An Old Hand At Court Gears Up for Battle
Tuesday, March 18, 2008
Here's how veteran Supreme Court advocate Walter E. Dellinger gets ready for a big case:
Three dozen lawyers are waiting for him in a conference room, but Dellinger isn't in a hurry. In his 11th-floor office at O'Melveny & Myers, he meticulously cuts up his notes and tapes key sections into a manila folder. As he works, he grabs a black iPod, punches up "Ophelia," a 1970s rock song by the Band, and sings along: "Mama, you know we broke the rules!"
"How could this not put you in a good mood?" Dellinger, 66, exclaims, then dons a patterned tie with his navy suit and troops down the hall to meet his colleagues. Taking his position at a lectern, he's ready to go. He opens his folder.
"May it please the court . . . "
Dellinger and the District government's massive legal team were beginning their final practice session before today's historic appeal to the U.S. Supreme Court to uphold the city's 32-year ban on handguns. Their planning has been exhaustive: a year of work, a 15,000-word brief, countless pro bono hours.
Now the city's fate in the District of Columbia v. Heller rests in the hands of Dellinger, a garrulous former acting U.S. solicitor general who will have 30 minutes to explain to the nine justices why the District's gun ban is not inconsistent with the Second Amendment. The court has not ruled on the right to bear arms since 1939, and the case has drawn national interest as a constitutional bellwether that could affect gun control laws across the country.
A longtime constitutional law professor at Duke University, Dellinger is known as a folksy, liberal-leaning academic who would love to engage in a lofty philosophical debate over what the framers meant: Is the right to bear arms reserved for individuals or just a "well regulated" militia? But he knows the case could be won on a more prosaic point. One of the city's three arguments is that its law, which allows shotguns, is reasonable no matter how the justices feel on the first question.
"What I don't want to happen is for someone to say, 'The best historical argument ever offered to the court was Walter Dellinger's losing argument,' " said Dellinger, who has a 13-5 record in cases before the high court. "The academic and constitutional debate is fine, but our job is not to win a historical debate. It is to get our client's law upheld."
Dellinger, who had been advising on the case since city officials appealed a lower court's overturning of the gun ban last year, did not know until January that he would be making oral arguments. He was not sure he even wanted the job when Interim D.C. Attorney General Peter Nickles fired the city's lead lawyer, Alan B. Morrison, in an unrelated dispute, and asked Dellinger to step in. Dellinger was already juggling two other Supreme Court cases, including representing Exxon's bid to reduce punitive damages for the 1989 Exxon Valdez oil spill.
But if anyone can rise to the challenge, friends and colleagues said, it is Dellinger, who got his first job as a high court advocate in 1989 after bluffing through an interview.
"He's very engaging and a lively advocate," said Richard Lazarus, a Georgetown University law professor. "He's more expansive in his arguments, because as an academic, he tends to see the big picture."
On a recent Saturday, Dellinger, in an oversize blue cable-knit sweater, khakis and old tennis shoes, was in his office researching trigger locks. Two thick blue binders titled "D.C. v. Heller" rested on a desk, along with copies of "A Well Regulated Militia" by Saul Cornell and Supreme Court Justice Antonin Scalia's "A Matter of Interpretation."