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  • May 04, 2022

    AMC: U.S. Supreme Court Advocate Paul Clement Will Discuss Roberts Court

    Wisconsin native Paul Clement has argued more cases before the U.S. Supreme Court than anyone in the modern era. In June, he will discuss recent changes undergone by the Roberts Court at the State Bar of Wisconsin's Annual Meeting & Conference.

    Jeff M. Brown

    Paul Clement

    May 4, 2022 – Even though he’s argued 110 cases before the U.S. Supreme Court, Paul Clement still feels a twinge when he steps to the lectern and addresses Chief Justice John Roberts with the words “may it please the Court.”

    “If you’re not nervous about arguing a case in front of nine Supreme Court justices, you’ve kind of lost the thread of what you’re doing and how challenging it can be,” Clement said.

    Clement, who grew up in Cedarburg, Wis., has argued more cases before the Supreme Court than anyone over the last 20 years.

    He argued 50 cases during a stint in the U.S. Solicitor General’s Office under President George W. Bush, first as Deputy Solicitor General (2001-2004) and then as the nation’s 43rd Solicitor General (2005-2008).

    This term Clement, a partner at Kirkland & Ellis LLP, has argued four cases, including one involving religious expression by a high school football coach and one involving a Second Amendment challenge to a state’s denial of a concealed-carry license.

    Two weeks before arguing the religious expression case, Kennedy v. Bremerton School District, Clement spoke to the State Bar of Wisconsin. A member of the State Bar, Clement is scheduled to give the closing plenary at the State Bar’s 2022 Annual Meeting and Conference, June 15-17, at the Grand Geneva Resort in Lake Geneva.

    Back to the Badger State

    When Clement takes the stage at AMC on June 17, the U.S. Supreme Court will also be on the verge of handing down decisions on a number of hot-button issues.

    In addition to religious liberty, the Court is poised to make major pronouncements on abortion rights, public tuition for religious schools, and immigration policy.

    “How the Court handles some of the really controversial cases that will be decided between now and my talk will inform part of what I cover,” said Clement, who has appeared on a short list of possible U.S. Supreme Court nominees under a Republican president.

    “Some of the most controversial cases may still be undecided. I’ll try to keep my speculation to a minimum.”

    Clement has argued some of the most high-profile cases and controversies to come before the Court the last 20 years. Parties often call him with cases headed to the U.S. Supreme Court, but he also represents clients in state and federal appellate courts.

    Clement’s cases aren’t limited to questions of constitutional or statutory interpretation. For instance, Clement represented the National Football League against the New England Patriots’ Tom Brady in the “Deflategate” scandal, a case that turned on the interpretation of a collective bargaining agreement.

    In this pre-conference interview, State Bar Legal Writer Jeff M. Brown gains insight from one of America’s top lawyers. Clement discusses his formative experience in high school forensics, the Supreme Court confirmation process, and his upcoming visit.

    You’ve argued more cases before the Court than any other advocate. Has it become old hat or do you still get stage fright?

    I think I’ve probably gotten over the stage fright but I still get butterflies before the arguments. If that ever changes, I think I’m going to have to find something else to do, because the reality is the nerves are part of what keeps you preparing and making sure that you’re fully prepared for the argument. I definitely still get the nerves before it and I view that as a good thing.

    When we interviewed you in 2016 you said you use moot courts to prepare for your Supreme Court arguments. Do you still do that?

    I’ve always done the moot courts as part of my preparation process. I think that’s something that didn’t use to be standard, maybe 30 or 40 years ago. I don’t think it’s a coincidence that Supreme Court lawyers started feeling the need to do moot courts before the arguments about the time that Justice Scalia went on the court in 1986.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    If you go back and listen to a Supreme Court argument from the 1970s or the early 1980s, you’ll hear that the lawyer gets a lot of speaking time and there’s only a handful of questions in a 30-minute argument.

