Update: More thoughts here, after having heard the argument recording, available here:
12-1173
Here's the transcript from today's oral arguments in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173. That's the case in which the Court is considering the meaning of the term railroad "right of way" as used in an 1875 federal statute.
We were going to review the transcript and then post some thoughts, but the speedsters at SCOTUSblog beat us to it with "Argument recap: Oh give me land, lots of land...," wherein they report that the arguments were a "seminar-like hour," where Justice Breyer repeatedly disclaimed knowledge of his law school Property class basics. One thing we noted right off the bat in our quick skim of the transcript was that Justice Scalia must've been chapped about something, because no sooner did petitioner's counsel begin, than the Justice interrupted to ask whether he was "reading."
You know, we've all been there in some venue, haven't we? We're all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won't even go down to muni court naked (so to speak). Especially when what's at stake is the language in an otherwise obscure 1875 federal statute, where it's important to get the language just so.
To the Justices, oral argument is just another day at the office. And maybe that's also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument -- even those not of obvious public interest that may have in years past, gone unnoticed by the larger media -- where counsel's every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale.
But maybe Justice Scalia was just giving counsel gas, given that SCOTUSblog reports that "[h]e had Scalia on his side almost all the way (at least after the Justice’s initial taunt)."
Our takeaway from SCOTUSblog's report is that neither petitioner's counsel, nor the deputy SG arguing the case for the government could tell the Justices how much land might be affected by their ruling. We made a related point in our amici brief, although it was not a question of acres affected, but of Tucker Act cases and just compensation dollars. We argued that the government has taken the position it has here in the hope of obtaining a nationwide ruling that will virtually wipe out an entire class of rails-to-trails takings cases that the government has consistently lost in the Court of Federal Claims and the Federal Circuit. You want to know how many? For a start read our brief, which has more than a few examples of cases that could have had a different outcome.
Besides, should it be all that surprising that the government lawyer would be reluctant to provide the answer (if the government even knows the answer) of how much havoc would result if the Court ruled its way, given it could be the petard on which their argument is hoist?
Petitioner's counsel on rebuttal focused the court in the right area, we think, by noting that he couldn't say about how much land overall might be affected by a decision, but that he could tell the Justice how much of his client's land was at stake. As a respected colleague of ours remarked (someone who actually has stood in his brogues at the SCOTUS lectern more than a few times), the job of figuring out the larger facts are for legislators, and our job as lawyers is to know our clients' cases. In that regard, we think petitioner's counsel finished on a strong note when he stated that "I don't have any light to shed on the actual mileage [of property affected overall]," but that "[w]e do know how many acres are involved in this case, and the government is claiming 10 of the 83 acres that it patented to Marvin Brandt's parents."
And as far as we can tell, he wasn't reading that.
Transcript of oral argument, Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Jan. 14, 2014)...