BONUS: Prepping for a Supreme Court Hearing Starts at Georgetown


​​​​​​​​​​​​​​​​​​​​Aired October 27, 2022

In this bonus episode, Jess Ellsworth drops by the podcast to talk about how attorneys prepare for an appearance before the U.S. Supreme Court. She also describes the significant public service role that the Moot Court Program at Georgetown University’s Supreme Court Institute plays. Ellsworth is a partner at the Washington, DC law firm Hogan Lovells, which was instrumental in preparing the higher education association community’s amicus brief in the upcoming hearing on the use of race in college admissions.

Here are some of the links and references from this week’s show:

ACE Leads Nearly 40 Associations Urging the Supreme Court to Reaffirm the Legality and Value of Race-Conscious Admissions

Moot Court Program at Georgetown Law

Also listen to this week's main episode:

What to Watch for in the Oct. 31 Supreme Court Hearing on Race in College Admissions


 Read this episode's transcript

​Jon Fansmith: Hello, and welcome to this bonus episode of dotEDU. If you've listened to the main podcast this week, you know that ACE's general counsel, Pete McDonough, and I discuss the upcoming US Supreme Court hearing on race and college admissions, which is scheduled for October 31st. If you haven't, go listen now. We thought it would be fun to get into the nuts and bolts of how a lawyer prepares for appearing before the Supreme Court. Whether it's a first-time experience for a lawyer or the 50th time, there's a lot that goes into it. Including during the moot court phase of preparing, which is basically a simulation of the real thing to give lawyers some practice. In fact, some of that practicing is facilitated by an ACE member right here in D.C.

Joining us for this bonus brief is Jess Ellsworth, who is a partner with the Washington D.C, law firm, Hogan Lovells. Hogan Lovells has been instrumental in helping ACE prepare for many of our Supreme Court amicus briefs, including the one we submitted for next week's hearing. Notably, for this discussion, while she was in law school, Jess was named Best Oralist by then-Supreme Court Justice David Souter in the Harvard Law School Ames Moot Court competition. Welcome to our podcast, Jess.

Jess Ellsworth: Thanks so much, Jon.

Peter McDonough: Jess, before you kick this off, I just want to say thank you as well for that great work you've done on ACE's amicus brief that was joined by 38 other higher-ed associations. And for the folks listening in, a fun fact. Jess, being a law partner at Hogan Lovells, means that she is also a partner in the Appellate Advocacy practice that current Supreme Court Chief Justice Roberts was in, when he was not once, but twice a partner at Hogan Lovells. He served in-between in government service, and then succeeded again to the Supreme Court bench after his second stint there. So Jess, I'll turn it over to you, as we help folks understand what goes into preparing to come before the Supreme Court, and present one's position, and answer their questions.

Jess Ellsworth: Thanks, Peter. I'm happy to be here and spend a little time thinking about this with you all. Getting to do an argument in the Supreme Court is something that a lot of advocates spend months thinking about, how they're going to do it. I mean, this case, for example, the Harvard case was filed in February of 2021. So, this has been a very long-time coming. And I think whether it's your first argument or it's your 50th argument, there are some aspects of the preparation that are going to be consistent across-the-board. I want to just highlight a few of those.

The first is that although you'd like to think you're really going to be answering the Justice's questions, what you really want to be doing is using the Justice's questions as a sounding-off point to make the points you want to make. So in other words, their questions are really an opportunity for you to highlight the five or six key points that are most critical for your side to get across. So one of the things that lawyers do in thinking about the argument and in approaching moot courts in particular is figuring out how to use a question to get a particular answer out there that they think is important for the Justices to hear. And it may not always be the Justice who asks the question that you're directing your answer to, but for some reason, there's some ear up there that you want to hear the answer that you're giving. So, that's the first thing that I think people think about.

