What's It Like To Argue Before The Supreme Court — For The 30th Time?
Paul Weiss partner Kannon Shanmugam, a veteran high-court advocate, discusses arguing telephonically before SCOTUS in the midst of the pandemic.
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I’m often asked whether I miss the practice of law. Generally my answer is no; I love my work of writing about law and the legal profession.
But as a former appellate attorney, if I could return to the world of practice for one experience, it would be to argue a case before the U.S. Supreme Court. Having even just one argument before SCOTUS is the dream of many a lawyer.
For Kannon Shanmugam, it’s just another day in the office.
Okay, that’s an exaggeration; a high-court argument is still a noteworthy occasion, even for Shanmugam. But it’s not rare. It’s something that happens, on average, about twice a year for the veteran appellate advocate.
Yesterday Shanmugam argued before the Supreme Court in Henry Schein Inc. v. Archer and White Sales Inc., which represented his 30th appearance before SCOTUS. Yesterday was also, in a nice coincidence, the 16th anniversary of his first Supreme Court argument, in Muehler v. Mena.
I connected with Shanmugam by Zoom yesterday afternoon, a few hours after his argument. He took the call from his office at Paul Weiss, sitting at the same desk where he had argued before the Court that morning.
(And yes, in case you’re wondering, Shanmugam handled the argument sitting down, using a headset. Supreme Court advocacy — it’s just like telemarketing!)
I began by asking him: how did it feel to be making your 30th argument?
“I didn’t actually realize it was going to be my 30th until one of my colleagues pointed it out to me a couple of weeks ago,” he said. “I try not to pay much attention to the numbers. I hope to be remembered for the quality of my arguments rather than the quantity.”
And 30 arguments in, appearing before the Court hasn’t lost its magic for him. As Shanmugam told me, “It is every bit as special now as it was the first time I did it.”
Does he get nervous after hearing the “oyez, oyez” that signifies the start of the session?
“I wouldn’t say that I get nervous, exactly, but the adrenalin is definitely pumping when the Chief Justice calls the case.”
For 15 of the years that he’s been arguing before the Supreme Court, a tradition-bound institution, the procedure, pomp and circumstance have remained the same. But this year has brought dramatic change.
For the safety of the justices and lawyers in the midst of the coronavirus pandemic, the Court has been conducting oral arguments by telephone since May. That means no more trekking down to One First Street, entering the grand and glorious courtroom, and rising to one’s feet as the justices enter. I asked Shanmugam for his thoughts on the new process.
“We’re all new to this format, and it feels very different,” he said. “When the Court debuted this format, I said that it wasn’t as good as arguing in person, but better than nothing at all — and I’d stick to that view.”
“The Court is handling this as well as humanly possible,” he continued. “The clerk’s office is fantastic, giving the lawyers very specific instructions about the process. It’s very well organized, and it runs remarkably smoothly.”
To prevent chaos in a situation where the justices aren’t in the same room and can’t see one another — reflecting the Court’s aversion to cameras, the arguments are purely telephonic, with no video — the Court instituted a system in which the justices take turns asking questions, in order of seniority, with Chief Justice Roberts serving as moderator.
Back in May, I wrote that I liked the turn-taking approach, arguing that it gives every justice — not just the most aggressive or noisiest ones — the opportunity to ask questions. (It has been nice to have Justice Thomas participating, for example.) I also praised how the new format lets the advocates see what each member of the Court is thinking, so they can try to address each justice’s concerns — and perhaps garner the justice’s vote.
What does Shanmugam think of the system of seriatim questioning? He’s nothing if not diplomatic, but I got the sense that he’s not a huge fan.
“The pace of it feels very different,” he observed. “It’s not nearly as rapid fire. It also feels like nine three-minute arguments, as opposed to one argument.”
“This makes it harder for the Court to pin down the advocates and get to the nub of the case,” he continued. “In the traditional format, the justices’ questions would build on each other. Now, one justice might have one thing on his mind and focus his questions on that, but then the next justice might have something totally different on her mind, devoting her questioning to those topics.”
The new format presents challenges for advocates as well.
“In an in-person argument, you can see the Court’s decisionmaking take shape — that’s a lot harder now,” Shanmugam said. “A challenge of telephonic argument for the advocate is that you’re arguing into a void. You can’t tell whether your points are landing. You can’t see the justices talking to each other. You’re not getting any visual feedback.”
“These are really just observations, not pros and cons,” he added. “I think this format is the best the Court can do under the circumstances. It would be very hard to have telephonic arguments without some structure. You can’t have nine people who can’t see each other all trying to talk at once.”
