A chilly reception at the court.

• Author: Bederman, David J.
• Position: First Arguments at the Supreme Court of the United States

My first Supreme Court argument was a humbling, but ultimately valuable, experience. I represented the Petitioner in Sandra Jean Smith v. United States. (1) Haven't heard of the case? Well, don't feel bad. Even in this era of reduced Supreme Court dockets, every term there tends to be at least one case that makes Supreme Court watchers scratch their heads and wonder what could possibly have motivated the Court to grant review. My case--as reduced to its essence in the question I presented to the Court in my petition for writ of certiorari--was deceptively simple and (at the same time) fairly inconsequential: "Is Antarctica a 'foreign country' for the purposes of the Federal Tort Claims Act?"

Yes, you did read that correctly. My case was the first before the Supreme Court to raise the question of the legal consequences of acts done in Antarctica, in this case, whether it was permissible to sue the United States for its negligent acts there. The Federal Tort Claims Act (FTCA), on its own terms, excludes jurisdiction over claims "arising in a foreign country." (2) My client's husband was killed when he fell to his death into an unmarked crevasse outside the major United States base on the frozen continent, so the question was fairly raised whether Antarctica qualified as a "foreign country," and thus whether claims arising there were excluded under the FTCA.

I had no delusions that Smith would be a landmark decision for American jurisprudence. I had previous experience with such a blockbuster case, having served as one of Petitioner's lawyers (although not arguing counsel) in Lucas v. South Carolina Coastal Council, (3) a regulatory takings decision that had been a highlight of the 1991 term. But I was not entirely prepared for much of the derision that would greet the Court's ruling in Smith. No less an authority than Kenneth Starr observed in the Wall Street Journal that

[l]ast term's embarrassingly skimpy docket ... included such distinctly trivial issues as whether Antarctica is a "foreign country" for purposes of the federal statute that allows individuals to sue the federal government for torts. That issue arises every 20 years or so in litigation somewhere in the U.S., and two courts of appeals were indeed in conflict on the subject. But the issue is of singular unimportance to the nation and its ever-growing body of federal law. (4) The ABA Journal, in an article appearing after the Smith decision came down, wondered

why the justices chose to hear this particular case.... [since] the number of FTCA claims arising in Antarctica (or outer space) is presumably modest. Perhaps the answer is that the justices have adopted the "Star Trek" creed, resolving "to boldly go where no man has gone before." (5) Despite the unfavorable attention the case received, in taking it to the Supreme Court I derived some satisfaction from knowing that I was literally representing widows and orphans. John Emmett Smith had been a good provider for his family. His death had placed them in difficult financial straits. A negligence suit against the United States was their only recourse. It seemed an abuse of sovereign immunity for the federal government to exploit a hyper-technical reading of the FTCA to ward off this suit on jurisdictional grounds. I was pleased to take the case, and declined a fee.

I got the brief from a very talented set of lawyers in Oregon who had handled the matter in the trial court and the Ninth Circuit. One of the local counsel could not continue with the case because he had just been appointed to the Oregon state trial bench. I agreed to handle the Supreme Court case because I had previously written some law review literature about this question, and, by virtue of my advocacy work for a number of environmental organizations devoted to the Antarctic environment, was concerned about the resolution of the FTCA question's impact on other matters. In other words, I was an academic babe in Supreme Court practice-land. I knew enough to put together a workmanlike cert petition, and to think...