Attorney’s visit to Benedictine sheds light on inner workings of nation’s highest court

November 19, 2015

Attorney Paul Clement (pictured left) answers questions from the audience with Center for Civic Leadership Director Phil Hardy, Ph.D.Lisle, Illinois ~ Drawing on his experience as former U.S. Solicitor General and one of the nation’s top attorneys, Paul Clement took more than 200 faculty members, students and guests up the 36 marble steps and onto the floors of the U.S. Supreme Court Tuesday evening during a lecture in the Goodwin Hall Auditorium at Benedictine University.

Clement’s presentation, “Lawyering in the Roberts Court: Ten Lessons from Ten Years” enlightened audience members to some of the big-picture conclusions he’s drawn while arguing more than 75 cases (more than any attorney since 2000) before the high court. His experience spans both aisles of the court, supervising and conducting litigation on behalf of the United States government as a solicitor general from 2005 to 2008, and litigating major constitutional challenges against the government as a current partner with the law firm of Bancroft PLLC.

Among the many lessons he learned is the justices' unanimous belief that they have the competency to decide any constitutional issue that comes before them – even decisions involving certain separation of powers disputes previous courts have refrained from adjudicating.

“What this shows is there is no issue, no matter how contentious, no matter what the implications might be for diplomacy or the like, that the Robert’s Court (referring to the Supreme Court presided over by Chief Justice John Roberts) thinks it does not have the ability to decide,” Clement said.

Other lessons Clement has observed include:

• The tendency for the court to announce up to a year in advance the consideration of overruling a past precedent.

• Inequities between justices and the time they dedicate to interpreting federal statues vs. constitutional issues.

• When it comes to purely free speech issues, all justices are universally pro First Amendment.

• When it comes to issues of religious liberty, all justices are very solicitous.

• While the Roberts' Court has been noted as a pro-business court, there are some particular cases justices have sided against business.

When describing the process of oral-arguments, Clement explained that it isn’t full of flowing rhetoric like in a fictional courtroom drama or some political debates on television. Attorneys have about 60 seconds for opening remarks, followed by a series of pointed questions from justices regarding the implications of each case, he said.

“There has literally almost never been a court that is more about asking questions of the advocates as part of the process of arguing cases,” Clement said.

He noted that the Roberts' Court has not always leaned the same way politically, and cited a study revealing a major shift to the left during the last term which included such hot-button rulings on same-sex marriage and the Affordable Care Act.

“The results were really striking,” Clement said. “Using the same methodology they’ve used for years, these political scientists determined the last term was the most liberal term of the Supreme Court since 1969.”

Clement asked people in the audience to consider the meaning and purpose of Supreme Court decisions, pointing out that of the 10,000 cases the court is asked to hear each year – roughly only 75 are selected.

“The justices don’t want to just correct errors,” Clement said. “They actually want to use a case as a vehicle to set a national rule on some issue of tremendous national importance.”

Kellen McCullum, a sophomore Political Science major, said he felt privileged to hear about what it is like to work as an attorney in the nation’s highest court.

“It was a rare opportunity for insight from a prominent individual into one of the most revered legal occupations in this country,” McCullum said. “Clement was extremely intuitive and down to the point regarding his delivery. There was no doubt regarding his knowledge or experience, considering his impressive list of credentials.”

A distinguished lecturer at Georgetown University Law Center and senior fellow at the university’s Supreme Court Institute, Clement was selected by the National Law Journal in 2013 as one of the “100 Most Influential Lawyers in America,” and named the “2012 Lawyer of the Year” by the Bar Association of the District of Columbia.

He was invited to speak at Benedictine as part of the University’s nonpartisan, nonprofit Center for Civic Leadership (CCL) Speaker Series, which seeks to bring dynamic speakers to campus so that students and the larger community can fully engross themselves in multiple issues and topics of public concern.

For future events sponsored by the CCL and the College of Liberal Arts at Benedictine University, please visit ben.edu/ccl.

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Benedictine University is located in Lisle, Illinois just 25 miles west of Chicago, and has branch campuses in Springfield, Illinois and Mesa, Arizona. Founded as a Catholic university in 1887, Benedictine enrolls 10,058 students in 56 undergraduate and 20 doctoral programs. Forbes magazine named Benedictine among "America's Top Colleges" for the fifth consecutive year in 2015 and the University's Master of Business Administration (M.B.A.) program is listed by Crain's Chicago Business as the fifth largest in the Chicago area in 2015.

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