It was the morning of May 4, 2020, and attorney Lisa Blatt was about to make history. From a podium that she set up in her Chevy Chase dining room, Blatt was moments away from presenting oral arguments before the U.S. Supreme Court in the first-ever SCOTUS case conducted by telephone.
“My [19-year-old] daughter was there keeping time,” she says, “and my husband was in charge of keeping the dog away from the house so he didn’t bark.”
The case was The U.S. Patent and Trademark Office v. Booking.com, and Blatt was representing the hotel-booking website. She was arguing that the company should be allowed to trademark its name over the objections of the Patent and Trademark Office, which had denied the company’s application on the grounds that “booking” is a generic word and therefore not eligible for trademark protection.
Blatt knew the ruling would carry major implications. It would likely affect not just her client, but also hundreds of other companies whose business model revolved around a trademarked web address that consisted of a generic word or two followed by dot com.
But with the world on lockdown due to COVID-19, and the Supreme Court forced to shift from the model it had used for more than 200 years, Blatt was at a disadvantage: She couldn’t read the justices’ facial cues or body language to gauge whether her arguments were resonating with them or falling flat.
Standing in her dining room in the black suit and white blouse she wore when arguing before the court, she could only hear the justices’ voices over the speakerphone, which was connected to the landline by a 30-foot extension cord. “The mechanics of this were incredibly elaborate,” she says. “We spent a lot of time with the court personnel preparing for it and kind of going through…what happens if the phone doesn’t work.”
As she stood at the podium, waiting for the familiar call of oyez, oyez, oyez to bring the court to order over her speakerphone, Blatt could only hope it would all go smoothly.
Except in narrow circumstances, attorneys must be members of the U.S. Supreme Court bar to practice before the high court, and nearly 200,000 attorneys from all over the country are official members, according to bar records. Yet the actual pool of frequent advocates—those who have represented numerous clients at the high court over many years—is closer to 25, insiders say. Many in this elite club, such as Blatt, live in or around Montgomery County, and their recurring appearances before the court’s nine mercurial justices have given them a celebrity status of their own—and plenty of stories about what it’s like to stand before the highest court in the land.
“It’s an amazing institution. It’s incredible,” Blatt says. “You can’t practice before them without loving them.”
Blatt heads the Supreme Court and Appellate practice at Williams & Connolly in downtown D.C. She has argued 46 cases before the high court—more than any woman in
history—and she has a win rate of nearly 90%, according to her law firm bio.
She won the USPTO v. Booking.com case 8-1 (only Justice Stephen Breyer dissented).
Blatt says the case also paved the way for a new protocol that the court has kept in place even after returning to in-person oral arguments in October 2021. Now, after each side finishes oral arguments, “each justice has an uninterrupted [session] to ask the advocate questions,” she says.
Previously, explains Chevy Chase attorney Peter Keisler, 95% of what the advocates were doing was responding to justices’ questions. “It was a free-for-all,” he says, with justices interjecting as they saw fit.
A longtime partner—and now senior counsel—in the D.C. office of Sidley Austin, Keisler argued his first case before the Supreme Court more than two decades ago. He says the pre-COVID protocol of pummeling advocates with questions started in the 1980s, when William Rehnquist was chief justice and Antonin Scalia joined the court. Scalia “was always a very active questioner…and it seemed that every justice who joined the court [after him] was a more active questioner than the justice that preceded him or her,” Keisler says. Back then, there was a strict 30-minute limit per side for oral arguments, he says, and Rehnquist “was a maniac as to time.”
Indeed, “it was like facing target fire,” recalls Bethesda’s Jeff Wall, who has argued 30 cases before the high court. “On the lectern, there’s a light that comes on when you have a certain amount of time remaining. And then a red light when your time is up…[and under Rehnquist] when your red light came up [you were] expected…to stop midsentence,” he says.
Now, advocates can get their oral arguments out uninterrupted, but with “nine active questioners,” Blatt says, arguments can sometimes run long. Between both sides’ orals and the justices’ questions, Blatt’s 2022 case of Andy Warhol Foundation for the Visual Arts v. Goldsmith went on for close to two hours, she says—nearly twice the pre-pandemic limit.
