[MUSIC PLAYING]
SPEAKER 1: I want to welcome you to the final round of the Ames
Moot Court Competition.
SPEAKER 2: All rise.
SPEAKER 3: Presiding tonight as Chief Justice is the Honorable
Ruth Bader Ginsburg.
SPEAKER 4: Ruth Bader Ginsburg.
RUTH BADER GINSBURG: Be seated, please.
THOMAS S. LUE: Her presence was just tremendous.
It filled the courtroom-- the Ames courtroom.
You can palpably sense this kind of overwhelming respect
and admiration that we all had for her
when she walked into the courtroom.
NIKOLAS BOWIE: I had never argued before a real court
before.
And one of my first arguments featured,
as the chief justice, Ruth Bader Ginsburg,
who's a personal hero.
RUTH BADER GINSBURG: Please proceed.
I, Ruth Bader Ginsburg do solemnly swear--
MELISSA R. HART: She was already a hero to me
because she was only the second woman justice on the Court.
And that, of course, was an inspiration for me.
JILLIAN SHERIDAN STONECIPHER: There's not
a woman in the legal profession who
can say that Justice Ginsburg didn't
have an impact on her career.
Just the legal precedent that she set alone
and her work as an advocate changed
all of our lives and our opportunity.
SPEAKER 5: Oyez!
Oyez!
The Honorable Supreme Court of the United States of America
is now in session.
FREDERICK D. NELSON: Of course, it was a tremendous privilege
to be able to argue in front of such a distinguished panel.
You had Justice Sandra Day O'Connor,
and you had, then Judge, Ruth Bader Ginsburg.
RUTH BADER GINSBURG: Didn't such a hearing occur?
The district court held a hearing
limited to the voluntariness of appellant's consent
to transfer.
FREDERICK D. NELSON: That's correct, but the district--
RUTH BADER GINSBURG: That is precisely
the issue on which the district court did hold a hearing.
FREDERICK D. NELSON: But as--
It was vigorous questioning from all of the panel members,
but especially from Judge Ginsburg, which
was no surprise.
We were looking--
RUTH BADER GINSBURG: But isn't it true, as a general matter,
we don't enforce foreign penal statutes or judgments?
FREDERICK D. NELSON: No, it depends, I
suppose, on your meaning of the word "enforce"--
RUTH BADER GINSBURG: We don't implement them.
We don't give them effect.
Isn't there a general rule, though,
that we don't enforce foreign country penal judgment?
FREDERICK D. NELSON: Well, generally, there would be no--
RUTH BADER GINSBURG: For example,
collect a penal fine here?
FREDERICK D. NELSON: We do enforce them
in extradition contexts, in terms
of sending the people back.
RUTH BADER GINSBURG: But there is no general rule
that we enforce them.
If we must find a general rule, it probably runs the other way.
FREDERICK D. NELSON: Well, I think, generally, there's
no reason for us to enforce them because the United States is
generally concerned with whether or not
its laws have been violated.
MELISSA R. HART: Her questioning at Ames
was very similar to her questioning
in real oral arguments.
She's tenacious.
She was not trying to make her own point,
she was trying to get an answer to her question.
And so she would keep on asking.
FREDERICK D. NELSON: I came away more convinced
than ever of the power of this woman's intellect.
RUTH BADER GINSBURG: We'll now hear from respondents.
And Mr. Campbell will speak first.
DAVID A. CAMPBELL: Chief Justice Ginsberg,
and may it please the Court.
My name is David Campbell, and with co-counsel Jonathan Malis,
I represent the Rosebud Sioux tribe.
We hoped and thought it would be Justice Ginsburg because she
was the most recent appointee.
And often the most recent appointee
will serve as the next justice.
So we were really excited when we heard that it
would be Justice Ginsburg.
For the same reasons, Your Honor,
the sovereign immunity of the tribe
precludes that the federal court subject matter
jurisdiction in this case.
RUTH BADER GINSBURG: That was a puzzling argument to me,
that The United States itself would not be immune,
I take it, from an action seeking injunctive relief.
Would it?
DAVID A. CAMPBELL: Your Honor, if that cause of action
were brought against a government official,
it would not be immune.
Yes, that's the case.
RUTH BADER GINSBURG: The United States.
DAVID A. CAMPBELL: If the suit were brought against the United
States itself-- yes, Your Honor.
Unless Congress has--
RUTH BADER GINSBURG: Has sovereign
immunity from claims for injunctive relief--
for non-monetary relief?
There's no monetary relief sought here.
Is that right?
DAVID A. CAMPBELL: That's correct, Your Honor.
Yes, if the action is not brought against an official
itself, then--
RUTH BADER GINSBURG: What if I tell you--
and I'm reasonably confident of this--
that the United States does not have sovereign immunity
from claims for equitable relief--
for non-monetary relief, why should the tribe
have greater immunity than the United States does itself?
DAVID A. CAMPBELL: Your Honor, that
was this court's explicit holding in Santa Clara Pueblo--
that a tribe-- even in an action seeking injunctive,
or injunctive or declaratory relief--
has sovereign immunity from that underlying action,
if the action is brought against the tribe itself.
JONATHAN M. MALIS: It felt very real at the time
and Justice Ginsburg was a sharp questioner.
She took the competition seriously.
I think that added to the excitement of the competition.
RUTH BADER GINSBURG: If you're wrong about the exclusivity
of this forum, do you win or do you lose?
JONATHAN M. MALIS: Your Honor, we--
RUTH BADER GINSBURG: If this is indeed a transitory claim.
JONATHAN M. MALIS: We win anyway, Your Honor,
because the tribe has a strong interest in adjudicating
this case in order to fulfill its interest in preserving
self-government and its own sovereignty.
