1–0? Supreme Court Win Likely for Big Law Associate

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By Kimberly Robinson

Nov. 9 — Mayer Brown LLP's Michael Kimberly joined an elite club Nov. 4—he argued his first case before the U.S. Supreme Court.

With only 70–80 cases argued each term, that's an impressive feat on its own.

But what makes it even more unique is that Kimberly is an associate. He's the third big law associate this term to argue before the high court.

And by all accounts, Kimberly is set to come out of his first oral argument a winner.

Just a Conversation

Kimberly is no stranger to the Supreme Court. He's filed more than 100 cert. petitions, several of which have been granted.

But he made his oral argument debut Nov. 4 in a voter redistricting case, Shapiro v. McManus, No. 14-990.

Kimberly described the experience as intimate and contrasted his experience with his arguments before en banc courts of appeal.

In the U.S. Court of Appeals for the Fifth Circuit, there were 15 judges on Kimberly's en banc panel. He said the podium was so far back to accommodate the number of judges that the proceeding felt distant and formal.

But the podium at the Supreme Court is much closer, Kimberly said. It made it seem more like a conversation among 10 people, he said.

Coulda, Shoulda, Woulda

Another difference from Kimberly's previous circuit court arguments and his Supreme Court appearance was preparation.

The preparation was much more in-depth, Kimberly said.

Circuit courts are generally focused on the case in front of them, and what they have to do given the case law, he said.

The Supreme Court isn't quite so bounded, Kimberly said. It's more about what the court should do, he suggested.

When you are in front of the Supreme Court, you have to be able to talk not only about what the cases say, but why they said it, Kimberly said.

One example he gave was an early question from Justice Antonin Scalia.

Scalia wanted to know if the court's previous decision in this area wrong. Should it be overruled, Scalia asked.

To respond to questions like that, Kimberly said, you have to be prepared to discuss first principles behind the case.

Little Green Men

After all the preparation, there really weren't any surprises during oral argument—with the exception of a brief discussion about “little green men,” Kimberly said.

Arguing against Kimberly was Maryland Assistant Attorney General Steven M. Sullivan. In an effort to explain previous case law, Sullivan invoked “little green men” and “extraterrestrials.”

That reference seemed to catch Scalia off guard too. “I don't know what you mean by ‘extraterrestrials,' ” Scalia said. “What are these?”

“Some of the case law refers to … ” Sullivan started. “Aliens? No?” Scalia interjected.

“Aliens,” Sullivan confirmed.

Cold Bench

But apart from this other worldly exchange, Kimberly said the oral argument went pretty much as expected, including the fact that the bench was uncharacteristically cold, asking few questions from either advocate.

Notably, Kimberly had a full 11 minutes left for rebuttal. Most attorneys manage to save only a few minutes of their 30-minute oral argument time for rebuttal.

But Kimberly said he anticipated that because the case isn't an especially hard one.

The question is when can a single judge dismiss a redistricting case. Redistricting cases generally must be referred to a three-judge district court panel.

Kimberly said the background legal issues are pretty settled—a single judge can only dismiss when the case is “constitutionally insubstantial.”

But the Fourth Circuit said a single judge can dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

That's a much higher bar to clear, Kimberly said, adding that the Fourth Circuit seemed to go off the deep end.

Additionally, Kimberly noted that the main issue in front of the Supreme Court was procedural, not substantive. In those circumstances, the case tends to be less contentious, he said.

Enormous Implications

But while the merits may be non-controversial, the issue underlying the case is “about as important a question as you can imagine,” Justice Stephen G. Breyer said during argument.

It could “affect congressional districts and legislative districts throughout the nation,” Breyer said.

As Justice Samuel A. Alito Jr. noted, the Supreme Court has never seen a political gerrymandering claim that it thought was justiciable.

Kimberly's clients argue that the First Amendment could provide a mechanism for policing such line-drawing. They argue that by focusing on Democratic and Republican voters during the redistricting process, the state is unconstitutionally retaliating against constituents for the way they have voted in the past.

Kimberly said it's a theory that the plaintiffs haven't been able to develop yet, because a single judge bounced the case under Rule 12(b)(6).

But he said that if the case is ultimately successful—“a big if”—it would be a real shift in how redistricting is done across the nation.

The implications are enormous, Kimberly said.

Peripheral View

Oral arguments seemed to indicate that Kimberly is likely to win on the procedural issue at the Supreme Court. But the substantive one is still very much in the air.

In fact, just how far the court will even go into the issue is still an open question, Kimberly said. Their questions at oral argument only dealt with it peripherally, he said.

The only question touching on the substance for the justices to decide at this point is whether the First Amendment issue is so insubstantial that a single judge can dismiss it without referring it to a three-judge district court panel, Kimberly explained.

He said only Breyer really asked about this issue during oral argument, and he seemed satisfied that there was enough there to let the case go forward, Kimberly said.

Whether the justices decide the issue or whether they leave it to the courts below, Kimberly thinks it's a foregone conclusion that the case should be referred to a three-judge panel.

Make the Opportunity

Regardless of how the case comes out, Kimberly credits his firm Mayer Brown with a big part of his success.

No firm is going to put this kind of opportunity in your lap, he said.

You have to find the kind of place where, if you work hard and make the opportunity for yourself, the firm isn't going to take that away, Kimberly said.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information 
Transcript of the argument in Shapiro v. McManus at http://src.bna.com/UX.