In the end, she won the case 7-2, with all but Chief Justice John Roberts and Justice Elena Kagan siding with her that the Andy Warhol Foundation had infringed on photographer Lynn Goldsmith’s copyright when it commercialized a series of Warhol silk screens based on Goldsmith’s 1981 photograph of the singer Prince.
“For the advocates,” Blatt says, having more time to speak is always “a lot more fun.”
Those who practice regularly before the high court prefer the term “advocate” over “attorney” to describe their role because “our stock-in-trade really is our advocacy, Wall says. “It’s what we take pride in and how we judge ourselves within the profession.” There’s no higher compliment, he says, than being told you are an excellent advocate.
Guessing what they’ll ask
Bethesda’s Gregory Garre, head of Latham & Watkins’ Supreme Court and Appellate practice, has argued 48 cases before the high court. “The court today is much more focused on historical arguments than it was 10 years ago,” Garre says, meaning that all the justices these days, including Ketanji Brown Jackson, the most recent confirmation to the court, tend to look not only at modern precedents, but the historical events surrounding a constitutional provision.
Garre says he typically holds two moot courts to practice his cases in front of colleagues who are tasked with poking holes in his arguments and asking questions he’s likely to hear from the justices. Yet he has still experienced some “colorful” exchanges with justices that he didn’t anticipate, including one about whether dogs were used to track down 19th-century serial killer Jack the Ripper, and another back-and-forth about what would happen if Big Bird accidently uttered the “F-bomb” on Sesame Street.
“The only really zany [questioner] was Justice Breyer…because he would ask super crazy, wild hypotheticals,” Blatt says. “Justice Scalia probably had the most combative jousting style…and Justice [Sandra Day] O’Connor….would always ask for a yes or no answer.
“In terms of individual styles…Justice Jackson’s very animated and fun,” Blatt says.
Before the pandemic, Justice Clarence Thomas was often criticized in the media for not asking enough questions, but that was because he didn’t want to become part of the frenzy, Blatt says. Now “he is known as one of the best questioners,” she says. “There’s usually a pause after the advocate gives his or her opening remarks to see if Justice Thomas has a question, and he usually does.”
Up close and personal
Few people realize how close the attorneys are to the justices when making oral arguments, says Wall, who heads the Supreme Court and Appellate practice for Sullivan & Cromwell. The lectern is only about 6 feet from the chief justice’s face, he says, with the most senior justices flanking the chief justice and the most junior on the wings. You are so close to the chief justice, Wall says, “that you can’t see all nine [justices] in your field of vision…it’s a difficult balancing act to be able to argue to all nine.”
Wall says he’ll never forget his first case before the Supreme Court 14 years ago. He had recently joined the U.S. solicitor general’s office and was asked to argue on behalf of the federal government in support of New York City. “I was terrified. I couldn’t sleep the night before, so I got up and went to the office in the wee hours of the morning to practice,” he says.
Wall had been instructed that his first words before the court were supposed to be: Mr. Chief Justice and may it please the court, yet he recalls that Scalia bellowed out a pointed question before he had a chance to get settled at the lectern. But once he got in his introductory line, he says, “the nerves fell away.”
Wall won the case, but what was even more meaningful was that “it turned out…in the courtroom was a clerk in the chief justice’s chambers, and she’s now my wife and we have two beautiful kids,” he says.
Bethesda’s Neal Katyal, who is a New York Times bestselling author, a partner in the D.C. office of Hogan Lovells, and a frequent guest on MSNBC, has argued 43 cases before the Supreme Court—more than any other minority attorney, according to his personal website. Yet he still gets nervous every time he appears, he says.
“I wear the exact same thing to the court every time: my dad’s Sikh kara bracelet, socks my mom gave me, a tie my aunt gave me and a suit I bought a while ago,” the 1991 Dartmouth College graduate told his alumni magazine in 2018.
Garre says that no matter how many times he argues before the court, “one of the most thrilling things…is exiting…through the great bronze doors and walking down the court steps…having just survived an argument.”
