A first argument in the tradition of many.

• Author: Brinkmann, Beth S.
• Position: First Arguments at the Supreme Court of the United States

INTRODUCTION

I first argued before the Supreme Court of the United States on March 23, 1994. I knew when I was hired as an Assistant to the Solicitor General that my job would be to brief and to argue cases before the Supreme Court on behalf of the United States. So when the time came for my first argument, I was ready--ready, that is, for the legal argument and for the difficult questions. I was not prepared, however, for the tremendous sense of honor that I felt when I entered the courtroom that day.

I had experienced a similar feeling when I served as a law clerk to Justice Blackmun several years earlier. The majesty of the Supreme Court building is awe-inspiring even to a casual visitor, and actually working in the building and participating in the business of the Court is the opportunity of a lifetime. The same is true of appearing as an oral advocate before the Supreme Court. I have had the good fortune of arguing eighteen more cases there over the past nine years, and I have felt the same sense of honor each time, including the day last year when I argued before the Court for the first time as a lawyer in private practice.

Regardless of the number of times that an attorney appears before the Court, the responsibility to the client is always tremendous and the broader significance of the case is inescapable. That responsibility and significance are the driving forces behind an attorney who engages in the rigorous preparation that a Supreme Court argument demands.

THE PREPARATION

When I began work as an Assistant to the Solicitor General in December 1993, it was unclear when I would be given my first oral-argument assignment. The Court had just completed its third of seven argument sessions for the Term. The Justices would hear argument again for six days during each of the remaining four argument sessions. There was not enough time for me to brief a case that would be argued during the January or February argument sessions, so I hoped that I would get an assignment for March or April, but that depended on which cases the Court decided to hear and which were not already being handled by one of the other attorneys in the office. I knew that I might have to wait until the next Term, which would begin the following October. The precise date of my first argument did not preoccupy me for long, however, because my workload would not permit such a distraction. I immersed myself in drafting briefs for the Supreme Court and writing recommendations for the Solicitor General. At the same time, I tried to take advantage of the opportunities available to watch oral arguments before the Court, especially arguments by other attorneys in the office.

Because the Office of the Solicitor General handles all of the work for the United States in the Supreme Court, attorneys who have worked in the office are the most experienced advocates before the Court. That is particularly true of the Deputy Solicitors General, three of whom are career attorneys who have argued cases for decades. So I made sure to attend oral arguments by several of the Deputies, as well as those of Solicitor General Drew S. Days, III, who was an experienced Supreme Court advocate from his time as an Assistant Attorney General in the late 1970s. I also went up to the Court to watch other well-known advocates and other Assistants argue when I could take an hour out of my workday. Of course, I had watched many arguments during the 1986-1987 Term when I served as a law clerk, but now that I was preparing to stand at the podium myself, that seemed a very long time ago and my memory of the details was vague. Moreover, watching arguments with the knowledge that I would be the one having to answer the Justices' questions in the near future significantly altered my perspective. I now found myself not only analyzing the legal arguments of the advocates, but also their argument strategies and styles, as I waited for my turn.

It came on March 2, 1994, when the Solicitor General assigned New York Department of Taxation v. Milhem Attea & Brothers to me for oral argument. In Attea, cigarette wholesalers challenged the system that the State of New York had set up to collect taxes on sales of cigarettes to people who bought cigarettes at stores on an Indian reservation but were not members of the Tribe. Under federal law, the State could not tax on-reservation sales of cigarettes to members of the Tribe, but could tax on-reservation sales of cigarettes to non-members. The problem for the State was how to collect the tax within the confines of the Indian Trader Statutes (1) and federal law doctrines that prohibited the State from unduly burdening commerce with the Tribe.

I had been assigned the Attea case soon after my arrival as my first case to brief. That assignment did not, however, mean that I would be assigned the case to argue as well. Argument assignments could not be made until closer in time to the date of oral argument. The Solicitor General first had to see which cases were scheduled on which dates during the particular two-week argument session in order to identify the cases that would be argued by the Assistants, the cases that would be argued by the Deputy Solicitors General, and indeed, the cases that he would handle himself. As it turned out, it fell to me to argue Attea, and I was pleased to get the assignment.

The United States had an interest in Attea because it was expected that the Court's opinion could set forth broad principles that would determine what regulations States generally would be authorized to impose incident to collecting taxes from non-Tribal members who purchase goods on tribal reservations. It was the job of the Solicitor General's office to consult with the various components of the federal government that could be affected by the case and to consider all of those interests to determine if the federal government had a particular perspective that should be presented to the Court.

The attorneys in the Appellate Section of the Environment and Natural Resources Division at the Department of Justice prepared a draft brief, as was typical, and continued to work closely with our office as the brief and arguments were developed further. We also worked with attorneys in the Department of the Interior to determine what position the United States should take in the case. And we spoke with attorneys representing...