Jon Fansmith: Hello, and welcome
to this bonus episode of dotEDU. If you've listened to the main podcast
this week, you know that ACE's general counsel, Pete McDonough, and I
discuss the upcoming US Supreme Court hearing on race and college
admissions, which is scheduled for October 31st. If you haven't, go
listen now. We thought it would be fun to get into the nuts and bolts of
how a lawyer prepares for appearing before the Supreme Court. Whether
it's a first-time experience for a lawyer or the 50th time, there's a
lot that goes into it. Including during the moot court phase of
preparing, which is basically a simulation of the real thing to give
lawyers some practice. In fact, some of that practicing is facilitated
by an ACE member right here in D.C.
Joining us for this bonus
brief is Jess Ellsworth, who is a partner with the Washington D.C, law
firm, Hogan Lovells. Hogan Lovells has been instrumental in helping ACE
prepare for many of our Supreme Court amicus briefs, including the one
we submitted for next week's hearing. Notably, for this discussion,
while she was in law school, Jess was named Best Oralist by then-Supreme
Court Justice David Souter in the Harvard Law School Ames Moot Court
competition. Welcome to our podcast, Jess.
Jess Ellsworth: Thanks so much, Jon.
Peter McDonough:
Jess, before you kick this off, I just want to say thank you as well
for that great work you've done on ACE's amicus brief that was joined by
38 other higher-ed associations. And for the folks listening in, a fun
fact. Jess, being a law partner at Hogan Lovells, means that she is also
a partner in the Appellate Advocacy practice that current Supreme Court
Chief Justice Roberts was in, when he was not once, but twice a partner
at Hogan Lovells. He served in-between in government service, and then
succeeded again to the Supreme Court bench after his second stint there.
So Jess, I'll turn it over to you, as we help folks understand what
goes into preparing to come before the Supreme Court, and present one's
position, and answer their questions.
Jess Ellsworth:
Thanks, Peter. I'm happy to be here and spend a little time thinking
about this with you all. Getting to do an argument in the Supreme Court
is something that a lot of advocates spend months thinking about, how
they're going to do it. I mean, this case, for example, the Harvard case
was filed in February of 2021. So, this has been a very long-time
coming. And I think whether it's your first argument or it's your 50th
argument, there are some aspects of the preparation that are going to be
consistent across-the-board. I want to just highlight a few of those.
The
first is that although you'd like to think you're really going to be
answering the Justice's questions, what you really want to be doing is
using the Justice's questions as a sounding-off point to make the points
you want to make. So in other words, their questions are really an
opportunity for you to highlight the five or six key points that are
most critical for your side to get across. So one of the things that
lawyers do in thinking about the argument and in approaching moot courts
in particular is figuring out how to use a question to get a particular
answer out there that they think is important for the Justices to hear.
And it may not always be the Justice who asks the question that you're
directing your answer to, but for some reason, there's some ear up there
that you want to hear the answer that you're giving. So, that's the
first thing that I think people think about.
I do want to touch on
the moot courts, and as John and Peter mentioned, Georgetown University
is one of the most prominent hosts of Supreme Court moot courts. Ones
that every advocate in every case is very eager to try and do. Moot
courts are a chance to get together panels of members of the Supreme
Court Bar and really do a dry-run of your argument, and see where people
think your weak points are. You can test out answers, you can test out
introductions, and really get some candid feedback. If there are
particular swing justices in a case, you can look to host a moot court
that involves some former clerks from those justices, who might have
some closer insights into how those particular Justices think about a
given issue or a given precedent that could be useful in preparing. So,
moots are very much an important part of the strategy.
Peter McDonough:
So you mentioned Georgetown, and as a double Hoya, undergrad and law
school, I'm thrilled to hear about the fact that there's a public
service element to what Georgetown is doing in this regard. How do you
sign up for that? What happens? I find out that I've been asked to argue
on behalf of a party at the Supreme Court. Do I call up the dean? What
do I do there?
