Joshua Rosenkranz on persuading U.S. Supreme Court Justices at oral argument in Kirtsaeng v. John Wiley & Sons

New York appellate attorney Joshua Rosenkranz of Orrick, Herrington & Sutcliffe shares how he persuaded two Supreme Court Justices to change their mind at oral argument.

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Well, so let me just back up and say what the case was about. It was really high stakes for manufacturers of all sorts of goods, including copyrighted goods. But the basic issue was is it illegal to buy something overseas, a copyrighted product, and import it into the United States without the owner of the copyright. The courts had – the lower courts had declared it to be illegal, copyright infringement, which means, you know, not just $60 billion worth of books and music and other sorts of copyrighted material, but when you think about it, virtually everything that you could buy overseas and import into the United States was subject to this rule – everything that has a wrapper that has copyrighted content on it, everything with instructions that are copyright, any electronic product with software, all of which is copyright protected. So the stakes the press reported to be in the trillions of dollars. So that’s just the setup.

How we won it. So this was a case in which there had been a controlled experiment right before we got into the case. The Supreme Court had taken the same exact issue in another case called Costco two years earlier, and it split four to four with one justice abstaining. And everyone assumed we were going to lose. Why? Because no court of appeals had decided in our favor, the government was against us, every major treatise was against us, and the ninth vote would have been Justice Kagan, who had recused herself from the earlier case because, as Solicitor General, she wrote a brief arguing against our position.

So, coming into this case, all the betting money was against us. The job of the advocate was to either persuade Justice Kagan that the position she wrote as Solicitor General was wrong or to flip one of the four votes against us – and you don’t know who it was; the Court just announces four to four – so to flip one of the votes against us without losing one of the votes in our favor.

So we stepped back from the case and rethought it from the ground up. And what struck me about the case was that it had been presented to the Court in a way that was different from how I thought it should be presented. This was a case of statutory construction – how you read the words of a statute. And in my experience, the way you win a case like that before the Supreme Court, first and foremost, is to come forward with the simplest, clearest explanation of what these words mean.

What my predecessor in the Costco case had done was to present a reading of the statute that was kind of convoluted and he was doing all sorts of somersaults. Why? Because the Supreme Court in yet another case earlier had written an opinion in which there’s a paragraph – it’s dictum – but there’s a paragraph from the Supreme Court saying that the simple reading of the statute is wrong.

So I sat down with my team and I said, “Okay, so we got two choices. One is go with the cleanest, clearest reading of the statute. The other is try to stay faithful to the Supreme Court’s previous words in that earlier case.” And I said to the team, “I bet on option one, and if we have to say to the Supreme Court, ‘You were wrong,’ we say to the Supreme Court, ‘You were wrong.'” And they were like, “You can do that?” I said, “Well, yeah. My instinct is that the Court wants to get the statute right, and if the Court is persuaded that we’ve got the better reading of the statute, the Court will rule our way and will give the back of its hand to things that it had said before.”

So the critical moment was in oral argument, which we prepared for. We hoped it wouldn’t come. If any of the justices were to ask, “So we said this in this case called Quality King. What do you make of that?” I hoped to avoid the question. Sure enough, Justice Kagan, our swing vote, asked me exactly that question, and you can hear it online.

[Audio plays]

Justice Kagan: Mr. Rosenkrantz, there’s that passage in Quality King which is, I think it’s fair to say, unfortunate to your position. Is your basic view of that passage that it was simply ill considered dicta that we should ignore?

Mr. Rosenkrantz: To put it bluntly, yes.

So that was my answer. It seemed to persuade, because we won not just Justice Kagan’s vote, but we also flipped one of the other votes to win the case six/three. And the proof of the pudding in the strategy was in the very end of the opinion when Justice Breyer grapples with this dictum in Quality King, and he writes: “The statement is pure dictum. Is the Court, having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”