Michael Dreeben’s 106th Supreme Court argument will be a bit different from the first 105.
The former deputy solicitor general’s Wednesday appearance will mark the first time he takes the high-court lectern for a client other than the federal government.
Dreeben left the Justice Department in 2019 after a renowned tenure in which he developed a particular expertise arguing criminal cases and is now a partner at O’Melveny and Myers. On Wednesday he’ll represent the city of Austin, Texas, in a First Amendment dispute over billboard regulation.
Dreeben spoke to Bloomberg Law ahead of his high-court return about what’s different—and what’s not—about arguing in private practice after representing DOJ for three decades.
“It is a shift,” said Dreeben, who started as an assistant to the solicitor general in 1988 and became a deputy in 1994.
“You have a very different frame of reference representing the United States,” Dreeben said. “Because in the government, the primary framework for thinking about arguments was the institutional interests of the United States and how whatever our office said to the court, or I personally said to the court, could have an effect on the government writ large.”
At the same time, he said, he approaches law practice “pretty much the same way, which is that you have to have positions with integrity and credibility, and you have to believe in the adversary system.”
Though he no longer works for the government, Dreeben is still advocating for a government entity in City of Austin v. Reagan National Advertising of Austin. At issue is the constitutionality of allowing digitization for on-premises but not off-premises signs.
“I am representing a public institution which has a responsibility to vindicate its own rights and protect the rights of the citizens of Austin, and I like the balance of interests that that reflects,” said Dreeben, who also served as counselor to Robert Mueller’s investigation into alleged Russian interference during the 2016 presidential election.
Dreeben got involved in the Austin case after noticing the billboard companies had waived their opportunity to respond to the city’s high-court petition. He thought the justices would ask for a response. “I called up the city of Austin and offered to help with a reply brief if the court did call for a response,” he said. “And the court did that, and so we then jumped in to help with the reply brief in support of the petition, and, after it was granted, stayed on to do the merits work.”
He emphasized it’s a collaborative process, not unlike his work in the SG’s office, which he called “probably the single best-equipped entity to prepare somebody for arguing in the Supreme Court on the face of the earth.”
Dreeben, who serves as co-chair of O’Melveny’s white collar defense and corporate investigations practice, said he has worked closely with the city of Austin and his co-counsel Renea Hicks “has been deeply involved every step of the way.”
“The collaboration with the client, with co-counsel, integrating all the best ideas, and trying to craft the best possible brief is very much of a piece of the kind of work that I would do in the government,” he said. Joining Dreeben on the briefs from the firm are Jeremy Girton, Rachel Chung, and Heather Welles.
He’ll still be collaborating, in a sense, with his former office at Wednesday’s argument. Benjamin Snyder, an assistant to the solicitor general, will argue as an amicus backing the city. Facing off against Dreeben is another SG-office alum and leading appellate lawyer, Kannon Shanmugam, head of the Supreme Court practice at Paul Weiss.
Criminal Return Coming
Dreeben will argue a criminal case against his old office next month in United States v. Taylor.
He doesn’t view the enterprise entirely differently, even though he’s on the other side of the “v.” The mission, he said, is the same: “Bring the best arguments to the court’s attention so that the court can decide, and argue with credibility. And I feel the same about representing private clients and criminal defendants.”
He noted that his experience representing the government for decades “has made it very easy for me to understand how the government is going to see a criminal case and what arguments they are going to deploy.” He said he knows “where the bodies are buried and what vulnerabilities the government’s position may encounter.”