- All rise.
[MUSIC PLAYING]
REENA RAGGI: There's something very special about Ames,
and the atmosphere in the courtroom is always electric.
- Oyez, oyez, oyez.
The United States Supreme Court is now in session.
KATHLEEN SULLIVAN: It's something
that brings together the entire community, the Harvard Law
School equivalent of a prize fight or the big game.
- All those having business before the Supreme Court
of the United States are admonished to draw
near and give their attention.
TEJINDER SINGH: It's the biggest audience
for a courtroom argument ever.
It's bigger than the Supreme Court courtroom.
- God save the United States and this honorable court.
GUHAN SUBRAMANIAN: The judges take it incredibly seriously.
You would never know this was just a fake argument.
- We'll hear argument this evening in Reed Corporation
and Norport Industries.
- The United States EX Rel.
Dale versus the Tech Corporation.
ANTONIN SCALIA: Duke versus United States.
Counsel ready?
[MUSIC PLAYING]
SHEILA KUEHL: I mean, the right to privacy
doesn't have the same kind of absolute protection
as the right to religious belief.
And I hope that you'll separate that I'm
talking here about belief only and not
about religious conduct.
THURGOOD MARSHALL: When you get to putting degrees on the First
Amendment, you're gonna get in more trouble
than you will ever get out of.
SHEILA KUEHL: Well, your Honor, it
seems that this court, with all due respect, has--
THURGOOD MARSHALL: Is in that problem.
SHEILA KUEHL: --is in that problem.
[LAUGHTER]
[APPLAUSE]
[MUSIC PLAYING]
KATHLEEN SULLIVAN: It's no surprise
that the Ames Moot Court Competition has
been a core tradition at the law school for 100 years
even through changes in technology.
REENA RAGGI: It emulates the work of the finest
appellate advocates.
You have difficult problems, and you're
expected to present them at a very high level.
DEVAL PATRICK: I used to say about politics when I was still
active that it's a strange blend of substance and performance
art.
The Ames Moot Court Competition is also that blend,
but substance is still king.
ANTHONY KENNEDY: I'm not sure what you're saying.
You say it's not a legal term, but you used it in a brief,
and you want us to use it in our opinion.
You want us to say there's a presumption in favor
of jurisdiction, for which I think is a rather novel--
to use a polite word--
a rather novel submission.
ERIKA HAROLD: Presumption is defined
a lot of different ways.
Sometimes it talks about switching the burden of proof
to the defendant.
We did not intend to mean it in that way.
We intended it in the way in which this court used it
in Wheat versus the United States
when they talked about the balancing and the weight that
needed to be placed upon certain interests.
KATHLEEN SULLIVAN: If I had to analogize it to music,
I would say that oral advocacy at an event like the Ames Moot
Court Competition is like jazz.
It looks effortlessly improvised when you perform,
but hours and hours of preparation has gone into it.
[JAZZ MUSIC]
GUHAN SUBRAMANIAN: We would watch videos of prior Ames
oralists, and we would stop the video
and discuss among ourselves what was going well,
what was not going well.
KATHLEEN SULLIVAN: We went out and practiced,
swapping roles as judges, just throwing out questions
as a group.
Keep honing them and trying to make the answers simpler
and simpler until they sang.
ELIZABETH BARCHAS PRELOGAR: The case
that we argued, I think like most of the Ames problems,
lent itself to tricky hypotheticals
and testing the implications of the position.
And so I remember our team just doing practice moot
after practice moot, and having to iron out
how we were going to address the really tricky questions that we
expected would come up at oral argument and did.
WILLIAM BRENNAN: Well, tell me, Mr. Thomas,
suppose Congress were to enact a statute saying
that, hereafter, grants for the building of roads in any state
shall be withheld unless the state enacts
a mandatory law requiring the use of seat belts.
Would you say that went too far?
ROBERT THOMAS: Your Honor, the only fair answer
to that question is it depends on how Congress--
WILLIAM BRENNAN: I don't ask for a fair answer.
[LAUGHTER]
ROBERT THOMAS: Well, I'm going to give you one, your Honor.
[LAUGHTER]
TEJINDER SINGH: It's a long night.
So first, you sit down to this dinner, you know,
and you sit through this sort of long discussion
about what's going to happen.
But if you're getting ready to stand up and argue,
you don't care about any of that.
You're like, stop this.
End this.
Stop putting this, you know, chicken in front of me.
I want to go and do the thing I've
been preparing to do for the last-- you know,
no, I don't want dessert.
Like, let's go.
Come on.
ELENA KAGAN: You use disability as a tiebreaker,
isn't that right?
KAVYA NAINI: Vita does, your Honor, yes.
ELENA KAGAN: Yes.
And why is that?
If you are right, that seems just as inappropriate.
KAVYA NAINI: Under Vita's specific policy, your Honor,
which is separate from the overall run of cases,
both employees were equally entitled to the position.
ELENA KAGAN: Well, then I would think
that the employees would expect that you would flip a coin.
KATHLEEN SULLIVAN: The key to a good oral argument
is the ability to improvise, to adapt,
to answer whatever question comes your way in whatever
order it comes your way.
DEVAL PATRICK: The judges really put us to the test.
GUHAN SUBRAMANIAN: So I get up, and I begin.
And I say, may it please the court,
and I don't get a single other word
out when the judge interrupts me and asks this very
tricky procedural question.
