Lawyers at Supreme Court See Their Impact on Decisions

A sign on the bookshelf in Erwin N. Griswold’s law office says: “Babe Ruth struck out 1,330 times.”

It is a reminder, he explains. “You win some and you lose some.”

In his 82 years, Griswold knows about winning and losing in the Supreme Court, where he and other lawyers have helped to shape a Constitution that marked its bicentennial last year.

Although no person alive has appeared as an advocate before the nation’s highest court more often than Griswold--127 cases in a career spanning 57 years--he is at a loss to assess his influence.

But others among the elite group of lawyers who have practiced frequently before the court--successors to such 19th-Century advocates as Daniel Webster and Francis Scott Key--believe their efforts have had an impact.

‘Can Assist the Court’

“The quality of advocacy can have an effect on the court’s work,” said Rex E. Lee, like Griswold a former solicitor general, the federal government’s top courtroom lawyer. “It can help in affecting the outcome and, more often, it can assist the court in writing a better opinion.”

One area of constitutional law in which advocates appear to have played a leading role involves the battle for sexual equality.

Ruth Bader Ginsburg, now a federal appeals court judge, was on the cutting edge of the women’s movement.

“The equal status of men and women before the law would not have figured as a featured topic in a celebration of the Constitution’s centennial 100 years ago,” Ginsburg said in a recent speech on social change in the United States.

When the American Civil Liberties Union decided that it was time to join the legal fight for such equality in the early 1970s, it picked Ginsburg, now 54, to lead a special project on women’s rights litigation.

Sex Discrimination

The Supreme Court responded quickly. For the first time in its history, the court in 1971 threw out a state law on the ground that it discriminated against women.

The justices overturned an Idaho law that gave preference to men in serving as administrators of estates of children without wills.

But the task confronting Ginsburg and her allies in that case, and a series of others that followed, was complicated by the fact that many of the challenged laws seemingly gave women extra legal protection.

“Classifications involving women had been seen as benign,” Ginsburg said, because they treated women as more vulnerable and needing greater protection.

“Beneath the surface, these qualifications served to keep women in their place,” she said. “It was an education process. Gentlemen of a certain age think, I take good care of my wife and daughter. They had to be made to see that the classification was not God-given. It was created by men.”

Series of Appeals

The ACLU’s strategy for dislodging such stereotypes was to bring a series of appeals that would create a foundation for each succeeding case until the goal of constitutionally guaranteed sexual equality was reached.

A turning point was achieved when the court, in another case argued by Ginsburg, ruled in favor of a female Air Force officer who had sought increased benefits for her husband as a dependent.

But only four justices agreed that the federal law treating men and women differently was inherently suspect. Other justices in the majority voted to strike down the federal law in question on narrower grounds.

“We took the most radical view” in the case, Ginsburg recalled. “Usually, lawyers will put first the argument that requires the least change” to win the case. “We wanted to put the argument in the most dramatic terms.”

Four justices--”to our utter amazement,” Ginsburg says--endorsed the more radical position, that sex discrimination should be regarded with as much suspicion as racial bias. It was a mixed blessing.

‘Not Get a Fifth Vote’

“It was disappointing because it was obvious we would not get a fifth vote,” Ginsburg said.

The court in 1976 created a new standard of review for laws and governmental policies treating women differently from men. It said classification by sex, to withstand attack, must serve an important governmental objective and be substantially related to the achievement of that objective.

That standard, still in force, has been used to invalidate numerous state and federal laws.

It was a Supreme Court presided over by then-Chief Justice Warren E. Burger, perceived to be more conservative than the earlier court led by Chief Justice Earl Warren, that gave the women’s movement its key legal victories.

But, Ginsburg said, it may have been a case of the court “catching up to the change in society” rather than taking the lead in a social revolution.

One of the most successful practitioners before the court is Laurence H. Tribe, 45, a Harvard law professor.

Held in awe by many for his brilliance and encyclopedic knowledge of the law, Tribe was an early bloomer. He enrolled as an undergraduate at Harvard at 16.

Mastery of Law

But he also has been the butt of jokes, on and off the Harvard campus, portraying him as a ceaseless self-promoter “campaigning” to become a Supreme Court justice. Even his detractors, however, acknowledge that Tribe’s mastery of constitutional law, and of Supreme Court precedents, may be unmatched.

Tribe’s 1,200-page book, “American Constitutional Law,” is often cited by lawyers and judges.

“These constitutional doctrines have a life of their own,” Tribe said. But, particularly in close cases, he said, “Advocacy can make a difference as to the result or the reasoning.

“When I take a case, it’s because the issue is important and interesting and it is a position in which I believe.”

He prevailed in convincing the justices that the public has a constitutional right to attend criminal trials even when the defendant objects.

Battling long odds, Tribe narrowly lost a celebrated case in 1986 when the court, voting 5-4, said states may outlaw sodomy between consenting adults.

