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Behind the Scenes: The Week Leading up to Trinity Lutheran Oral Arguments

By Jordan Lorence posted on:
October 17, 2017

Jordan Lorence, an attorney with Alliance Defending Freedom, worked with the team of lawyers led by David Cortman for his oral argument April 19 before the U.S. Supreme Court in Trinity Lutheran Church v. Comer. That case involves the State of Missouri’s denial of a grant to the church to reimburse it for a playground surface made of recycled tires—because of its state constitutional ban on aid to churches. This is the first part of a behind-the-scenes look at the preparations during the week preceding the oral arguments (read the second part here).

Thursday, April 13

12:30 pm: We are less than a week away from the oral arguments at the Supreme Court. David has been intensely preparing by arguing before a series of practice panels, which we call moot courts. Today, we finished a moot court in Washington, D.C., and David was about to fly home to Atlanta for the Easter weekend. The moot court went well. He knows his stuff. David seemed to be feeling good about things, too, telling us to enjoy our Easter weekend and our day off tomorrow on Good Friday. We will resume work on Monday for a final push to the oral arguments on Wednesday.

7:00 pm: After work, my family and I are shopping at Costco for food for our Easter celebration. I receive an urgent message on my phone from one of my fellow lawyers at ADF.

“Can you believe what the governor of Missouri did in Trinity Lutheran?”

“Uh, I did not hear. What did he do?”

A few hours earlier, the newly-elected governor had issued a press release, reversing the policy the state had defended in court for years that banned churches from participating in state grant programs, like this one involving recycled tire playground surfaces program. The governor admits it doesn’t affect the case. But what will the Supreme Court do with it now, on the eve of oral argument? This 11th hour move doesn’t fix the violation that has been ongoing for all these years, nor does it prevent them from going back to the old policy at any time.  But we certainly did not need or expect this last-minute curve ball. There goes our relaxing Easter weekend.

8:00 pm to ????? (late): Later that evening, David hastily assembles a group of four ADF attorneys to start researching the new legal issues that have suddenly arisen due to the governor’s actions. This is serious, because the state can try and claim that the case is now moot (that it has been resolved) and that fires a torpedo at the waterline of your case. It can sink it. If there is no longer a case or controversy between the State of Missouri and Trinity Lutheran Church, the Constitution requires the Supreme Court to dismiss our case. (The state ultimately takes a position that the governor’s last minute change does not moot the case.)   

The Supreme Court does not tolerate it when the party that won in the courts below suddenly reverses its position, and gives the opposing party what it wants. The Supreme Court has correctly ruled that one side in a lawsuit cannot abruptly change its position to stop the Supreme Court from hearing the case. At this time, we were trying to figure out what our legal position was that David would argue at the oral arguments, and whether we should submit a letter to the Supreme Court on this unexpected development. Neither side has briefed these specific legal issues, because they have never been part of the case. So, we are scurrying. We have a lot of research to do.

Rejected media talking point for this case: “The State of Missouri asserts tired legal arguments that fall flat.”

Steps I walked today, according to my phone app: 17,206 (Our office is not too far from the Supreme Court building, so I walked there to check out various things about the case.)

(Good) Friday, April 14

6:00 am:  I start on three research assignments from the list David has sent around. They all deal with esoteric questions of Article III standing and mootness. I fire up Westlaw and get digging.

Sometime later in the morning: The Supreme Court shows that it keeps on top of the latest news. The Clerk of Court requests “that the parties submit their views on whether this case is affected by the press release relating to access to Missouri grant programs issued by Governor Greitens on April 13, 2017.” Back to work. All four of us are working furiously on our research. Throughout the day, we circulate research, ideas, discussions, etc., on what we should do. One of our lawyers, Rory Gray, and his wife, are moving into a new house today. He hammers out research memos between moving and opening boxes.

Noon: I take a break from Mootness Mania and attend the beautiful Good Friday service at Truro Anglican Church. For the most part, I can concentrate on the significance of Christ’s death on the cross for our sins. But I find my mind wandering at times: “I need to read the Knox case about the repayment of union dues.”

Late afternoon: The research memos continue to flow among us. Emails ping pong back and forth. All are saying that our case is not moot. I and the others continue to work into the evening.

Rejected media talking point on this case: “Spare us from the claims that this case is moot. Those claims are inflated, and our responses will puncture them.”

Steps I walked today, according to my phone app: 6,661 steps (showing lots of time behind the computer).

Saturday, April 15

Morning: The focus today for the ADF lawyers is to research and write a draft of the letter to the Supreme Court, due Tuesday at noon. I work on my assignments. David is working on a new section to his oral arguments on why this case is still a live controversy in spite of the governor’s actions. When a Supreme Court oral argument is a few days away, the arguing counsel does not want to be developing a new argument based on new circumstances. I thank God that we have one more moot court scheduled for Monday, where we can test drive our responses before some experienced Supreme Court lawyers.

Afternoon: I complete my research projects for David and the other team members. I also work with my children to clean the house for our Easter guests, washing a lot of dishes as my wife prepares our feast for tomorrow. The house is looking nice.

I also notify the lawyers participating as judges in our moot court set for Monday of the actions by the governor of Missouri last Thursday, so they can be prepared to ask questions of David about whether the case is moot. It is odd that I cannot send them any briefing about the subject, because this new development happened so recently, so the parties have not briefed these issues.

Of course, they will also quiz him on the important religious liberty issues in the case: whether the State of Missouri can single out churches and categorically exclude them from even applying for the grants. The state is relying on a 2004 decision from the Supreme Court called Locke v. Davey, in which the Supreme Court allowed for some limited discretion—some “play in the joints”—in dealing with religious liberty cases similar to Trinity Lutheran.

Rejected media talking point about this case: “For the children of Trinity Lutheran, ‘play in the joints’ should not mean injury to their joints.”

Steps I walked today, according to my phone app: 5,646 steps (showing lots of time behind the computer, and that you don’t need too many steps to vacuum the floors).

Easter Sunday, April 17

I am in church when I feel the unmistakable vibration of an incoming email. Normally, I do not look at my phone during church, but we have this rare, ongoing legal emergency at the Supreme Court. It is an email from David Cortman at 10:33 am Eastern time. He has attached the first draft of the letter to the Supreme Court. But David, aware that today is Easter, places restrictions on when we can edit this draft. “Happy Easter. When you all get a second (don’t skip church or Easter dinner ;)), please review this.”

After church, and a glorious feast of lamb, Brussel sprouts, etc., a great Easter egg hunt with friends and relatives, I read the letter and send around my suggested edits to everyone else.

Rejected media talking point about this case: “He is risen! (but not because of a bouncy recycled rubber surface).”

Steps I walked today, according to my phone app: 4,533 (the Easter egg hunt felt longer).

To learn more about this case, visit the link below.
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Jordan Lorence

Jordan Lorence

Senior Counsel, Director of Strategic Engagement

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Strategic Relations & Training Team.

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