- One thing that has puzzled my colleagues and me is,
as near as we can tell, you appealed from the grant
of summary judgment against your client on the promissory
estoppel account, and there was no cross-appeal that we see
anywhere on the other counts.
So why is the issue of the Americans for Disabilities
Act even before us?
- Your Honor, my understanding is
that's an error in the record.
That there was actually a cross-appeal on that count.
- All right.
AMANDA MUNDELL: Nothing quite prepares you
for the full stream of questions from a bench that
is very interested in learning more about your brief.
Balancing Papaya's burdens against the government's
interests weighs in favor of the government.
DAVID BARRON: How are we supposed to think
about what an undue burden is?
So the statute tells us that if it's
voluminous records that are being requested,
that's too burdensome.
Right?
WILLIAM REHNQUIST: How much of the case
takes up the relation of the military suppliers
to the government?
Certainly, your claims are basically against the suppliers
themselves, are they not?
LEWIS POWELL: How could our system
function if the Congress couldn't
delegate substantial authority to independent commissions?
STEPHEN BREYER: Isn't that a pretty good reason
that we should abstain?
DAVID SOUTER: I want to know not what this court has said,
but what you're going to say.
I want an answer to my question.
WARREN BURGER: Is there anything in the Constitution
that compels this municipality to maintain a fire department?
JOHN PAUL STEVENS: So what should we do?
Should we make an independent review of that evidence?
- I do not believe so, your Honor.
JOHN PAUL STEVENS: Then why are we talking about it?
AMALYA KEARSE: Should the Court try
to fine-tune a protective order to give
different degrees of protection to the different categories?
POTTER STEWART: Do you really think,
in view of the very specific legislative history
of the Clinton Amendment, the court could responsibly
do what you submit?
- The court could certainly read the opinion.
POTTER STEWART: Of course, with five votes, we can do anything,
I suppose.
[LAUGHTER]
Or in this case, two.
RUTH BADER GINSBURG: Isn't that part
of the law of the receiving state,
that there is that possibility of unconditional release?
Or don't you know?
- Well, I really don't know.
Again, that is a question that's more in Mr. Nelson's bailiwick.
And seeing that my time is up, I think
perhaps I should refer to him.
[LAUGHTER]
ELIZABETH BARCHAS PRELOGAR: There
was a moment in the oral argument where
I used the word comparator.
Your Honor, respondent has already
alleged that a comparator exists in this case.
And that's the only form of pretext she alleges.
But the--
- What exists?
ELIZABETH BARCHAS PRELOGAR: That a comparator,
that a similarly situated person was treated differently.
ANTONIN SCALIA: A comparator.
I never saw that word.
Is that a word?
C-O-M-P-A-R-A-T-O-R. Where did you get that?
ELIZABETH BARCHAS PRELOGAR: And so in the moment,
I had to try to excise that word from my vocabulary
for the rest of the argument.
Your Honor, I think we found that in a half dozen cases
or so, but--
- Who wrote that?
ELIZABETH BARCHAS PRELOGAR: He was treating us
like real advocates.
And in that sense, it was kind of a privilege
that he wasn't changing the way that he questions lawyers
just because we were students.
KATHLEEN SULLIVAN: It was awe-inspiring to be
in front of Justice Blackmun.
But he did throw me one trick question.
He asked me whether I remembered which
judge had written the lower court
opinion I was referring to.
And I happened to have gone to Langdell
just that afternoon to review the cases.
We still used books in those days, not online research.
And I had made a mental note of who the judge was.
And I answered his trick question, to his surprise.
HARRY BLACKMUN: We went around and around.
That's what delayed us.
But we have finally concluded that the prevailing oralist
is Miss Kathleen Sullivan.
[APPLAUSE]
KATHLEEN SULLIVAN: What a judge really appreciates, I think,
is the connection to the judge, and the ability to really have
a conversation with the judges.
ANTONIN SCALIA: It was very close,
but to end the suspense, in the view-- unanimous view--
of the judges, the best speaker was
Mr. Singh, for the petitioner.
[CHEERING AND APPLAUSE]
DAVID BARRON: For best oralist, Amanda Mundell.
[CHEERING AND APPLAUSE]
AMANDA MUNDELL: It's hard to take yourself out
of that moment and ask yourself, were you the best team?
Did you argue the best?
And knowing that, after all the hard work
we had done, that we came out victorious,
was both surprising and wonderful.
HARRY BLACKMUN: I certainly look back
on the Ames competition of a long, long time ago
and can remember everything that happened that night.
THURGOOD MARSHALL: These moot courts are great,
so far as I'm concerned.
It's important to these people, and I
know how much time they put in it,
and how much sweat, and how much argument,
and how much everything just short of fisticuffs
that go in writing a brief and preparing for the argument.
JOHN ROBERTS: I decided very early my first semester
that I wanted to participate in an Ames final.
And I decided the easier way would
be to get appointed Chief Justice and come back--
[LAUGHTER]
--as a judge than to do what you all have had to do.
KATHLEEN SULLIVAN: There is no better preparation
for the collegial work of law practice than having a team,
working together to come up with the best briefs,
honing the briefs, reworking them, harrying the issues back
and forth with one another, and then preparing
for oral argument.
DEVAL PATRICK: There was a gravity and a respect
for what the law was for and how precedent had evolved
that I wish was more part of the experience in practice today.
REENA RAGGI: People who participate in Ames already
have the bar set so high for them
in terms of what they expect of themselves
as appellate advocates that they never
are anything less after that.
[MUSIC PLAYING]