Jess Ellsworth: So really, there's
often, in many cases, a race, the minute cert is granted, for one
advocate or the other to get an email into the Supreme Court Institute
asking for the Georgetown Moot Court. It's on the list we have for our
associates of what to do upon grant of certiorari, and it's really
number-one on that list, is try to secure the Georgetown Moot Court. In
some recent cases, Georgetown has actually hosted both sides in the last
couple years for the more high-profile cases. And I think that's a
credit to Georgetown, and how well-respected and regarded these moot
courts are that Georgetown hosts. And I can tell you, from some
involvement in a case I had earlier this fall, Georgetown is very
dedicated to making sure that the public service aspect of in terms of
its students is part of this process.
So Georgetown does allow
students to sign non-disclosures and then attend the moot court, and I
was involved in a case earlier this year where there were literally
dozens of attorneys who wanted to attend for the various parties. And we
got a very nicely-but-sternly-worded email from the head of the moot
court telling us that, given the number of seats that must be reserved
for Georgetown Law students, we were limited to a certain number of
attorneys who could attend. And the rest of us could watch by Zoom.
Which I really thought was, for Georgetown, a great way to make sure
that their students are getting the benefit of these, as well as the
advocates.
Jon Fansmith: Right. Because I assume
these are very secretive proceedings and things like that, but there's a
group of students who are brought. Is there no concern about the
arguments being previewed before an audience? How does that work? As
somebody who's totally unfamiliar with this.
Jess Ellsworth:
Yeah. So all the students who attend do sign an agreement that they
won't talk about it, and the confidentiality is stressed at the
beginning of the moot session. And frankly, as lawyers, we take our
obligations to confidentiality seriously, and I think law students do as
well. I don't think it's ever, to my knowledge, been an issue. But it
is really a great thing for the students to get to see advocates in
action, and get to see these arguments close-up.
Peter McDonough:
So, what do we expect on Monday? Do we expect intensely-prepared,
almost seamless answers to every question by a Supreme Court Justice? Or
is it inevitable that all of that preparation nonetheless leads to a
moment where the advocate is saying to herself or himself, "Boy, I
didn't see that coming"?
Jess Ellsworth: I think
it's a rare moment that the advocate is saying, "I didn't see that
coming." Particularly, with as seasoned an advocate as you have here,
arguing for Harvard. I just, I think if there was a question that
someone didn't see coming, they would pivot to one of those five key
points that I said they wanted to have at top-of-mind, and figure out a
way to answer the question with one of those. That is something that
people spend a lot of time, in preparation, figuring out how to pivot.
Because there's going to be some questions you don't want to answer, you
don't like the answers to, you know are not your strongest points to
make. So knowing how to and planning how to do a pivot to something that
you want to be spending your 20 minutes talking about, or 30 minutes if
you're the lawyer for the other side, that's something that's part of
the preparation as well. Practicing those pivots.
Peter McDonough:
You mentioned Harvard's lawyer, and I think that's because it's Seth
Waxman, who many of us know to have been a solicitor general of the
United States. But I'm not sure that everybody listening in even knows
what the solicitor general or Solicitor General's Office is, or where it
is, or what it does. So maybe a few words about that, and I'd be
curious about your impression as to whether that really does give one a
leg-up in being able to step before the Supreme Court, if you've been in
that role.
Jess Ellsworth: Absolutely. So, the
Solicitor General's Office is the part of DOJ that advocates for the
United States before the U.S. Supreme Court. So the attorneys who work
in the Solicitor General's Office have more experience arguing in that
court many times than lawyers in private practice, because it's what
they do day-in and day-out. There are a lot of members of the Supreme
Court Bar who cut their teeth on Supreme Court arguments in the
Solicitor General's Office. You mentioned earlier Chief Justice Roberts.
That was certainly where he spent a lot of time as an advocate. Seth
Waxman was there. One of the co-heads of my group, Neil Katyal, was
there as well. And that is, I think, a launching point for many young
advocates in getting Supreme Court arguments.