    That really started changing once Justice Scalia got there. He started asking a lot of questions, and then some of his colleagues said, ‘We’re not going to let the new guy get all of the questions,’ so they kind of joined in. So now, if you listen to a 30-minute Supreme Court argument, you’re going to hear 25, 30, or more questions.

    Today, in the Supreme Court, if there’s an art to oral argument, it’s the art of answering questions, so you really have to practice that beforehand and the moot courts are the best way that I’ve found of getting the kind of questions you’re likely to get from the justices. Thinking about both your first instinct and how to answer them, and then how your answers can get better over time. That’s why the moot courts are so valuable.

    Who do you find to sit on your moot courts?

    Like most things they’re only as valuable as getting the right people. If you have really good colleagues asking you really hard questions, then you have a very productive moot court and it gives you a great preparation for the real thing.

    What I’m looking for in terms of staffing my moot courts is to get people who have argued before the Supreme Court themselves and know the justices, know the kind of questions that you’re likely to get from the justices.

    I have some lawyers from my own firm participate in the moot court, some of whom have argued Supreme Court cases themselves, but then I also ask some of my colleagues from other firms who don’t have a conflict if they will judge one of my moot courts in exchange for me judging one of their moot courts – there’s a little bit of a favor bank there. That way, you really get the best possible sort of judges for your moot courts. They’re most productive when you get the really hard questions in advance instead of hearing them for the first time in the Supreme Court.

    Does serving on moot courts help you with your Supreme Court arguments?

    It does, because you get a sense of how your colleagues are preparing, how they approach similar questions. Every case is different, but a lot of Supreme Court cases involve statutory interpretation or constitutional interpretation, so you can certainly learn a lot from watching your colleagues in their preparation process.

    One of the things where I learn the most is watching my colleagues argue really hard cases. There’s nothing better than watching a really good lawyer argue a case that they’re going to lose 9-0, because you really get to see them under maximum stress and trying to present the best possible case to the court. But you also understand that they’re not going to exaggerate anything to try to win one case because they know they’re going to be back up there soon enough arguing a different case.

    You’re famous for arguing before the Court without notes. Did that come from preparing for moot courts?

    Honestly, it goes all the way back to boys extemporaneous speaking in Wisconsin forensics tournament in the early 1980s. I realized that in order to do really well in boys extemporaneous you had to not use notes. And the first couple of tournaments I went to, I used my little note cards and I finished middle of the pack.

    Then, in one of them, I just decided to throw them away and I ended up breaking into the final round. So, ever since then I’ve realized that you don’t really need the notes if you’re prepared enough to give your speech or to make your presentation to the Court, you’re prepared enough not to need to look down – you’re not really using the notes as anything but a crutch.

    You can do without it and you’ll end up, if anything, doing a better job because you’re not distracted by anything, you’re fully engaged by eye contact with your audience. Part of it for me is that I feel like for my style of argument, I like to make it more of a conversation and in real life. It’s just more natural and I think it flows better if you’re not encumbered in that way. But it’s definitely not for everyone.

    I think almost every lawyer who argues in front of the Supreme Court argues without using their notes. So, it’s just a matter of whether you’re going to bring them up with you or not.

    Had you set your sights on arguing before the Supreme Court in high school already?

    I didn’t have my sights set on the Supreme Court back then. I have an older brother who’s an attorney who went to law school when I was still in grade school. So the idea of being a lawyer was something that had occurred to me relatively early on.

    Even when I showed up at law school, I didn’t have a firm sense of ‘I want to be a Supreme Court litigator or an appellate litigator.’ Honestly, when I first got there I thought, ‘Well, maybe I’ll be a corporate lawyer’ because I had an economics degree and I didn’t mind corporations and a lot of my law school classmates seemed to really dislike them.

    What I had thought of as a lawyer when I was growing up was more of a litigator than a transactional lawyer, so I was attracted to that. Then, it just became very natural me to get interested in appellate law because, as a law student, you’re mostly reading appellate cases.

