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Struggling Lawyers Show How Not to Argue Before the Supreme Court

By Casey C. Sullivan, Esq. | Last updated on

Wednesday was not a shining moment in the history of Supreme Court oral arguments. This was not Paul Clement going punch-for-punch with Justice Souter in Hamdan v. Rumsfeld. It wasn't even Margie Phelps, a crazed member of the Westboro Baptist Church, winning over the reluctant justices in Snyder v. Phelps.

On Wednesday, the Supreme Court heard oral arguments over whether states can penalize drivers who refuse to take warrantless breathalyzer tests. And attorneys for all sides performed "like a clodhopping amateur trying out for a moot court team," as Slate's Mark Joseph Stern so adroitly describes it.

How to Lose Justices in 45 Minutes or Less

The arguments in Birchfield v. North Dakota began with the grilling of Charles Rothfeld, the attorney for a group of drunk drivers who had refused breathalyzer tests and were criminally penalized as a result.

In 2013, the Court ruled that blood testing without a warrant was a Fourth Amendment violation. Blood testing was, after all, a highly invasive form of search.

Rothfeld was in the unenviable position of having to argue that breathalyzers were just as invasive. "Why isn't there a big difference between a blood test and a breathalyzer?" Justice Breyer asked. The best he could muster: breath tests were "a significant intrusion on personal integrity," which didn't seem to sway the justices. Breyer even blew into his microphone, mimicking the action required to complete a breath test. Just calling that "significant" "doesn't help me," he chided.

Even Justice Sotomayor joined in, after Rothfeld had described 20 seconds as "an extensive period of time." "There's something very different in the level of invasion," between a breathalyzer and a blood test, she noted. Why can't we just view it as a necessary extension of the stop, Sotomayor wondered.

(As Slate points out, the fact that the drivers were "definitely drunk" didn't do Rothfeld much good. Danny Birchfield, for example, drove his car into a ditch and emerged stinking of booze. Steve Beylund, another driver, was pulled over with an empty wine bottle in his cup holder.)

The Other Side Did No Better

Following Rothfeld's difficult argument, Thomas McCarthy, the attorney for North Dakota, should have had a fair go of it. He didn't.

When asked how long it would take to reach a judge and obtain a warrant, McCarthy turned a bit evasive. An hour in populous areas, he said. Even longer in rural parts of the state.

Justice Kennedy laid in: "Why is it harder to get somebody on the phone in rural areas than in big cities?" he asked. "I think people in the rural areas were sitting waiting for the phone to call."

When told that North Dakota lacked the resources and manpower to produce a quick warrant, Justice Sotomayor snapped, "So that excuses you from a constitutional requirement?"

Justice Kagan invited McCarthy to discuss the practical obstructions to obtaining a late-night warrant prior to conducting a breathalyzer test. After all, the practicalities had already dominated the first half of the arguments.

McCarthy, though, declined, launching into an explanation of the point of warrants. "You're just not answering the question" about why warrants can be expedited, Kennedy complained. "None of us want an answer in terms of law," Justice Breyer explained. "We want to know a practical fact."

He didn't quite get it.

And Then There Was Keena

Oral arguments ended with Kathryn Keena, Assistant Dakota County Attorney, who argued on behalf of Minnesota. Perhaps aiming for some Midwest charm, Keena began her oral arguments by pointing out that she grew up "20 miles from the North Dakota border" and attended college "in the Fargo-Moorhead area."

And then she lost the case.

Literally four sentences into her oral argument, having not faced a single question, she admitted that "it may be possible to get a search warrant in every case." What's more, "if that's what this Court is going to require, in Minnesota, we are going to be doing warrants and blood draws in every case."

"And that's not what this Court wants," she claimed, leading Justice Breyer to blurt out a shocked "What? Why?"

Justice Breyer later asked, if it "just requires a phone call to get a warrant, what's the problem?" Keena's astute response: "why bother?"

And then, after ten minutes, Keena's argument ended, not with a bang but with a whimper. After a back and forth with Justice Sotomayor, Keena essentially stopped responding. Justice Alito commented that "Justice Sotomayor is assuming that you're going to lose. So she wants to know what your reaction is to that."

All the justices erupted in laughter. "I don't like it. I don't like it one bit," Keena said, then ended her argument.

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