As a party before
the court, having the SG argue on your side is frequently seen as very
important. If you can get the SG to come into a case on your side. They
are viewed sort as the 10th Justice, is the way the SG's Office has been
described, because of the kind of credibility that they bring to their
arguments. And the weight of the United States on your side, in many
cases, is something that everyone is eager to have. Certainly, the
universities in these cases will have the SG arguing, and I'm sure the
SG will do a great job. The downside of having the SG argue as well is,
you have to split your time. They give the same amount of time to both
sides of the V. So if the solicitor general is arguing on your side,
then you, as the advocate for the party, have less time than the
advocate for the party on the other side.
Jon Fansmith:
So if the solicitor general were on your side, as part of the moot
process, would you present in partnership in the moot court? Is that how
it would be practiced?
Jess Ellsworth: So
someone from the SG's office often will attend the Georgetown Moot, and
you can invite them to other moots that you may hold as well. The SG's
own internal mooting process is very confidential, and they typically do
not invite private parties to attend. To the extent they do invite you
to attend, they don't invite you to attend their discussion afterwards.
So you might get to listen to the moot part, but not participate in any
of the discussion.
Jon Fansmith: I'm curious,
Jess, you mentioned the five or six key points. Obviously, you have
great experience with this, and familiar with others who do. Is it
common that, after the moot process, when you're getting that feedback,
that there's a substantive revision of the way you approach the case or
the points you try to raise? Or is it more they're sort of putting a
fine point or sharpening certain arguments?
Jess Ellsworth:
I think the most substantive revisions typically come to your
introduction. So, the way the Supreme Court is doing arguments now is
that you get a very brief uninterrupted period at the beginning of the
argument. I have certainly seen and worked with lawyers who have tried
out four or five different ways of approaching that uninterrupted period
to try and see where it leads them in terms of the first questions that
they get, what kind of setup it gives to the answers that are going to
follow. So I think you're more likely, throughout the mooting process,
to revise that introduction. Your five key points, there may be some
nuance in how you're presenting them when it comes to game day. But
along the way, you're going to have an idea of what those five points
are roughly going to be.
Jon Fansmith: That seems
very fascinating, I have to say, as somebody who, when Pete first
raised this idea, I had sort of heard of moot courts. But particularly
at this level, and the stakes involved in presenting before Supreme
Court, particularly on the kind of issues we're talking about, it is a
really fascinating insight. I really appreciate you just taking the time
to share that with us. I guess the only way you'll get to experience it
personally is if you become a member of the Supreme Court Bar or attend
Georgetown Law. So strong recommendations to our listeners to pursue
either of those paths, if they appeal to them. I'm sure it's quite easy
to do both. But Jess, before we go, anything you'd like to add before we
sign off?
Jess Ellsworth: So I do have one
closing thought, which is that in a case like this, where an advocate is
pressed for time to try and answer questions, having amicus briefs from
voices that the court is interested in hearing about and being able to
point to those briefs is extremely important. Here, I think the ACE
Brief, which was joined by dozens of other higher-ed associations, gives
the advocates for Harvard and UNC an opportunity to point the justices
to that brief for a credible and trustworthy view from,
across-the-board, the spectrum of universities and colleges in the
country. That's extremely beneficial for the Justices and the advocates,
and it's a credit to ACE to have led that effort
Peter McDonough: We appreciate, Jess, the hard work that you and your colleagues put into that. Thank you.
Jon Fansmith:
Jess, thank you so much for taking time to join us on this bonus
episode, this brief bonus episode of dotEDU. And thanks, everyone, for
listening.
Sarah Spreitzer: As always, you can
check out earlier episodes and subscribe to dotEDU on Apple, Google
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show notes and links to the resources mentioned in the episode, you can
go to our website at acenet.edu/podcast. Thank you so much to all of
you for listening.