Garre shares experiences of the Supreme Court

By Denise M. Champagne

Dolan Media Newswires

ROCHESTER, NY-- Most lawyers dream of appearing before the U.S. Supreme Court. A rare few receive certiorari. Gregory G. Garre, a partner in the Washington, D.C. office of Latham & Watkins LLP, has argued 30 cases before the high court.

He spoke of his experiences Monday before The Rochester Lawyers Chapter of The Federalist Society.

Garre, global chair of his firm's Supreme Court and Appellate Practice Group, was the 44th solicitor general of the United States. He has served as the federal government's top lawyer before the Supreme Court and was responsible for overseeing its litigation in the federal appellate courts.

Garre said the biggest opinion issued by the court so far has probably been Snyder V. Phelps, which challenged an $8 million emotional distress jury award granted to the father of a fallen soldier, Marine Lance Cpl. Matthew Snyder, whose funeral was picketed by members of the Westboro Baptist Church.

The church members, who have picketed military funerals for 20 years to communicate their belief that God hates the United States for its tolerance of homosexuality, carried signs with slogans such as "Thank God for Dead Soldiers" and "You're Going To Hell."

Garre said while the justices agreed the actions were vile and reprehensible, they were protected by the First Amendment right to free speech. That was an 8-1 decision with Justice Samuel A. Alito dissenting, which brought up another interesting trend.

Garre said Chief Justice John G. Roberts and Justice Alito had aligned on a number of cases, including the controversial Citizens United v. Federal Election Commission, but that they seem to be diverging more often. He said Citizens United also prompted comments from President Barack Obama -- something rare from the executive branch.

Garre said it is also an interesting term for pre-emption cases, which are getting to the core of when federal law preempts that of the states. He said that the court has taken a "schizophrenic view."

The court ruled federal law pre-empts states in Bruesewitz v. Wyeth LLC, which dealt with whether a section of the National Childhood Vaccine Injury Act of 1986 pre-empts all vaccine claims alleging defective design. However, Garre said, the high court ruled in Williamson v. Mazda Motor of America Inc. that federal safety standards did not pre-empt state torts suits in a case in which the family of a child alleged car manufacturers should have installed lap and shoulder belts in rear van seats instead of just lap belts.

Citing those two cases, as well as FCC v. ATT Inc., Garre said the decisions so far continue to belie a contention that Chief Justice Roberts is pro-business.

Garre pointed out a number of things he finds interesting about the current court, such as it has yet to issue a 5-4 decision, following a trend from last year when there was more consensus among the nine justices.

Garre said one of the most important cases coming up is Wal-mart Stores v. Dukes, which will consider whether there is enough commonality between defendants in a discrimination case involving the retailer to be considered a class for a class action suit.

Already more than halfway through this term, the Supreme Court has issued about 25 opinions. Garre said the number of cases heard by the court has dropped dramatically in recent years, with about 50 per term out of thousands of requests for certiorari.

Besides the 30 matters he has argued before the high court, Garre has also served as counsel of record in hundreds of other cases. Garre had worked with Chief Justice Roberts at the Hogan and Hartson law firm and has argued cases before him and former Chief Justice William H. Rehnquist, for whom he served as a law clerk.

Garre was introduced by Jeffrey A. Wadsworth, a partner at Harter Secrest & Emery LLP and president of The Rochester Lawyers Chapter. He asked how Garre got to argue 30 cases before the Supreme Court.

"Luck is the main answer," Garre said. "I've argued 30 more cases than I thought I would coming out of law school."

He said his work with Chief Justice Roberts before he was chief justice opened the door, as did his experience as solicitor general, which virtually guaranteed he would be involved in Supreme Court cases.

As for advice, Garre recommends presenting the best issues and focusing arguments on them. He suggested not trying to tailor arguments to any particular justice and that the justices appreciate shorter briefs that are targeted and don't use all of the allotted space.

Published: Mon, Apr 18, 2011