In a perfect world, my first U.S. Supreme Court argument would have attracted the attention of no one but my client, my family and maybe a few of my closest friends. As it turns out, that wasn’t meant to be. My first argument was in one of the most closely watched cases of the 2013 term: McCutcheon v. FEC, a First Amendment challenge to the federal aggregate limits on campaign contributions. McCutcheon was destined to sharply divide the court. Several justices had already staked out starkly conflicting positions on campaign finance issues, and at least a few had openly called for the court to reconsider much of its jurisprudence in the area — some because they think it provides too little First Amendment protection, others because they think it provides too much. Suffice it to say, I knew I was in for a hot bench, and for some close scrutiny both inside and outside the courtroom.
While that dynamic certainly didn’t help on the anxiety front, the argument itself actually was not the most nerve-wracking moment of the experience. That came the day before. For weeks, I had spent nearly every waking moment preparing: reading, rereading and rereading yet again all the cases and briefs, compiling reams of questions and answers, doing multiple moot courts, and pacing around my house talking to myself (I did a lot of that). By the day before the argument, I had done my three moots, read everything forward and backward, committed my opening to memory, refined my core themes, and practiced my key points and transitions to a fare-thee-well. So after a final morning of preparation, I was as ready as I was going to get. While that ought to have instilled in me a sense of confidence and calm, instead, I started to panic. What was I supposed to do now? I couldn’t possibly stop preparing with the argument less than 24 hours away, could I? What if I realized in the morning that there was some lingering detail I had yet to master, and it was too late to do anything about it?
At that point, I realized I needed to get out of my house — and my head — for a while, so I went to the office on the pretense of finalizing my argument materials (again). In reality, I just spent a few hours chatting with my colleagues, which did wonders for my nerves. I went home feeling ready in a non-panic-inducing way, especially after I gave a final listen (okay, it turned out to be a second-to-last listen) to my go-to inspirational song, Eminem’s “Lose Yourself.”
I slept surprisingly well the night before the argument, and, by the time my colleague Paul Clement, who thankfully would be sitting with me at counsel table, pulled up to take me to the court, I was in pretty high spirits. Then I got in the car, and he took a look at my bag of binders and said, “That’s all you’re bringing?” Ouch. Note to self: Next time, ask greatest Supreme Court advocate of his generation what to bring to an argument before the morning of. Oh well, I was in the zone, and I wasn’t about to get hung up on things that it was too late to do anything about.
When I arrived at the court, I was surprised to find that a sense of calm overcame me. I may not have had my turn at the podium before, but at least I was on familiar territory. I had gone to every single argument during my clerkship with the chief justice, not to mention dozens more before and after, so I knew the court’s etiquette as well as anyone. And I was surrounded by the friendly faces of members of the clerk’s office that I’d gotten to know over the years, who were unbelievably kind and encouraging and seemed almost as excited for my debut as I was. I had run into my family on the way to the lawyers’ lounge, so I knew they were safely seated in the courtroom. And all that stood between me and my first Supreme Court argument was about 45 minutes.
I still remember most of the argument in vivid detail. When I finally stepped up to the podium, my knees were knocking — literally — but I managed to get through about three sentences of my five-sentence opening exactly as I had intended before Justice Stephen Breyer jumped in. That probably took all of 45 seconds, but it felt like an eternity. But once the questions started, the nerves melted away. And for better or worse, the questions never stopped.
The most memorable moment of the argument for me came when Justice Ruth Bader Ginsburg asked me a question to which I responded that I had two answers. After I gave the first answer, Justice Antonin Scalia jumped in and said something to the effect of, “I would have thought you’d say …” To which I responded, “That was my second point” — and the courtroom erupted in laughter. While everyone seemed to assume I was being clever on my feet, in all candor, I was just being honest; it actually was my second point. But what made that moment so memorable for me is that, until I heard the laughter, I honestly had forgotten there was a courtroom full of people behind me. So if nothing else, at least I had taken Eminem’s advice to heart.
One of the best things about the McCutcheon argument was that I was the appellant in the first case of the day, which meant I didn’t have to sit through anyone else’s arguments anxiously awaiting my turn. But the downside (at least from an anxiety perspective) of being the appellant is that meant that I couldn’t relax when I sat down, as I still had to get back up for rebuttal 40 minutes later (I had 20 minutes of a divided argument). I had managed to save three minutes for rebuttal, and I very much hoped to follow the chief justice’s advice to stick to home-run points — in large part because I did not want those three minutes to come to an abrupt end with an awkward answer to an unhelpful question. So I kept what I wanted to say to a minimum, said it, and then promptly sat down. Finally, I could breathe a sigh of relief.
Or not. Although I had survived the justices, I still had to survive the press, which, notwithstanding (indeed, perhaps because of) my journalism background, I found an equally daunting prospect. But I managed to make it through that, and I’m told a nice sound bite or two even emerged. And at that point, I really did get to breathe a sigh of relief.
On reflection, I learned several valuable lessons from my first argument. Here are a few. First, don’t bother trying to bring a binder up to the podium. No matter how small it is, the size of the lectern makes the idea that you could actually open it fanciful. I’ve since settled on the ever-popular route of taping a few pages to a manila folder.
Second, telling the justices you have two responses to a question does not make them any more likely to let you give both. I must have said it nearly half a dozen times, yet I don’t think it worked even once (unless you count when Justice Scalia gave my second answer for me).
Third, try to avoid cases that might lead a justice to invite you to do math during your argument. And if you can’t avoid that, then at least decline the invitation. No good can come of a lawyer trying to do math on their feet.
Finally, bring your mother to the argument, as at least you can count on her not to be too harsh of a critic. When my argument ended, my mother apparently turned to my sister and said, “Oh, good, she didn’t pass out or throw up.” I’ve never done either in a high-pressure situation, so I’m still not sure why she set the bar quite so low, but if nothing else, at least I exceeded her expectations by a comfortable margin.
I’ve been fortunate enough to have a few more Supreme Court arguments since McCutcheon, and each one has brought its own challenges, lessons and rewards. But nothing will ever top the experience of my first. (And yes, I would say that even if we hadn’t ultimately won the case 5-4.) There is something intoxicating about the energy of the court on the morning of a big argument, particularly when it comes, as McCutcheon did, only two days into a new term. And while I’m sure the nerves will always run just as high, the adrenaline I felt that morning remains unparalleled. But above all, even now, the notion that I got to argue McCutcheon still seems surreal. It’s hard to imagine that anything in my career will ever top the honor and privilege of having clients who were willing to put their faith in a 33-year-old rookie to stand before the United States Supreme Court and present oral argument on their behalf.
Erin E. Murphy is a partner at Kirkland & Ellis LLP in Washington, D.C. Her practice focuses on Supreme Court, appellate and constitutional litigation. She has argued three cases before the Supreme Court, including successfully arguing McCutcheon v. FEC and successfully arguing on behalf of the U.S. House of Representatives in Texas v. United States.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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