But that long, magisterial flight of stairs happens to be “one of the brightest spots in D.C. on a sunny day,” he adds, “so you have to proceed with caution to make sure you don’t finish your day by tripping on the steps and tumbling to the bottom.”
Staying under the radar
Keisler says that the cases that don’t get much media attention are the most exciting to argue because the justices aren’t coming in with preconceived notions.
“If you’re arguing one of the big headline cases…you are coming in pretty late to the game,” he says. “But if you’re arguing about, you know, what’s the maximum compensation rate for a disabled longshoreman, it may be that when [the justices] open your brief, that’s the very first time they’ve thought about that.”
Keisler’s long resume includes stints at the U.S. Justice Department and the White House counsel’s office, and two nominations that required appearances before Congress. Yet, he says, “there’s nothing like the direct interaction and focus an advocate has in the court.”
Think about it, he says: Lobbyists go to Congress and appear before committees where members are shuffling papers or walking in and out of the room, or they go to the executive branch and likely meet with staffers.
But at the Supreme Court, “for an hour plus, you’re there with the nine decision-makers…and they really are the decision-makers,” he says. “And they’re not focused on anything else. They’re not talking to anyone else. They’re not coming in and out. They’re not shuffling papers on some other matter. They are completely engaged in the case at hand.”
As for the longshoreman-compensation case he argued before the court in 2012, Keisler says he was told shortly afterward by a friend that Justice Samuel Alito was making public remarks along the lines of everyone thinks we spend all our time deciding about affirmative action and abortion, and Alito referenced the longshoremen case as an example of how dry and technical most of the cases are that come before the court.
“And I will tell you,” Keisler says, “I was pleased that my case had been singled out.”
Down on SCOTUS
Only 44% of Americans view the Supreme Court favorably, according to the latest Pew Research Center poll. That’s the lowest favorability rating since Pew began polling the public about the court in the late 1980s.
Pundits blame the court’s declining approval numbers on recent controversial decisions involving abortion, LGBTQ+ rights, student loans and affirmative action—as well as a series of news reports involving justices accepting potentially inappropriate gifts and mingling with high-profile partisan donors.
Critics have called for reforms, including expanding the court. Last spring, U.S. Rep. Jamie Raskin (D-Takoma Park) was among 14 co-sponsors of a bill to boost the number of justices from nine to 13.
Tom Goldstein, a Bethesda attorney who has made frequent appearances before the nation’s top court, has even spoken out against its ability to render fair and impartial decisions since the addition of three Trump-era appointees: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett.
Goldstein and his wife, Amy Howe, co-founded SCOTUSblog, an independent news source for all things Supreme Court-related. When Goldstein announced his retirement earlier this year from the Bethesda law firm that he founded more than a decade ago, he said it was partly in response to the Supreme Court’s evolving character, according to Reuters. “In the important civil rights and social cases, the court’s conservative super-majority makes it very difficult for the little guy to win,” Goldstein told Reuters at the time. (Goldstein did not respond to Bethesda Magazine’s requests for an interview.)
Other local attorneys Bethesda Magazine interviewed who argue regularly before the court say that while the current makeup of the court is more conservative than in recent years, every case is decided on its merits.
For example, says Bethesda’s Jeff Wall, the court’s 2020 ruling in Bostock v. Clayton County, Georgia, found that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination based on sex. The decision was 6-3, with Gorsuch, President Donald Trump’s first appointee to the court, writing the majority opinion—joined by Chief Justice John Roberts and the court’s four liberal justices. “The court sometimes does reach outcomes that people are predicting, but oftentimes it doesn’t,” Wall says. “It is a court that will reach conservative legal results more often. But that does not mean that…folks presenting different arguments can’t get a fair shake.”
A self-proclaimed liberal Democrat, attorney Lisa Blatt wrote an article in 2018 for news website Politico that supported Kavanaugh’s nomination. “I still think he’s an incredible justice,” she says now, even though she is “extremely pro-choice” and Kavanaugh voted with the majority last year in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade. “I was disappointed, but not surprised [in the ruling],” she says. “[As an advocate] you don’t have to like every decision.”
Journalist Amy Halpern has worked in print and television news and as the associate producer of an Emmy Award-winning documentary. She lives in Potomac.