Supreme Court Litigation: Both an Art and a Science

by Eli Nachmany, J.D. ’22

Supreme Court litigation is both an art and a science. This realization was my main takeaway from the Harvard Supreme Court Litigation Clinic, in which I had the honor of participating during the three-week 2022 January Term at Harvard Law School. Hosted by the law firm of Goldstein & Russell P.C., the clinic gives second- and third-year Harvard Law students the opportunity to assist with the firm’s work before the Supreme Court of the United States.

The clinical instructors divided the nine students in this year’s cohort into three teams, each of which was assigned to work on a case. My task was to help in drafting a petition for a writ of certiorari alongside two other HLS students—Lauren Fukumoto ’22 and Jessica Levy ’23—under the supervision of a Goldstein & Russell attorney. For those who are unfamiliar, a petition for a writ of certiorari (commonly known as a “cert petition”) asks the Supreme Court to hear a given case on appeal, usually from a state supreme court or a federal court of appeals. Out of many such petitions, the Court agrees to hear only a select few cases each year, so convincing the Court to “grant cert” is a significant feat.

The work was fascinating and challenging. After a series of lectures about brief writing strategy, it was time to put together an initial draft of the cert petition. Working with my teammates, I reviewed our assigned case, researched the caselaw, and got to writing my section. When we finished, we submitted our first draft for review. Our supervisor pored over our writing, peppering the document with comments and tracked changes, followed by a meeting to go over the suggestions. I felt myself becoming a better writer as the clinic progressed, learning why certain aspects of my writing worked and others did not.

This initial feedback was one of many occasions we had to improve our writing during the clinic. Perhaps the most unique aspect of the experience was a workshop of our written work with the other students and attorneys in the clinic. For over an hour, we went line by line through the petition, debating about argument structure and grammatical conventions. I was heartened to see the seriousness with which the other members of the clinic engaged with our written work, and the workshop demonstrably sharpened our draft. Each of the other two teams had the benefit of a workshop session, too.

In addition to drafting the petition, we had the opportunity to attend small group meetings with various prominent figures in the Supreme Court bar. Among the highlights was an hourlong meeting with Justice Elena Kagan ‘86, who fielded our questions on everything from her writing style to her favorite hobbies. We also met with Solicitor General Elizabeth Prelogar ‘08, Fourth Circuit Judge Pamela Harris, former Solicitor General Paul Clement ‘92, Supreme Court journalist Kimberly Atkins Stohr, and many others. Hearing them talk about their work underscored a general theme of the clinic: at this level, high-quality writing is crucial.

As the pieces began to fit together in our own cert petition, I came to appreciate the difficulty of written advocacy before the Court. The most skilled appellate lawyers agonize over every sentence in their writing and think critically about how best to present a slew of arguments within the confines of a word-limited brief. Such writing is both an art and a science. The best briefs “sing,” as Sean Trende once wrote—penning a compelling argument demands a bit of an artistic approach in crafting almost lyrical turns of phrase. But rhetorical aptitude is not enough. A truly great cert petition also requires technical mastery, from rigorous compliance with the Court’s rules for such petitions to discipline in the presentment of key arguments.

In the end, I could not be happier that I spent my January Term with the clinic. The experience was not only exciting but also educational. Attending Harvard Law has made me a much better writer, and the Supreme Court Litigation Clinic is one of the big reasons why. I look forward to applying the lessons I learned in the clinic when I graduate and enter the legal profession.