    And then I did well enough that I had an opportunity to do a couple of appellate clerkships, including a Supreme Court clerkship. And by the time I’d done all that, I had an appreciation that arguing cases in the Supreme Court would be a really interesting and challenging way to practice law.

    We’ve just been through a SCOTUS nomination. You have some experience with the vetting process that takes place before the hearing. What’s that like?

    When I was at the Justice Department, I was there when the Chief Justice and Justice Alito were selected. The Justice Department typically keeps the solicitor general a little on the sidelines of that process, because they figure that whoever the nominee is, the solicitor general’s office is going to be arguing in front of them.

    But I did sort of see that process from the inside, and it is an exhaustive preparation process for the justices. They’re not preparing for a Supreme Court argument, they’re preparing for these congressional hearings and everything that goes with that. In the confirmations that I’m familiar with, you do go through a process of trying to simulate what the hearings are going to be like, what answers are good answers, and the like.

    I certainly don’t envy anybody going through that process, that’s for sure. It is long, it is arduous. A Supreme Court argument is typically about an hour. Those confirmation hearings can go on for days.

    Do you see Judge Jackson’s appointment leading to any counterintuitive alignments, the way Chief Justice Rehnquist swung on commercial speech issues, or Justice Scalia swung on Confrontation Clause issues?

    I’ll be interested to see whether there is in some criminal cases an alliance between Justice Jackson, who has this unique experience as a public defender, and some of the more conservative justices who have kind of followed in Justice Scalia’s footsteps in being skeptical of federal over-criminalization and have been very critical of vague federal criminal statutes. I think there could be kind of a surprising common ground there, less on the criminal procedure issues and more on cases that involve the scope of federal criminal laws and federal criminal prohibitions.

    One of them that I think will probably get in front of the Supreme Court before too long is a prohibition that prohibits bribery of state and local officials. That’s one where I think there’s sort of a federalism angle and there’s an overbreadth angle.

    The other issue that will probably get there eventually are some of these insider trading cases, because some of the prohibitions there aren’t even in the statute, they’re rule-based. I can definitely see the former public defender and the justices who kind of follow in Justice Scalia’s footsteps viewing those issues in a similar way.

    Recent opinions and grants of certiorari signal some big changes in Supreme Court jurisprudence, with landmark cases coming into question. Roe v. Wade and Chevron are two of the most obvious. Do you see any less obvious cases or areas of the law where the Roberts Court is likely to take a different tack from precedent?

    Those are cases where the Court shifting direction is really focused on whether the Court’s going to overrule one of their precedents or make a sharper break in the law based on a single case. And another way, of course, for the law to change and for the Roberts Court to kind of show its different approach to some of these issues is for the Court to take multiple cases in the same area and not have a big overruling that captures a lot of attention but, in case after case, move the law in one direction.

    I see that happening more in the area of religious liberty and the protections under the Free Exercise Clause … the Roberts Court really is shifting the balance in favor of free exercise rights and making it easier for a government to avoid Establishment Clause liability.

    What does the court’s expanded use of the emergency docket presage, if anything? What might it mean for the court’s legitimacy? What do you make of the Chief Justice joining the dissent in a recent emergency docket decision?

    Every appellate court has an emergency docket where they handle motions for stays or motions for injunctions pending appeal, and virtually every court handles those in a different way from their so-called merits cases – they rarely have oral argument in those stay applications. With the Supreme Court, I don’t think there’s anything remotely problematic about having an emergency docket – they have to have an emergency docket.

    So then it just becomes a debate about how the justices use it? How often do they use it? And the fact that the Chief Justice recently joined a dissent from five of his colleagues granting relief in that emergency posture puts a close focus on whether, in that case or some other cases, the court is using the docket in the right way.

    I think I have sort of the minority view on this, but I think it’s almost a shame that we started talking about it as the ‘shadow docket.’ It just sounds like it’s inherently sinister, and I think that’s wrong.

