Some thoughts on yesterday’s remarkable oral argument in the Philadelphia sanctuary-city appeal

Yesterday afternoon the Third Circuit held oral argument in City of Philadelphia v. Attorney General United States, a blockbuster appeal about whether the Trump administration can withhold law-enforcement grant money from Philadelphia to compel the city to assist with deporting immigrants. Thanks to a nick-of-time extension, I was able to attend the argument in person.

Here’s the just-posted link to the argument audio. (Here’s hoping the court chooses to post the video, too. [UPDATE: they did! It’s here.])

The panel was Judges Ambro, Scirica, and Rendell. Arguing for the government was Katherine Allen, a civil appellate attorney at the Department of Justice, and appearing for the city was Neal Katyal, a partner at Hogan Lovells and former Acting Solicitor General. Given all that, I expected an extraordinary oral argument, and extraordinary it was.

The argument was preceded by a comment by Judge Ambro that would seem baffling in some courts, but not here. Sounding a bit sheepish, he explained that the panel would actually be sticking at least roughly to the 30-minutes-a-side time limit. (Two of the judges had an event to attend afterwards.)  “Normally this panel’s M.O.,” he explained, “is to go on forever.”

Katyal is one of the most accomplished Supreme Court advocates alive, and I hadn’t seen one of his arguments before, so I was eager to watch him in action. I left with my jaw on the floor. To wit:

  • I’ve written before about the right tone for appellate argument, and how hard it is to achieve. In my view, Katyal’s tone was pitch-perfect throughout. One little example: he acknowledged up front that a particular point was the hardest part of his argument and then proceeded to defend it. (This is 53:52 through 56:30 in the audio file.) Sounds easy, but in the heat of the moment few lawyers strike that balance well.
  • A circuit panel argument may be small potatoes for a lawyer who’s argued three dozen Supreme Court cases, but you’d never have known it. He was emphatically not coasting on reputation and talent. At one point he referred to a point Judge Rendell had made during an oral argument the day before, and afterward he tweeted that he’d sat in on several Third Circuit arguments this week. That’s a concrete expression of commitment to the case and respect for the court. If a guy who was on TV a couple days before his argument isn’t too busy to prepare that thoroughly, what’s our excuse?
  • Katyal plainly went in with the goal of emphasizing that his positions had been adopted by the prior courts to have considered them. Lesser advocates would try to accomplish that goal with one sledgehammer swing, something like “the government’s frankly outrageous position has been completely and utterly rejected by every single court to consider it!” Katyal took a different approach. Instead of bombast, he used timing and elegant repetition, referring to the other courts’ rulings in his opening, his closing, and at his crescendo points throughout. David Frederick‘s superb book Supreme Court and Appellate Advocacy calls this “The Mantra,” and Katyal’s argument was an elegant model of how to do it effectively.

I could go on, but perhaps I sound like enough of a swooning teenager already. I haven’t talked about Allen’s argument here, but it was very high quality as well. If you’re an appellate lawyer looking to get better at oral argument, be sure to give this one a careful listen.

Judge Ambro closed the argument by observing how well both advocates had argued and what a privilege it was to have them, and I agree entirely.