Today, we learned that the U.S. Supreme Court had ruled to uphold Arizona’s legal sanctions against employers in the immigration context. Yesterday, a former Arizona Solicitor General gave insight into that case and into the broader topic of arguing your case at the nation’s highest court.
Mary O’Grady spoke to a luncheon group assembled in downtown Phoenix as part of the monthly gathering of the Arizona Women Lawyers Association. Now a partner at Osborn Maledon, O’Grady described the heady experience of preparing a case and advocating it to the Justices. Her Wednesday presentation demonstrated the personal and professional challenges that a lawyer faces in that chamber.
Years ago, the first case that she reviewed as a new Solicitor General was a challenge to the state’s law on same-sex marriage. That special action in the Court of Appeals was a snapshot of the approach her office took to matters, controversial or not.
“Policy issues weren’t our deal,” O’Grady said. “And I never asked assistant AGs ‘Who feels strongly about this case?’ Our job is a legal one.”
That’s not to say that she never heard from AGs who felt they could not advocate a position due to moral or philosophical beliefs. Those concerns would be aired and usually granted.
O’Grady laughed as she described the SG’s Office as “a public defender for laws.”
“Our job is to give our laws the best defense possible, and to help the judges do the best possible job.”
She acknowledged that parties sometimes get very nervous at the prospect of having the Attorney General’s Office (in which the SG is housed) handle “their case.” Those parties sometimes seek to intervene, primarily to tell the court that “they can’t trust the Attorney General’s Office.”
But that sometimes has served cases well, she said. Positions like that may lead the court to see the state’s position as more middle of the road and not a “zealot.” And hearing from those passionate advocates on both sides helps the AG see the matter clearly, “without blind spots.”
O’Grady marched the audience through a case’s progress up through the courts, at each step describing the challenges the SG faces.
Politics and media coverage are most intense at the district court level. There, she and others in her office developed “an art form” of exiting the courthouse with minimal contact with media, protestors and other possible interrogators.
By the time your case is headed to the U.S. Supreme Court, an advocate can anticipate a unique experience: the polite telephone call from NPR’s Nina Totenberg.
“That conversation is really almost a moot court in itself,” O’Grady said.
At all levels of the case, though, one thing is constant: Even in a packed and contentious courtroom, once the case starts, the lawyers on both sides just go to work, “and the noise stops, as it should be.”
O’Grady described the progress of the employer-sanctions law challenge in more detail.
As it prepares its Supreme Court case, the state always hopes that the United States Solicitor General will stake out a position that aligns with the state. In employer-sanctions, though, the USSG took no position. Finally, the U.S. Supreme Court said it wanted to hear from the USSG on the question.
That led to an appearance before the USSG, then Elena Kagan, and her chief deputy, Neal Katyal (now the Interim SG). One by one, the Arizona advocates and any others that Kagan’s office invited filed into the USSG’s conference room and presented their positions. Months later, they learned that the USSG would not support the Arizona position (though the Supreme Court did support it today).
Among that substantive step in the process and others—like a multitude of moot courts in Arizona and in Washington—O’Grady described some of the more mundane obstacles an advocate faces.
One of those obstacles is “managing reserve seats” for the Supreme Court argument. Keeping a wide variety of family members happy with a guaranteed seat is hard enough, she said. But it is unnerving to hear on the eve of what may be your career’s biggest argument that “Russell Pearce doesn’t have a seat, and he needs one.” Shuffling and reorganizing had to ensue.
“As I prepared for the argument,” O’Grady mused, “I had a bad thought. I knew Russell Pearce would be in the front row, and I couldn’t help but think about Kanye West yanking the microphone away from Taylor Swift.” As it turned out, all went well on that score.
Other challenges included having a colleague reassure her by saying, “Don’t worry, Mary, everyone I talk to believes we’ll lose 8-0!” (They won, 5-3.)
She also had to beseech her politically opinionated sister to not speak to the assembled luminaries about controversial topics—or anything—as she sat feet away from them in the Court.
Ultimately, O’Grady was peppered with 40 questions in her 30 minutes. And then it was done.
She finished her talk to the AWLA with two personal observations, which resonated with the woman lawyers in the room (aside from Court of Appeals Judge Donn Kessler and this correspondent, no other men were present).
O’Grady pointed out that moot court required her to spend about a week in Washington DC in the time leading up to the argument. “And as a working mom, I liked going to DC and checking into a hotel alone for a week!”
Finally, she smiled as she told the group about her daughter’s reaction to seeing her mom argue before the Justices. As they left the Court, the young girl’s sole comment was “Where’s lunch?” But her subsequent Facebook post was far more evocative:
“Just left court, Mom did great. She showed Justice Breyer who’s boss.”
More information on the Arizona Women Lawyers Association is here. And, no, you don’t have to be a woman to join.