I do want to touch on the moot courts, and as John and Peter mentioned, Georgetown University is one of the most prominent hosts of Supreme Court moot courts. Ones that every advocate in every case is very eager to try and do. Moot courts are a chance to get together panels of members of the Supreme Court Bar and really do a dry-run of your argument, and see where people think your weak points are. You can test out answers, you can test out introductions, and really get some candid feedback. If there are particular swing justices in a case, you can look to host a moot court that involves some former clerks from those justices, who might have some closer insights into how those particular Justices think about a given issue or a given precedent that could be useful in preparing. So, moots are very much an important part of the strategy.

Peter McDonough: So you mentioned Georgetown, and as a double Hoya, undergrad and law school, I'm thrilled to hear about the fact that there's a public service element to what Georgetown is doing in this regard. How do you sign up for that? What happens? I find out that I've been asked to argue on behalf of a party at the Supreme Court. Do I call up the dean? What do I do there?

Jess Ellsworth: So really, there's often, in many cases, a race, the minute cert is granted, for one advocate or the other to get an email into the Supreme Court Institute asking for the Georgetown Moot Court. It's on the list we have for our associates of what to do upon grant of certiorari, and it's really number-one on that list, is try to secure the Georgetown Moot Court. In some recent cases, Georgetown has actually hosted both sides in the last couple years for the more high-profile cases. And I think that's a credit to Georgetown, and how well-respected and regarded these moot courts are that Georgetown hosts. And I can tell you, from some involvement in a case I had earlier this fall, Georgetown is very dedicated to making sure that the public service aspect of in terms of its students is part of this process.

So Georgetown does allow students to sign non-disclosures and then attend the moot court, and I was involved in a case earlier this year where there were literally dozens of attorneys who wanted to attend for the various parties. And we got a very nicely-but-sternly-worded email from the head of the moot court telling us that, given the number of seats that must be reserved for Georgetown Law students, we were limited to a certain number of attorneys who could attend. And the rest of us could watch by Zoom. Which I really thought was, for Georgetown, a great way to make sure that their students are getting the benefit of these, as well as the advocates.

Jon Fansmith: Right. Because I assume these are very secretive proceedings and things like that, but there's a group of students who are brought. Is there no concern about the arguments being previewed before an audience? How does that work? As somebody who's totally unfamiliar with this.

Jess Ellsworth: Yeah. So all the students who attend do sign an agreement that they won't talk about it, and the confidentiality is stressed at the beginning of the moot session. And frankly, as lawyers, we take our obligations to confidentiality seriously, and I think law students do as well. I don't think it's ever, to my knowledge, been an issue. But it is really a great thing for the students to get to see advocates in action, and get to see these arguments close-up.

Peter McDonough: So, what do we expect on Monday? Do we expect intensely-prepared, almost seamless answers to every question by a Supreme Court Justice? Or is it inevitable that all of that preparation nonetheless leads to a moment where the advocate is saying to herself or himself, "Boy, I didn't see that coming"?

Jess Ellsworth: I think it's a rare moment that the advocate is saying, "I didn't see that coming." Particularly, with as seasoned an advocate as you have here, arguing for Harvard. I just, I think if there was a question that someone didn't see coming, they would pivot to one of those five key points that I said they wanted to have at top-of-mind, and figure out a way to answer the question with one of those. That is something that people spend a lot of time, in preparation, figuring out how to pivot. Because there's going to be some questions you don't want to answer, you don't like the answers to, you know are not your strongest points to make. So knowing how to and planning how to do a pivot to something that you want to be spending your 20 minutes talking about, or 30 minutes if you're the lawyer for the other side, that's something that's part of the preparation as well. Practicing those pivots.

Peter McDonough: You mentioned Harvard's lawyer, and I think that's because it's Seth Waxman, who many of us know to have been a solicitor general of the United States. But I'm not sure that everybody listening in even knows what the solicitor general or Solicitor General's Office is, or where it is, or what it does. So maybe a few words about that, and I'd be curious about your impression as to whether that really does give one a leg-up in being able to step before the Supreme Court, if you've been in that role.