    By its nature, it’s kind of innocuous, and like anything else you can say ‘Well they’re using it too often.’ I think the debate in this recent case was what constitutes irreparable harm, and those are fair debates about whether they’re using it too much or whether they’ve used it correctly in this case or that case.

    Opinions and dissents – the justices talking to each other publicly – have become increasingly sharp and sometimes even personal. What do you make of that, and the effect it has on the institution?

    If you take the long view on the tenor of the dissenting opinions, I don’t really any see anything that is outside the historical norm. I think particularly in a term like this, when the stakes are high it’s human nature that people are going to write separate writings that are a little sharper than they would be in a case where the court is dealing with ERISA cases and other cases where the temperature is on a much lower boil.

    I think it’s always been healthy for the Court that they have a little bit of an offseason. The term has a rhythm – the Court usually issues all of its merit decisions by the end of June and then takes three months off, and they don’t get back together again until October. I think that’s all healthy, because I think it allows the justices to get out of Washington and away from each other, and then reconvene.

    If there’s anything unusual about this – and maybe less so this term than last term – the Court, with COVID, had more justices working remotely. They weren’t seeing each other in the hallways the way they traditionally had.

    My own view is, putting the Supreme Court to one side, if you see your colleagues in the workplace you’re reminded that they are people, you’re reminded that they have feelings, you see a different side of them. Just being together promotes a degree of collegiality. And I think maybe last term, just because of COVID, at the Supreme Court you didn’t have that dynamic and that may have had a little effect.

    Most people focus on the handful of cases where there’s this sharp division and they kind of ignore that the next day the Court issued a unanimous opinion or the two justices who just got in a public spitting match over some issue then agreed as part of a separate concurring opinion and saw a particular case exactly the same way.

    I tend to think that the more data points you look at, the more normal the disagreements. I think they’re still within a range that suggests that the Court is functioning much the way it always has functioned.

    Give us a preview of your talk at the AMC in June.

    What I plan to talk about is the Roberts Court in transition. One of the things I do want to focus on is how much the Court has been in transition over the last couple of years.

    There was a period at the beginning of my career arguing cases in front of the Supreme Court where the Court had a historic period of stability. And now the Court has changed so rapidly over the past couple of years that I think it really is an interesting dynamic and the personalities.

    One of the oldest adages in Washington is, ‘Every time you have a new justice, you have a new Court.’ That means we’ve had four or five different courts just in the last couple of years.

    I’ll certainly say a word or two about Justice Breyer and his tremendous public service. I think that sometimes we focus too much on 'What’s the new justice going to mean?' and we lose sight of the fact that Justice Breyer has been such an important part of the Court.

    AMC 2022 logo

    Join your colleagues at the State Bar of Wisconsin’s Annual Meeting & Conference (AMC), June 15-17 in Lake Geneva.

    AMC will host nationally-renowned plenary presenters – including former U.S. Solicitor General and Wisconsin native Paul Clement – and a variety of continuing legal education (CLE) sessions, helpful practice resources, and plenty of social activities to fill up your time.

    Make it a summer to remember at the Grand Geneva Resort & Spa. Savor the scenery, have fun with family, and recharge by drawing from the energy and excitement of the Conference’s special events.

    Meet your colleagues at the Grand Geneva in a relaxed, friendly atmosphere, away from the interruptions and stress of the typical workday. Enjoy the summer breeze off the lake, championship golf courses, and a revitalizing spa. Make it a family vacation and bring your kids.

    How to Register for the 2022 Annual Meeting & Conference

    Register by May 5 to save $50 on your regular registration rate. First-time attendees save $100 off their registration. For more information about AMC, visit

    To register:

    • visit the event page in the WisBar Marketplace;
    • call (800) 728-7788;
    • download and fax the conference registration form to (608) 250-6020; or
    • download and mail the conference registration form to: State Bar of Wisconsin PINNACLE Registrations, P.O. Box 7158, Madison, WI 53707-7158.

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