Reprinted with permission from The Legal Times,
August 14, 2000. Copyright 2000 The Legal Times.
FIGHTING FIRE BEFORE THE HIGH COURT
Donald M. Falk *
One day in May of last year, while flipping through a
stack of slip opinions, I came across Dewey Jones' case. Had I overlooked it, I
would have missed the opportunity that led to my first argument before the U.S.
Jones had tossed a Molotov cocktail into his cousin's
living room. Fortunately, no one was hurt. Unfortunately, Jones was charged by
federal rather than state authorities. On his three federal counts - arson, use
of a destructive device, and manufacturing an explosive - Jones received
mandatory minimum sentence of 35 years, many times the likely term under state
I was familiar with the federal arson statute, which
applies to property used in an "activity affecting . . . interstate commerce."
Courts read those terms broadly, so that there was nothing unusual about the
tenuous links relied on in Jones' case: The action affected his cousin's
out-of-state insurer, mortgage lender, and the provider of natural gas to the
Meanwhile, my pro bono work dwindled as I had approached
partnership. Having become a partner four months earlier, I was ready to take
the plunge again.
This case was attractive for a few reasons. For one, it
would allow me to explore the commerce clause directly. In 1995, the Supreme
Court had decided United States v. Lopez, finding that the commerce clause, like
other powers enumerated in Article I, granted limited rather than unlimited
power to the federal government. The 7th Circuit had rejected Jones' argument
that Lopez barred his conviction, but acknowledged that other circuits had held
that the statute could not be constitutionally applied to private
In addition, I was more than ready to make a run at getting
my first oral argument in the Supreme Court. More than a dozen of my partners
had argued there in the last few years, and I wanted to take my place among
I called Jones' lawyer. After confirming that his client was
indigent, I offered to handle the case pro bono in the Supreme Court. After a
week or so of letters and phone calls, the case was mine. Now all I had to do
was get certiorari granted and win.
I knew I would need help, and I
wandered down the hall in search of help from a top associate. Sharon Swingle
was always overloaded, and I almost walked past her door. But I stuck my head
in, just in case. Sharon signed on, and was invaluable the rest of the
Crafting the petition was largely a matter of simplifying the
issues. There were additional circuit conflicts nested within the one
acknowledged on the face of the 7th Circuit opinion. The challenge was to
leverage the conflict acknowledged in the opinion, show that the disagreement
ran more deeply into fundamental issues of commerce clause analysis, yet avoid
getting bogged down in hair-splitting minutiae.
It also seemed prudent to
provide some suggestion of the proper commerce clause analysis. After all, the
conviction had been allowed to stand under the commerce clause, but there was
nothing commercial about Dewey Jones' arson.
Two days before the Supreme
Court was scheduled to consider the petition, I did a last search for new cases
that might deepen the split between the circuits.
Earlier that week, the
5th Circuit had held - under two different rationales - that the federal arson
statute could not constitutionally be applied to the arson of a church building.
I banged out a supplemental brief calling the case to the Court's attention, and
filed it a few hours after discovering the case.
Our case did not appear
on the next order list. The next week, however, I was tied up on a conference
call when my partner, Alan Untereiner, burst into my office with the news: "They
Mr. Jones was pleased. I warned him that we hadn't
accomplished anything for him yet.
December was frantic. I had far less
time than planned to revise the draft of the merits brief, squeezing a few days
at the end of the month. I went home the night before the brief was due,
planning to dial in to work remotely and catch an hour or two of sleep. Computer
problems changed those plans. I drove back into the office and worked through
the night. As morning began to turn into midday, the printer called, exhorting
us to deliver the proofs quickly if we planned to file on time. We barely made
The first moot court certainly helped me focus, in the way a stroll
to the gallows concentrates the mind. I could hope that the justices would not
be just as biting, skeptical, and persistent as my colleagues Kenneth Geller and
Lawrence Robbins, as well as the other experienced Supreme Court advocates in
the room. But I couldn't be sure.
The way I was going, I would never get
past the meaning of the word use and would lose that point. My clear vision of
the limits of the commerce clause didn't come out so clearly when I tried to
explain in that room. Robbins - who is handling a federal arson case on habeas -
suggested a better opening strategy and offered to do a last-minute one-on-one
moot at the end of the week. Two moots later, I was in much better
When I stood up in the well of the Supreme Court on March 21, I
got exactly as far as I thought I would - about 90 seconds. But I had laid down
my marker: The government was asserting unlimited power where only limited power
had been granted.
The argument was challenging, but much more pleasant
than that first moot. Justice Anthony Kennedy asked the questions about use that
Ken Geller had pressed in the moot, but this time my answers got me some relief.
Justice John Paul Stevens and I discussed the tension between our argument and a
unanimous opinion, construing the same statute in the context of rental housing,
that he had written 15 years ago. Justice Antonin Scalia drew out my doubts
about the constitutionality of that decision, doubts that I continued to argue
need not be resolved in deciding Mr. Jones' case.
One by one, the
justices weighed in with one concern or another, but I did not run into a brick
wall with any of the justices. I sat down. The deputy solicitor general came
under steady bombardment from the beginning. He handled the questions deftly,
but things looked promising for our side.
Two months later, we had won
unanimously. In an opinion by Justice Ruth Bader Ginsburg in Jones v. United
States, the Court construed the statute to avoid the constitutional concerns,
concluding that a private residence's passive connections with interstate
commerce did not come within the statutory terms. This time, when we reached Mr.
Jones, we could tell him that we had accomplished something.
appellate lawyers without government experience, pro bono work is a professional
necessity as well as a duty. There is no better way to take the next step up in
experience, whether it is one's first oral argument or simply one's first
argument in the United States Supreme Court. I enjoy working with business
executives and corporate counsel on the antitrust, intellectual property,
regulatory, employment, and other business-related issues that occupy most of my
practice. But there is something bracing about working for someone whose freedom
is at stake - as I am reminded by the hand-drawn thank-you cards that Dewey
Jones sends from prison as he awaits resentencing.
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Donald Falk is a partner in the Supreme Court
and appellate practice group of the Washington, D.C., office of Chicago's Mayer,
Brown & Platt. He argued for the petitioner in Jones v. U.S. last term. In
addition, the firm represented the petitioner in Solid Waste Agency of Northern
Cook County v. Army Corps of Engineers and submitted amicus briefs in FDA v.
Brown & Williamson, Geier v. Honda, U.S. v. Locke, Norfolk Southern Railway
Co. v. Shanklin, Reeves v. Sanderson Plumbing Products Inc., U.S. v. Morrison,
and Weisgram v. Marley.
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