Dave Moran - Please, please, May it Please the Court

 

“Mr. Moran,” the deep baritone voice rang out. I stood up with my hands shaking violently and walked to the lectern of the Supreme Court of the United States. 

 

Four months earlier, the Court had granted review in a case that I was representing an indigent defendant who had been convicted of a crime greater than he should have been convicted of. I had never been to the US Supreme Court before, so I didn't know what I was in for. And the first thing you do when you're a lawyer and you're going to a new court is you read the court rules. I read the court rules. And one of the first things I noticed, is that a council shall appear, and I quote, “In dark conservative business attire.” 

 

Well, I'm a law professor, and I dress badly. [audience laughter] So, I went to the department store at Briarwood Mall [audience laughter] and I went to the men's department. And after teaching a class at the end of the day and I was wearing pretty much what I'm wearing today, khaki pants, polo shirt, five o'clock shadow, and I said, “I need a dark, conservative business suit.” [audience laughter] And the man looked me over and he said, “Job interview, sir?” [audience laughter] And I said, “No, US Supreme Court argument.” [audience laughter] I'm certain he didn't believe me, [audience laughter] but I got to suit. 

 

Of course, the other part, things you do when you're preparing for US Supreme Court is you do a lot of preparation. So, the case was about the double jeopardy clause of the Fifth Amendment for those lawyers present. I read every case I could to get as ready as I could possible. But the problem is, I had never even seen a US Supreme Court argument. So, in March 2003, a month before my scheduled argument, I flew to Washington and went to watch an argument of another criminal case. And the argument started. 

 

First thing that I noticed was that this is a really small room. Those of you who've been there know this, this is a really small courtroom. And the lawyer is just a few feet under the nose of Chief Justice William Rehnquist. And the argument started, and it was a death penalty case. The lawyer arguing for the inmate was getting into it with Justice Scalia about what the record really showed. It turns out Justice Scalia had this weird habit of he would ask a question, and you would think he was done, and it would be a deep breath and a long pause, and then there'd be more question coming. 

 

The lawyer was very eager, and he kept starting to answer the questions and then Justice Scalia would ask some more. This happened two or three times, and suddenly Chief Justice Rehnquist leaned forward and said, “You will let Justice Scalia finish asking his questions. There will not be two people talking at the same time.” Now, the lawyer at the podium didn't seem fazed at all. He just went on with his argument after a quick apology. But if cameras were allowed in the courtroom, you would have a video of all of the blood draining out of me. [audience laughter] 

 

So, I came back home and I told people in Michigan about this terrifying experience. Everybody had a Chief Justice Rehnquist story, that how he loved to chew out attorneys, if an attorney sometimes got the name wrong. The Justices don't have nameplates on the bench. And some attorneys mistake the name and he would say, “That was Justice Souter, not Justice Kennedy.” Or, the worst thing you could do would be to answer a question and start the answer with, “Well, Judge O'Connor,” “It's Justice O'Connor.” 

 

So, I was terrified that I was going to go there and be humiliated in front of my friends and family, all of whom had been invited to go to Washington for me. But I prepared as best I could. I wore my suit, made sure it fit and we flew to Washington in April 2004. Now, the night before the argument, we all agreed to meet the friends and family and other lawyers on the team. We met at a Mexican restaurant just a few blocks from the Supreme Court. I ordered Enchiladas Suizas. They were delicious. I thought, margaritas might help me sleep. So, I had one margarita and then I had another margarita and I thought, three margaritas, not a good idea, so I had two margaritas and I got a good night's sleep. 

 

I got up the next morning, and we walked to the court and waited and waited until the case was called, “Mr. Moran.” I walked up there, terrified that I was going to be humiliated, handshaking. And I said, “Mr. Chief justice,” and it may had pleased the Court, and started the argument. And quickly the questions started coming and the tension melted away, because as a lawyer, I'm very happy to answer questions. It's easier than just making a speech like this. 

 

Justice Scalia asked a lot of questions, and I counted to myself, thousand one, thousand two, [audience laughter] thousand three. I waited until I was sure he was done, and I began to answer. And the questions came, and I thought it went pretty well. It’s 30 minutes of argument in front of that Court, and the case was over and I walked out the doors, down the magnificent marble steps and thought that was pretty fun. [audience laughter] I've been back five times since then, and I've won some and I've lost some, but every single argument has been fun. I haven't been chewed out by any of the Justices. [audience laughter] I must say that Chief Justice Roberts runs a much nicer, more friendly court [audience laughter] than Chief Justice Rehnquist. But every time I walk out of there, walk out those great doors and down those magnificent marble steps, I think to myself, damn, that was fun.