Since the justices can’t see the advocates during telephonic arguments, I asked Shanmugam: what did you wear? Did you take advantage of the situation and make yourself comfortable by wearing, say, head-to-toe Lululemon (yes, they make menswear too)?
Alas, no. A stickler for tradition, Shanmugam wore a dark suit and the same silver necktie he has worn to every one of his 30 arguments before the Court, as well as his wedding. (This shouldn’t surprise anyone who knows him; as fellow Supreme Court advocate John P. Elwood once tweeted, Shanmugam probably wears a necktie in his sleep.)
At an in-person argument, Shanmugam would be sitting at counsel table with a few colleagues, who could pass him notes with their ideas and suggestions. Yesterday morning, he was the only person in his office when arguing. But he was in a messaging group with the two associates who worked with him on the case, William Marks and Stacie Fahsel, and they could pass him virtual notes.
(An interesting aside: neither Marks nor Fahsel clerked for the Supreme Court, and Shanmugam, despite having clerked for the Court himself, does not believe a SCOTUS clerkship is a prerequisite to success as a Supreme Court and appellate advocate. “Of course you have to be smart, a hard worker, and a good writer and oral advocate,” he said. “But it isn’t the case that only the 36 people who clerk at the Court each year can do that. Many of the most talented associates I’ve worked with over the course of my career didn’t clerk for the Court.”)
So Supreme Court oral argument has changed quite a bit from pre- to post-pandemic. What about over the longer haul? How has argument changed during the 16 years that Shanmugam has been appearing before the Court?
He began by noting that the Court is almost totally different in terms of composition. Over the past 16 years, he has argued in front of a total of 15 different justices. Justice Thomas and Justice Breyer are the only two justices who were on the Court in 2004, when Shanmugam made his high court debut, and who are still on the Court today.
Despite the personnel changes, many things remain the same. The justices are still active and incisive questioners — and, if anything, they are even more active today than in 2004. The standard of advocacy remains exceptionally high — and, if anything, it’s even higher today than in 2004.
One development driving that: the rise of the specialized Supreme Court bar, an elite group of expert advocates who appear regularly before SCOTUS. They’re incredibly well-credentialed and well-connected, they’re intimately familiar with the Court and its workings, they know how to persuade the justices, and they don’t make rookie mistakes. (For a superb, in-depth look at the Supreme Court bar, check out The Echo Chamber, a special report by Joan Biskupic, Janet Roberts, and John Shiffman of Reuters, released back in 2014.)
“One can debate the pros and cons of a more specialized Supreme Court bar,” Shanmugam said, “but these days, it’s rare to have a first-time advocate appearing before the Court.” He noted that we did have a first-time advocate yesterday — but Bryan Garner, who made his SCOTUS debut in the other case argued yesterday, Facebook Inc. v. Duguid, is no ordinary bear.
For a long time, the Supreme Court bar was stodgy and stagnant in terms of lateral movement. But in 2019, Shanmugam made waves by moving from Williams & Connolly, whose appellate and Supreme Court practice he had launched, to Paul Weiss, where he took on the dual roles of chair of the Supreme Court and appellate practice and managing partner of the D.C. office.
This gave rise to a game of musical chairs within the Supreme Court bar, with other SCOTUS superstars making moves of their own. Lisa Blatt left Arnold & Porter to head the appellate practice at Williams & Connolly, and John Elwood left Vinson & Elkins to head the appellate practice of Arnold & Porter (where he was soon joined by Allon Kedem, coming out of the Office of the Solicitor General).
I asked Shanmugam about how the move from Williams & Connolly, a legendary litigation powerhouse, to Paul Weiss, an elite full-service firm, has changed his practice.
“Paul Weiss is a much bigger firm, and a much bigger — yes, I hate this word, but I’ll use it — platform,” he said. “Paul Weiss is really unusual in that it has a top-flight litigation practice and top-flight corporate practice, and this does create opportunities. The clients that come to this firm by virtue of its corporate practice are a who’s who of the corporate world — and it’s wonderful to have access to such a remarkable client base, which has allowed for a lot of cross-referral work.”
The value of a world-class M&A practice like that of Paul Weiss is obvious, given the gigantic fees associated with billion-dollar deals. I teasingly asked Shanmugam: what do you bring to the table? More specifically, I asked him to comment on the traditional knock on appellate work: it’s prestigious but not that profitable, since it’s not as “leveraged” as other practice areas (i.e., you can’t throw a ton of associates on projects and have them bill until the cows come home, since an appellate team might be just a partner and an associate, or a partner and two associates).
