In remembering Ruth Bader Ginsburg, Andre Bouffard reflects on his appearance before the U.S. Supreme Court
I was very fortunate to have the chance to argue a case before the U.S. Supreme Court in 2013, when Justice Ruth Bader Ginsburg and her friend Justice Antonin Scalia were both still on the Court. It was a case involving interpretation of a federal transportation statute, and whether DRM’s client (a tow truck company) was protected by the statute from a lawsuit brought by an owner of a towed car. Not a major constitutional question, but an important one to the trucking and airline industries in their efforts to limit exposure to consumer suits. To give credit where credit is due, our former DRM colleague Kate Strickland is the one who was persuasive enough to convince the client’s insurance company to allow her to file a petition for certiorari, which to our surprise and amazement, was granted. Kate and I worked on the appeal together, and I handled the oral argument.
The courtroom at the U.S. Supreme Court is surprisingly small and intimate, where counsel argue from a podium no more than 15-20 feet from a wide, curved bench behind which sit the nine Justices. Justices Ginsburg and Scalia, the then most senior members of the Court, sat to the immediate left and right of the Chief Justice, John Roberts. Tiny and soft spoken Justice Ginsburg was the first one with a question only 30-45 seconds into my argument. Ever respectful of counsel and the Court itself, she asked a fair question or two that made clear her thinking about the key issue in the case, and called for our position on that issue to be articulated. She was plain spoken in her questions and truly curious to hear the answers. After my best effort to respond, she deferred to her colleagues, most of whom had their own questions, some rhetorical (i.e., directed at one or more of the other Justices), and others probing the limits of the logic behind the arguments.
Justice Ginsburg had a close personal relationship with Justice Scalia, dating back to the days when they both sat on the D.C. Circuit Court of Appeals in Washington, D.C. But they were also ideological adversaries, with Justice Scalia one of the leaders of the conservative wing of the Court, and Justice Ginsburg a leader of its liberal wing.
Later on in the argument, Justice Scalia made a point that he thought the Court had decided one of the points at issue in the case in an earlier decision by the Court. He was incorrect because the decision he was referring to was one on which he had dissented from the Court’s ruling. When I pointed this out to him, he had a hearty laugh, claiming he forgot he had dissented in that case. What an honor to be able to parry with one of the greats in that argument. Especially one famous for a ferocious certainty about the validity of any argument he advanced.
When the decision came out, the apparent mistake by Justice Scalia during argument was vindicated. Justice Ginsburg wrote the decision for the Court, affirming the decision of the court below to allow the suit against our client to go forward. Her decision for the Court cited the dissenting opinion Justice Scalia had written in the earlier case, in effect adopting the view of Justice Scalia as part of the decision of the Court in our case. This was a rare instance in which a view first expressed in a minority, dissenting opinion, later becomes adopted by the Court. Although we will never know for sure, I think there could have been a draft decision circulating among the Justices before the argument, in which Justice Ginsburg was adopting the dissenting view of Justice Scalia from the prior case. Hence the question from Justice Scalia, who was playing inside poker with knowledge of what the decision was likely going to say. Perhaps this was a trade-off between the two for some support Justice Ginsburg sought from her friend and colleague in another case? Maybe she was buttering him up for a pitch for support on some other big case coming down the pipe?
In any event, it was a highlight of my career to have this experience interacting with the Justices, especially Justice Ginsburg, with her quiet dignity and respect for both the Court’s work, her colleagues and those who appear before it. Our country was so fortunate to have such an accomplished person serve as part of the Supreme Court for so long, working tirelessly to see that all voices receive an equal reception at the highest Court in the land.