Vol. 34, No. 1
Bar News Highlight
by Anthony Viorst
The "Highlight" page of Bar News spotlights recent activities and special events around the Bar, and presents brief stories that deal with lawyer activities outside the practice of law. If you have print or digital photos of a recent event to share with fellow CBA members, if you would like to recommend a colleague to be "highlighted," or if your local or specialty bar or legal organization has marked a notable milestone and there’s a short story to tell about it, the "Bar News Highlight" page might be the appropriate venue. Please contact Leona Martínez at leona"firstname.lastname@example.org or Amy Sreenen at email@example.com with questions.
A Visit from the Clerk of the U.S. Supreme Court
by Tony Viorst
On November 17, 2004, in an event sponsored by the Colorado Chapter of the Federal Bar Association, more than 100 lawyers (the author included) were sworn in to the Bar of the U.S. Supreme Court. The event’s speakers included U.S. District Court Senior Judge John L. Kane, Jr., who addressed the issue of civility in the practice of law, and William K. Suter, Clerk of the U.S. Supreme Court, who provided insight, from his unique perspective, into the workings of the highest Court in the land.
William K. Suter
William K. Suter is a retired U.S. Army General who served during the Viet Nam War. He has been Clerk of the U.S. Supreme Court for the past thirteen years and presents himself as a warm and intelligent man with a good sense of humor.
Suter revealed that the U.S. Supreme Court accepts for review approximately 150 of the 6,000 petitions for certiorari ("cert.") filed each year. He said that cert. is most often granted when there is a split in the federal circuit courts regarding a particular issue. When cert. is granted, the Clerk’s Office sends a "welcome packet" to each side. This packet contains pointers on matters ranging from briefs specifications and typesetting to the appropriate attire for oral arguments and the proper way to address the Justices.
In his capacity as Clerk, Suter has sat through more than 100 oral arguments before the Court. In his opinion, the key to a successful oral argument is "preparation, preparation, preparation." He gave an example of a case that involved Coors Brewing Co., in which Justice Scalia asked counsel, apropos of nothing, what the difference was between beer and ale. Counsel apparently had done his homework, and was able to provide an accurate distinction between the two beverages—to the satisfaction of Justice Scalia.
According to Suter, sometimes when a litigant becomes tongue-tied during oral argument, a Justice might help him out, so as to advocate the position the Justice favors. For instance, it apparently is not uncommon for one Justice to ask a question of an attorney and, following a less-than-thorough answer by the attorney, for another Justice to follow up with additional points that could have been made by the attorney.
There is a method to determining who will author the majority opinion. Suter explained that in each case, a straw vote is taken following oral argument. Once the votes have been tallied, the case is assigned by the Chief Justice to a particular Justice for preparation of a majority opinion. The assigned Justice then prepares and circulates a draft opinion to the other Justices, seeking their input, which can be incorporated into the final draft. Suter said the Justices are always courteous in their written responses to the drafting Justice, most of which is minor "tweaking" of the majority opinion. Even so, it is not uncommon for a dissenting Justice to engage in a little good-natured "ribbing" of the Justice drafting the majority opinion, which demonstrates the collegiality that exists among the Justices. For instance, in a case involving a due process issue, a dissenting Justice might write something to the effect of: "Dear Ruth [Ginsburg]: I agreed with everything in your draft opinion, with the exception of your interpretation of the Fourteenth Amendment. Therefore, with all due respect, I will be filing a dissenting opinion."
Suter maintained that Supreme Court review is available to anyone, even pro se litigants. He mentioned that the case of Gideon v. Wainwright, which established the right to have counsel appointed for indigent persons in criminal cases, was decided after the Court received a pro se petition from a prisoner. Another recent decision involving federal drug laws was initiated—and won—by a pro se petitioner who was serving a life sentence for a state crime unrelated to his federal offense. Following the issuance of the Court’s opinion on the latter case, the petitioner sent a letter thanking the Clerk’s Office, and stating that his friends, family, and "colleagues" (i.e., fellow prisoners) were all proud of him for winning his case.
Suter concluded his talk with a discussion of cases currently pending before the Court. Tongue planted firmly in cheek, he stated that he keeps close track of all pending cases, with the exception of bankruptcy and ERISA cases, which, he admits, bore him.
A member of the Federal Bar Association, Suter strongly advocates membership in the U.S. Supreme Court Bar, even for those who may never litigate a case before the Court. Bar membership guarantees that a lawyer who visits Washington, D.C. can get a seat at any oral argument conducted at the Court. Without Bar membership, an attorney must wait in line with the general public, and seating is not guaranteed. In addition, Suter told the audience that he will personally guide a tour for any Bar member who wishes to see the Court. He explained that this tour includes a viewing of the real " highest court in the land"—the basketball court on the roof of the Supreme Court building!
Suter’s talk at the swearing-in ceremony provided fascinating insights regarding the inner workings of the U.S. Supreme Court. Along with my fellow attorneys in attendance, I fully enjoyed hearing this insider’s perspective on the nation’s highest Court of law.
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