At the ALTAR of the Appellate Gods: Arguing before the US Supreme Court, by Lisa Sarnoff Gochman, was on my to-read list. I recently saw her and the book mentioned on LinkedIn, and noted that Julie A. Braun of SCOTUSlink had praised it. I teach constitutional law at UNLV and am interested in the Supreme Court, so I bought a copy to read after my torts grades were submitted.
I am not grading those exams today, as I had planned. Last week, a horrible man murdered three of my UNLV colleagues and put a fourth in the hospital. Professors Cha Jan “Jerry” Chang, Patricia Navarro Velez, and Naoko Takemaru were all killed in our business school. A fourth professor fights for his life and future. We sheltered on campus as we waited to see what violence had happened.
These murders especially strike me, as a different stranger almost successfully murdered me in 2016. I came just this close to dying or to never working again. I know what it is like to recover from a stranger’s attack. I fortunately was able to go back to work. After I posted a few things on LinkedIn about my day in UNLV lockdown and the loss of our professors, Gochman commented, “I’m so sorry for your loss. What a traumatic experience for you, your colleagues, and your students. Universities are no longer safe havens on many levels.”
Reading that made me think again about her book. I decided to read it while I waited for my exams. I tried to go back to work as a tribute to my UNLV colleagues’ past work, with wishes they were still here with us to do more. And with hopes that my fourth colleague will have a full recovery.
Gochman writes about the human side of life as an appellate lawyer, especially her twenty-minute argument before the Supreme Court in Apprendi v. New Jersey. In the midst of tragedy, such writing reminds us of the positive side of life rather than the negative, even though crime was involved in her case as well as mine.
New Jersey
It all started in Vineland, New Jersey, which is two hours southwest of New York City and forty minutes southeast of Philadelphia. White pharmacist Charles C. Apprendi, Jr. shot several bullets into the house of the only Black family in town. He disturbed the life of the Fowlkes family, a married couple with three children, in what had been their happy new home. The family was terrified and remembered their fear years later.
After some debate, Apprendi pled guilty, avoiding a jury trial. The judge then decided that Apprendi’s crimes had been motivated by racism. For that reason, he extended Apprendi’s sentence to twelve years instead of ten.
That action set up a number of questions, which were reviewed by the courts several times. Could a judge decide to lengthen Apprendi’s sentence because Apprendi’s actions were racially motivated, or could only the jury decide that question? Was this an issue for the judge or for the jury? Was racism an element of the crime, and therefore something the jury would have to find beyond a reasonable doubt, or a motive for the crime that could be decided by the judge at sentencing, based on a preponderance of the evidence?
Gochman (rhymes with watchman) is from New Jersey, and this was her case from beginning to end. She was born in New York and worked there before spending 26 years in the New Jersey office. She was deputy attorney general with the New Jersey Office of the Attorney General, Division of Criminal Justice, Appellate Section, in Trenton. She represented New Jersey in their court appeals. She was “drawn to appellate litigation because [she] hate[s] the sight of blood.” (23).
She also gives us a sense of living in New Jersey. She describes her life there with her husband Steven and their son Jordan.
From One Supreme to Another
This New Jersey case is the well-known Supreme Court opinion from 2000, Apprendi v. New Jersey, which analyzed the New Jersey Hate Crime Statute, which had been applied to lengthen Charles C. Apprendi, Jr.’s sentence.
Gochman first saw this case through the New Jersey courts and tells us about the hard work she did there. The result in the appellate court was a split, 2-1 decision that automatically brought the case to the state’s highest court. By coincidence, the day before the oral argument before the New Jersey Supreme Court, Matthew Shepard was murdered for being gay. That huge national case focused even more attention on the New Jersey hate crime statute. Ultimately, the New Jersey Supreme Court ruled for Gochman and New Jersey’s hate crime statute.
But the state court decision could be reviewed by the U.S. Supreme court, and Apprendi’s lawyer, Joseph O’Neill, filed a cert. petition. Gochman did the detailed work to write a brief in response.
Gochman was excited. She had always wanted to argue a case in the Supreme Court of the United States. Some days she had dramatically told her family that she would argue there one day. And the Court granted cert. on her case. So there she was, ready to go.
Almost. In the beginning, the Attorney General of New Jersey, John J. Farmer, Jr., told her that he wanted to argue it. He agreed she could be second chair and attend the argument, but he would do the talking. Later he changed his mind, realizing it was a complex case. The argument went to Gochman.
Work for the Supreme Court
Then she had to get ready for it. Waking and sleeping hours were ruined for four years. Deadlines. Son Jordan’s life? She had to exit from as much help as she usually did with third grade, although she did have time to hear about how he was learning mathematics. And goodbye to all her work for the local theater company’s presentation of A Christmas Carol. She was in charge of props. But now she had no time to spare for that.
With humor, she observes the color code of the Court’s briefs, explaining that color makes it easier for the Justices to find the right brief in the courtroom. Eggshell white, Halloween orange, robin’s egg blue, ruby red, adhesive bandage tan, celadon green or Kelly green, and daffodil yellow. Take your pick.