Does Not Use Notes

As with most attorneys anticipating an appearance before the court, Tribe immerses himself in the case. Unlike most, he argues without the aid of notes or any written text.

“Virtually everything has to be in my head,” Tribe explained. “I’m always somewhat nervous. I look forward to questions from the bench I haven’t anticipated.”

Lee, the former solicitor general now with a Washington law firm, has had the advantage of viewing the issue from different perspectives.

Fresh out of the University of Chicago law school in 1963, he worked for a year as clerk to Supreme Court Justice Byron R. White.

He served four years as the Reagan Administration’s advocate before the high court. Then, in 1985, he returned to private practice.

As solicitor general, it fell to Lee to decide which government losses in lower courts would be appealed to the Supreme Court. The court traditionally has granted review to a far greater percentage of the federal government’s appeals than to those filed by individuals, businesses and state and local governments.

Nonpartisan Approach

The court looks to the solicitor general for professional objectivity and a nonpartisan approach to the law. Griswold, for example, held the job under Presidents Lyndon B. Johnson and Richard M. Nixon.

Lee encountered heavy criticism from fellow conservatives for what they regarded as a lack of ideological purity.

For example, he refused to ask the Supreme Court to overturn landmark rulings legalizing abortion and outlawing organized school prayer, instead taking more moderate positions.

A devout Mormon and father of seven, Lee says that he personally opposes abortion but that his job was to argue plausible positions and not to sacrifice his standing with the justices by sticking unrealistically to principle.

“I’m not the pamphleteer general,” Lee was fond of saying.

“You must be respectful of the court as an institution, of its precedents,” he says now. “It doesn’t do any good to preach, to lecture.”

The court receives about 5,000 appeals each year and agrees to hear arguments and issue opinions in about 150. It is common for more than a third of the cases granted review to be government appeals.

46 Arguments

“The court does pay attention to who lawyers are, and that does make a difference in getting the justices’ attention,” said Lee, 52, who has argued 46 times before the court over 20 years.

To improve their chances of persuading the court, many lawyers rely on what is known as “moot court” exercises, in which associates or other legal experts pepper them with questions in preparation for the real thing.

A man to whom other lawyers turn for such help is E. Barrett Prettyman Jr., 62, who served as a clerk to three Supreme Court justices--Robert H. Jackson, Felix Frankfurter and John M. Harlan.

Prettyman says the opportunity to shape the Constitution in court cases is limited because of the extensive record of precedents on which the justices rely. His advice to attorneys preparing for argument is more down-to-earth.

“If you hear a voice, unless Larry Flynt is in the courtroom, it’s a justice’s. Shut up,” Prettyman said. “It seems so simple and obvious. But it’s amazing how it’s ignored.”

Flynt, publisher of Hustler magazine, was hauled out of the court a few years ago after an obscene outburst.

Hypothetical Questions

Prettyman also emphasizes the importance of anticipating hypothetical questions from the justices. He recalls an instance in which it took him a week to develop a satisfactory answer to a hypothetical question posed by a young lawyer during a moot court session.

As he was about to complete his argument in the case before the court, Justice John Paul Stevens asked Prettyman the exact question.

“My ready response belied the fact that, if the same question had been asked of me without preparation, I would have been, at best, tongue-tied,” Prettyman said.

Michael H. Gottesman, another successful Supreme Court advocate, takes an unusual approach to preparing for an appearance before the justices.

On the day he is to argue, he walks the six miles from his home to the court building, mulling over the case. He studiously avoids writing or rehearsing a prepared text, instead relying on about 10 key words to refresh his memory during what he views as a dialogue with the justices.

13-1 Record

Gottesman, who has lost only once in 13 tries before the court, concentrates on labor law, constitutional issues and civil rights.

His victories include a key 1979 affirmative action case in which the court endorsed an employer-union plan to train blacks.

Gottesman said he wants to discover new information or theoretical nuances that can lead the court to a favorable, and sometimes surprising, result.

In conducting his research, he said, “It’s amazing to me how often I will see things I’ve never seen before. There are always layers to peel off the onion.”

Seasoned court observers say Gottesman’s skill was instrumental in winning an important Supreme Court victory for the children of the late Karen Silkwood, a laboratory analyst who became a symbol for critics of the nuclear power industry.

The justices in 1984 ruled that states may enforce damage awards against nuclear operators for safety violations. Some found it ironic that conservative justices such as William H. Rehnquist and Sandra Day O’Connor provided the margin of victory for the Silkwood children.

States’ Rights

But Gottesman adroitly emphasized a law-and-order theme and the importance of the case for states’ rights, muting any broad attack on the nuclear industry.

“We’re dealing here with a state’s right to punish--to punish conduct that injures people,” he argued at the time.

The ultimate result was a settlement of more than $1 million for the Silkwood children.

Most American lawyers never will get an opportunity to change the nation’s law by arguing before the Supreme Court. To those who do, Griswold offers this advice: Enter with “a reasonably clear mind and an ability to project your voice.”