by Teri Sopp
Since the 1940’s, more than 20 Jacksonville private practitioners have appeared before the United States Supreme Court on behalf of their clients; of course, many other lawyers have represented various government agencies before the highest Court as well. Florida’s Solicitor General, Jacksonville resident Scott Makar will be appearing before the Court three times in the fall, representing the State in two criminal cases and one environmental law case. Makar previously argued before the highest Court in March, 2008, in a case regarding Piccadilly Cafeteria’s post-bankruptcy state tax liabilities. Makar prevailed in that case. Interestingly, Makar’s Jacksonville neighbor, attorney Brian Gowdy, is one of the opposing attorneys in the Graham case set for argument this fall. Of the about 41 cases argued before the Court by Jacksonville lawyers, eight of them involved issues of criminal law; two of those eight actually turned on First Amendment issues. The remaining cases dealt with contract issues, labor law and, of course, insurance questions.
Attorney and Florida Coastal School of Law Professor Rod Sullivan was most recently before the Court, arguing a case about punitive damages in maritime injury cases. Sullivan participated in mock arguments at the University of Texas, and found them very helpful. Sullivan became “extra nervous” as the attorney in the case before his was “shredded” by the justices. Six of the nine justices queried Sullivan; Justice Thomas, who wrote the majority opinion (in Sullivan’s favor), asked no questions at all.
Longtime civil-rights litigator and criminal defense attorney Bill Sheppard of Sheppard, White & Thomas has had three cases before the court; one settled prior to the argument and one of the others required two trips to Washington. Sheppard’s experience with mock arguments and Supreme Court focus groups was not as positive as Sullivan’s; in his first appearance before the Court, a Harvard Law School professor and class had urged him to skip rebuttal argument, saying that the justices did not like it. In his second appearance Sheppard went with his own intuition and reserved rebuttal time; he found himself in a heated argument with Justice Rehnquist during that rebuttal. Sheppard laughs now, remembering Rhenquist telling him sternly, “We’re not here to get bogged down in the facts!” That case, Sheppard says, was decided totally on the facts.
John S. Mills, now of Mills, Creed and Gowdy, P.A., was before the Court; in October, 2004. Mills argued Clark v. Martinez, before a court that would include Justice Rehnquist making an appearance at what would be his last at an oral argument. Mills was actually the last attorney to answer a question from Rehnquist; Mills admits his answer was sort of “smart-aleck.”
Although Mills prevailed - - the issue was whether the United States could indefinitely detain a foreign national who has been ordered deported where his home country will not take him back. Not surprisingly, Rehnquist was one of the two dissenters.
Local social security lawyer Sarah Bohr of Bohr & Harrington appeared before the Court in 2000; Sarah worked with attorneys who had previously appeared before the Court to prepare her argument. Bohr also prevailed in her case, which dealt with the question of attorney’s fees in social security cases.
When asked at a later speaking engagement whether arguing before the highest court in the land was the hardest thing she had ever done, Bohr thought for a moment then said, “No, clearly not - - it was raising a teenager!”
Jacksonville attorney William Kent recalled his case at the high court.
“I had not been an Assistant Federal Defender long when I handled an armed bank robbery case, where I raised a technical objection to the then-relatively-new Federal sentencing guidelines.” said Kent.
As Bill puts it, out of a technical objection came a conflict between the authority of the federal courts versus the authority of the Federal Sentencing Commission to interpret the guidelines.
While still handling a full federal defender caseload, Bill typed his own briefs at the small office library in the old federal courthouse, while his wife kept him company and watched movies on the video player. Bill was understandably “very” nervous on the day of the argument, but says the argument went well.
“I was used to speaking on my feet from my jury trial work,” said Kent.
Most attorneys take their families to the courtroom during argument. Sullivan and Makar took their wives and children; Kent’s wife Caroline went with him. Sheppard experienced a poignant family moment this summer, while taking 11-year-old daughter Lillianna Rose on a tour of the Court. While waiting in the line to clear security, Lillianna Rose asked, “Daddy, will you come see my first argument at the Court?”
Sheppard, now 67, realized he’d be nearing 80 when the next generation of Jacksonville attorneys hits the U.S. Supreme Court.