consideration of race in admissions at publicly funded institutions,” Evan Thomas writes. [The Atlantic]

• A Racial Pattern So Obvious, Even the Supreme Court Might See It. even amid law's cratered landscape, sometimes a specific case presents facts simply beyond belief; sometimes the “system” stands revealed as nothing more than one human being tormenting another because he can,” Garrett Epps writes. [The Atlantic]