And then there was the brief to write. At times, the “benevolent appellate gods smiled down on me” (36), she writes, with Almendarez-Torres v. United States appearing from the Court. That case said motive was a sentencing factor, as she was arguing in Apprendi. So the gods looked good. Five months later, however, “the once-benevolent appellate gods threw me a curveball” (41) with Jones v. United States. That case said the factor increasing the sentence had to be decided by the jury, so the jury, not the judge, had to find serious bodily injury. Jones included an ominous footnote 6, which suggested a bright-line rule instead of a multi-factored analysis of many points. Gochman wanted the multifactors, not the bright line. The bright line would probably make her lose.
Imagine two related Supreme Court decisions being decided as you are on your way to the Supreme Court. “The odds of this SCOTUS doubleheader playing out at the same time Apprendi was pending in the Supreme Court of New Jersey were astronomical.” (43)
In D.C.
It is amazing the stories Gochman tells of their time in D.C. They were a big group, including her husband and son, her parents, her in-laws, her sister and sister-in-law and their families. Her sister was sworn into the Supreme Court bar by Gochman on the day of the oral argument. Gochman had a supportive husband and child even when she skipped out a little on them to prepare for argument. They all got new clothes for the argument, and Gochman tells us all about them.
In the midst of all the court pressure there was a car accident when the hotel’s valet drove the car down the sidewalk and hit many things, including a mailbox and a garbage can. At least Gochman got a hotel limousine ride from then on; they even delivered her to the Court. Later her family refused to pay a parking fee on her hotel bill.
There were detailed and difficult moot courts once she arrived in D.C. days before the argument. The National Association of Attorneys General (NAAG) sponsored a moot court. The judges were different from those in New Jersey. One of them, Edward DuMont, had argued the Jones case, so that put the pressure on. He had also taken 10 of Gochman’s 30 minutes for the oral argument. The Office of the Solicitor General had a much larger argument than she did. She wanted to keep the Court narrowly focused on the New Jersey hate crime law. They had a much broader point about federal laws.
Gochman spoke frequently with Deputy Solicitor General Michael Dreeben, who had argued 100 cases in the Court. By coincidence, he was another Jerseyan. New Jersey Attorney General Farmer came to the oral argument and supported her throughout. You might recognize his name, as he would later become senior counsel on the 9/11 Commission.
Even the prospect of Y2K and finding the best printer for the brief posed a few problems.
And then there were her twenty minutes on March 28, 2000
In describing the oral argument, she shows how tough Justice Antonin Scalia was on her. Repeatedly. At one point during the argument she thought, “Fuck you, Justice Scalia,” (143) and hoped she hadn’t said it out loud. Justice Ruth Bader Ginsburg had a “professional demeanor” while Scalia was “scorched-earth.” (143) She got along well with Justice Sandra Day O’Connor, who seemed to agree with her. Then there was the biggest shock: Justice Clarence Thomas, long known for being silent, asked a question.
She knew she did well in the argument. Linda Greenhouse mentioned her in the New York Times, and that is always something. But in the end, she lost the case. The Court adopted the bright-line rule that she had opposed. A 5-4 decision is still a loss, even if you get four votes. She got Chief Justice William Rehnquist and Justices O’Connor, Kennedy and Breyer, and Apprendi got Justices Stevens, Ginsburg, Souter, Scalia…and Thomas. Thomas made the difference.
The Fowlkes were disappointed with their loss. When remanded, Apprendi got a seven-year sentence. And the case was over.
Afterwards
For the record, Thomas is the only Apprendi Justice left on the Court.
One of O’Connor’s clerks later told Gochman the Justice “thought [she] did a great job.” (159). When years later Gochman went back to the Court to attend a different argument, O’Connor “made eye contact with me and nodded in acknowledgment.” (188) “I’ll take that over a Sandra Day O’Connor bobblehead doll any day.” (Gochman never received a Green Bag bobblehead.)
She spoke positively of opposing lawyer Joseph O’Neill, with whom she got along well as lawyers often do even when they are on opposite sides of a case. She says defense lawyers should be grateful to O’Neill for bringing and winning this case.
She now accepts the case’s outcome. She does not want to appear in the Supreme Court again. “Winning my case would have been nice, but I’m over that. Tis better to have argued in the United States Supreme Court and lost than never to have argued at all.” (195)
Dean Erwin Chemerinsky, who knows his constitutional law, calls Apprendi “one of the most important U.S. Supreme Court decisions in years…. Every lawyer who practices criminal law and every judge who hears criminal cases must deal with Apprendi on a regular basis. Rarely has any case had such an immediate and dramatic impact on the practice of law.” (179) It “upended sentencing law nationwide.” (180). Justice Stevens said Apprendi “may well be the most significant majority opinion I authored as a justice.” (180)
This book let Gochman relive her case dream without the original anxiety. It is fun to read. One of the lawyers talking with her about arguing at the Supreme Court told her to “Just have fun.” (96) She did. And she “love[s] chocolate milk.” (56) Which makes it even more fun for us chocolate fans.
