Arnold & Porter’s Kedem Talks SCOTUS-Argument Prep Amid Covid

Allon Kedem is less than two months away from arguing on the first day of the Supreme Court’s new term and he doesn’t know if he’ll appear in person or remotely.

Kedem, an Arnold & Porter partner representing a pro bono client fighting a mandatory minimum gun sentence, said he is prepared to do either, but would prefer to share the courtroom with the justices.

“For both practical and emotional reasons, I would love to see the court return to in-person arguments,” said Kedem, a former assistant to the U.S. solicitor general, who joined the firm in 2019. “But obviously the most important thing is that they be able to do so safely.”

The Supreme Court has conducted arguments by phone since May 2020 due to the pandemic and hasn’t given any indication of its plans once the term begins Oct. 4.

The Covid delta variant adds a new wrinkle. Some federal appeals courts that had begun scheduling in-person arguments have recently shifted back to remote proceedings. That means Supreme Court advocates like Kedem preparing for fall arguments have no choice but to be ready for both scenarios.

The U.S. Court of Appeals for the District of Columbia Circuit announced Aug. 13 that it will hold its September and October sessions remotely, citing “the current circumstances relating to the COVID-19 pandemic and the latest public health guidance.”

Kedem, who clerked for both Justices Anthony Kennedy and Elena Kagan, has argued 11 times before the justices. His last was in 2019, while he was still in the solicitor general’s office.

The Washington-based lawyer has argued remotely in other courts and has helped prepare other lawyers for high-court cases during the pandemic. One of the differences being remote, he noted, is “you can create a setup of your own choosing, where you have in the room with you only those people you want to be able to consult in a pinch, or you can communicate with them electronically via instant messaging or email.”

Lawyers can adopt different strategies for arguing Supreme Court cases remotely, where the justices have been asking questions in orderly fashion, for a set period of time, one after another. The court’s in-person arguments had become freewheeling affairs, with justices jumping on top of the advocates and, sometimes, on top of one another with their queries.

“Some advocates feel like it is easy to evade difficult questions in the format where the questions go one at a time, because you can essentially just filibuster,” Kedem said. “Whereas if it’s the traditional argument in person, they can ask as many follow-up questions for as long as you can try and duck, and the longer you do it, the worse it looks for you.”

Arnold & Porter represents William Wooden, who is challenging his sentence under the Armed Career Criminal Act, a frequently-litigated federal law. If the justices continue to live-stream audio, Kedem wants Wooden to be able to tune in from the low-security facility at which he’s being held in Forrest City, Arkansas.

And as the arguments have gone remote, so too have the moot-court preparation sessions, where other lawyers act as the justices to simulate the real thing. Those sessions will likely start next month for Kedem.

“l like the first moot to be at least a week and a half before the argument, if not more,” he said. “I was limited to two moots at the SG’s office and there’s no such limit now that I’m in private practice. So I will likely do significantly more than that.”

At this point in the process, he’s doing a “pre-mortem,” gaming out the most plausible way he could lose. “It allows you to break out of the tunnel vision that lawyers sometimes get, where they focus on seeing a case a particular way,” he said. “The exercise is really helpful, I’ve found, for making sure that you are not missing something.”