Jess Ellsworth: Absolutely. So, the Solicitor General's Office is the part of DOJ that advocates for the United States before the U.S. Supreme Court. So the attorneys who work in the Solicitor General's Office have more experience arguing in that court many times than lawyers in private practice, because it's what they do day-in and day-out. There are a lot of members of the Supreme Court Bar who cut their teeth on Supreme Court arguments in the Solicitor General's Office. You mentioned earlier Chief Justice Roberts. That was certainly where he spent a lot of time as an advocate. Seth Waxman was there. One of the co-heads of my group, Neil Katyal, was there as well. And that is, I think, a launching point for many young advocates in getting Supreme Court arguments.

As a party before the court, having the SG argue on your side is frequently seen as very important. If you can get the SG to come into a case on your side. They are viewed sort as the 10th Justice, is the way the SG's Office has been described, because of the kind of credibility that they bring to their arguments. And the weight of the United States on your side, in many cases, is something that everyone is eager to have. Certainly, the universities in these cases will have the SG arguing, and I'm sure the SG will do a great job. The downside of having the SG argue as well is, you have to split your time. They give the same amount of time to both sides of the V. So if the solicitor general is arguing on your side, then you, as the advocate for the party, have less time than the advocate for the party on the other side.

Jon Fansmith: So if the solicitor general were on your side, as part of the moot process, would you present in partnership in the moot court? Is that how it would be practiced?

Jess Ellsworth: So someone from the SG's office often will attend the Georgetown Moot, and you can invite them to other moots that you may hold as well. The SG's own internal mooting process is very confidential, and they typically do not invite private parties to attend. To the extent they do invite you to attend, they don't invite you to attend their discussion afterwards. So you might get to listen to the moot part, but not participate in any of the discussion.

Jon Fansmith: I'm curious, Jess, you mentioned the five or six key points. Obviously, you have great experience with this, and familiar with others who do. Is it common that, after the moot process, when you're getting that feedback, that there's a substantive revision of the way you approach the case or the points you try to raise? Or is it more they're sort of putting a fine point or sharpening certain arguments?

Jess Ellsworth: I think the most substantive revisions typically come to your introduction. So, the way the Supreme Court is doing arguments now is that you get a very brief uninterrupted period at the beginning of the argument. I have certainly seen and worked with lawyers who have tried out four or five different ways of approaching that uninterrupted period to try and see where it leads them in terms of the first questions that they get, what kind of setup it gives to the answers that are going to follow. So I think you're more likely, throughout the mooting process, to revise that introduction. Your five key points, there may be some nuance in how you're presenting them when it comes to game day. But along the way, you're going to have an idea of what those five points are roughly going to be.

Jon Fansmith: That seems very fascinating, I have to say, as somebody who, when Pete first raised this idea, I had sort of heard of moot courts. But particularly at this level, and the stakes involved in presenting before Supreme Court, particularly on the kind of issues we're talking about, it is a really fascinating insight. I really appreciate you just taking the time to share that with us. I guess the only way you'll get to experience it personally is if you become a member of the Supreme Court Bar or attend Georgetown Law. So strong recommendations to our listeners to pursue either of those paths, if they appeal to them. I'm sure it's quite easy to do both. But Jess, before we go, anything you'd like to add before we sign off?

Jess Ellsworth: So I do have one closing thought, which is that in a case like this, where an advocate is pressed for time to try and answer questions, having amicus briefs from voices that the court is interested in hearing about and being able to point to those briefs is extremely important. Here, I think the ACE Brief, which was joined by dozens of other higher-ed associations, gives the advocates for Harvard and UNC an opportunity to point the justices to that brief for a credible and trustworthy view from, across-the-board, the spectrum of universities and colleges in the country. That's extremely beneficial for the Justices and the advocates, and it's a credit to ACE to have led that effort

Peter McDonough: We appreciate, Jess, the hard work that you and your colleagues put into that. Thank you.

Jon Fansmith: Jess, thank you so much for taking time to join us on this bonus episode, this brief bonus episode of dotEDU. And thanks, everyone, for listening.

Sarah Spreitzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcast, Spotify, Stitcher, or wherever you listen to your podcasts. For show notes and links to the resources mentioned in the episode, you can go to our website at Thank you so much to all of you for listening.​

About the Podcast

​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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