RUTH BADER GINSBURG: We are unanimous that there
are two best oralists.
And they are David Campbell and Jonathan Malis.
[APPLAUSE]
DAVID A. CAMPBELL: When she passed--
and my wife and I-- someone had circulated
a video of the event.
We hadn't seen it for so long, but we decided
to share it with our kids.
We have three kids, including two daughters.
My daughters, in particular, were so excited
because they view Justice Ginsburg as such a role model.
My esteem was raised in their eyes only because
of the association with Justice Ginsburg.
So it just reminded me and reinforced
what an incredible impact she's had
on so many people, and especially young women,
including in my family.
RUTH BADER GINSBURG: We will now hear from Mr. Bowie.
NIKOLAS BOWIE: The advice I received
from people who had argued before the Supreme Court was
that when Justice Ginsburg asks a question,
it's going to be very incisive.
But also, she's not always clear when her question is finished.
When she started to ask a question,
you'd get really tense because it's
like what is she going to say?
But then she would speak and you would not
know whether she was done.
RUTH BADER GINSBURG: So you're saying that the Ames Circuit
Court was wrong in that regard because that is what they
said in their opinion, right?
NIKOLAS BOWIE: Sorry, that the denial--
RUTH BADER GINSBURG: That the majority of circuits hold--
in the asylum context--
that denial of right to counsel of choice
does not require prejudice.
NIKOLAS BOWIE: That that was an incorrect statement
in the court below, Your Honor, yes.
When I was in law school, Justice Ginsburg
was the only member of the Court who had really made her career
as a public interest attorney.
People who have made it onto the Court
have careers that members of Congress and the president
think are worthy of recognition.
And so for the Court not to have someone with her background
of having looked at the law and looked at constitutional law,
and said-- that's not right, that's unjust,
I'm going to change that--
I think would have sent a really bad message
to people learning the law.
Because it's very easy to go through law school
and learn constitutional law or learn
all of the other areas of law and conclude--
this is how it is, and this is how
it should be by implication.
And I think Justice Ginsburg's entire career
suggests that how it should be may look
very different from how it is.
RUTH BADER GINSBURG: I can't avoid
saying how deeply touched I was by the name adopted
by counsel for the petitioner.
I know Martin D. Ginsburg would have
been so pleased to see that.
JILLIAN SHERIDAN STONECIPHER: We decided
to name our team the Martin D. Ginsburg Team.
We did this before the semifinals,
and we were a little embarrassed when we found out
she was going to be the chief justice because we
knew it might look like we were sucking up.
He was someone who inspired us because of the way
that he was a complete person.
And someone who was ahead of his time
and enabled Justice Ginsburg to make the massive contribution
that she did.
RUTH BADER GINSBURG: We are convened
to hear the case of Amy Annis, et al,
against the State of Ames.
Mr. Lue, proceed whenever you're ready.
THOMAS S. LUE: Thank you.
The experience is seared into my memory.
This was especially the case because my team
was assigned to the side of defending
a Defense of Marriage Act.
I knew it was going to be tough.
RUTH BADER GINSBURG: You said alienage
is a suspect classification--
THOMAS S. LUE: That is correct, Your Honor.
RUTH BADER GINSBURG: And I'm asking you, well,
what cases you based that on?
THOMAS S. LUE: Your Honor, I don't have the case
in front of me for alienage.
We got into a discussion about the Equal Protection Clause,
and suspect classes, and semi-suspect classes.
And the Justice was just grilling me.
RUTH BADER GINSBURG: And then you
gave us for a semi-suspect sex and out-of-wedlock birth.
Is there anything else?
But I was just wondering when I got to that point
in your brief, why you didn't say "i.e."
instead of "such as," implying there were many more.
THOMAS S. LUE: Your Honor, that was probably a decision that we
now know better not to do.
[LAUGHTER]
Suffice it to say this was not a question we
had mooted beforehand, despite the hours of mooting.
But looking back on that now, it's
clear that it wasn't just a point about being
precise in your briefs.
What she was getting at with this comment
around "e.g." and "i.e." is that these classifications really
are carefully crafted, carefully targeted.
And they often reflect years of groundwork
by advocates that have fought tooth and nail
to get the right cases in front of the Court at the right time
and in the right circumstances.
And that, of course, in many ways,
was the story of the arc of her own career.
And I think we're all indebted to Justice
Ginsburg for her pioneering work in equal protection.
MELISSA R. HART: She also inspires me.
As a justice now, I really take her philosophy
to dissent really seriously.
The dissent is speaking to tomorrow.
So you don't write a dissent just to say,
well, this is what I think, it's a little bit different.
You write a dissent because you think that the law could
someday be different.
JILLIAN SHERIDAN STONECIPHER: After the competition,
we had a little reception.
And when I got to meet Justice Ginsburg,
I said, thank you so much for everything
you've done for women, both as an advocate and a Justice.
And her response was, I was in the right place
at the right time, which has to be
one of the few things she said that is just completely wrong.
Obviously, Justice Ginsburg made the time and place
where she was the time and place to change the world.
RUTH BADER GINSBURG: I have a slightly different experience
with the Ames competition.
This is the third time I have participated
in such a competition.
And because I read so many briefs in my everyday job,
I had sworn off moot courts.
I said, no more.
But your wonderful new dean called me,
and in her inimitable way, without really twisting my arm,
asked me to do this.
And so I am here because of Dean Elena Kagan.
And I must say, it was a treat.
I thoroughly enjoyed it.
And now the hour is late.
So the court looks forward to meeting all the participants
shortly.
But the court is adjourned.
[GAVEL]
[APPLAUSE]