“Appellate practices have tremendous value, and the demand for appellate practitioners reflects that,” Shanmugam said, taking note not just of Lisa Blatt’s and John Elwood’s moves, but also of how Skadden Arps recently hired Shay Dvoretzky away from Jones Day. “When a matter goes up on appeal, it offers an increasingly rare opportunity for a firm to get access to new clients, because that’s often a point at which clients are looking for new lawyers.”
“Appellate and Supreme Court work is a very visible area of practice,” he continued. “It draws a lot of attention to a firm’s broader litigation practice, and to the firm more generally.”
“It’s also important for recruiting. Even if they don’t want to be appellate practitioners, law students are often drawn to firms that are prominent because of their Supreme Court and appellate practices. So appellate practices have enormous value to firms, even if they’re not as ‘leveraged’ in the narrow sense of the term.”
Fair enough, counselor. And given the gossip about the prodigious pay package that Paul Weiss used to woo Shanmugam (which he declined to comment on), his points are well taken. Despite his firm’s industry-leading commitment to pro bono work, longtime chair Brad Karp isn’t running a charity over at Paul Weiss; he presumably hired Shanmugam because he thought it was good business.
And it looks like Paul Weiss will be able to enjoy the benefit of Shanmugam’s services for the foreseeable future. As one might expect from a longtime member of the Federalist Society and former law clerk to the late Justice Antonin Scalia, Shanmugam hails from the right side of the aisle, and he was talked about as a possible Solicitor General or judicial nominee in the Trump Administration. But in light of Joe Biden’s recent win in the presidential election, Shanmugam probably isn’t going anywhere anytime soon. And he’s okay with that.
“I’m really enjoying what I’m doing now,” he said. “In many ways, this was a career-defining decision for me. And I’m really excited about leading the D.C. office of Paul Weiss, at least as excited about it as about growing my own practice. We have a tremendous opportunity to build on our position as a major player in the market.”
Since his arrival, the D.C. office has hired such marquee names as Jeannie Rhee, who served on special counsel Robert Mueller’s Russia investigation, and a trio of prominent partners from Boies Schiller Flexner — Karen Dunn, Bill Isaacson, and Jessica Phillips. With almost 100 lawyers, the D.C. office of Paul Weiss is now the firm’s second largest, with around 10 percent of the firm’s total headcount and 20 percent of the firm’s litigators.
I asked Shanmugam how many hours he spends a year on firm management. He declined to give a number — just as he also declined to tell me how many hours he bills in a year, or what his current billable rate is — but he noted that the time he spends on management has increased dramatically since the pandemic hit.
“I never would have foreseen this challenge when I took on the managing partner role last year,” he said. “Firm leadership and culture are so important during this time, when we are all working remotely. Brad [Karp] has been an incredible leader during this period — an extraordinary law firm leader, the best in the country in my opinion.”
Under Karp’s leadership, Paul Weiss has focused first and foremost on the health and safety of its employees. The firm is strongly encouraging everyone to work remotely, and it has announced no date for a return to requiring people to work in the office, instead taking its cues from public health experts.
At the same time, firm leaders have been doing what they can to maintain connectedness and camaraderie among lawyers and staff during this time. Traditions like weekly lunches and Friday happy hours continue, albeit virtually, and Shanmugam has also been having one-on-one conversations with each of the office’s associates to see how they are doing.
“I’m really proud of our office, both the lawyers and the operations team, for their incredible ability to keep our work going in this challenging time,” he said. “It hasn’t been easy with all the personal challenges people have been facing, like caring for relatives with Covid or dealing with kids not being in school. It’s a testament to this firm and the community we’ve built here that we have been able to continue in the way that we have.”
And not all the changes brought about by the pandemic have been bad.
“It has been nice not to travel as much as I used to,” Shanmugam said. “Much as I enjoy going to new places, it can be a real burden, especially when things are very busy.”
“You can now get hired for major matters via Zoom, which is mind-boggling. In the past, we would visit prospective clients, meet them in person, and make the pitch. Meeting them virtually is a huge time saver.”
“And I’ve gotten to spend more time with our kids, who are 12, 11, and 3. That’s been a weird bonus of what has been a really challenging time.”
As our conversation concluded, I congratulated Shanmugam on his 30th Supreme Court argument and asked him if he had any exciting plans to celebrate.
“I’m going to go home and watch my Kansas Jayhawks. And drink a beer.”
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