A Supreme Court career

LINDSAY MAST, HOST: Today is Tuesday, January 21st.

Thank you for turning to WORLD Radio to help start your day.

Good morning. I’m Lindsay Mast.

MYRNA BROWN, HOST: And I’m Myrna Brown.

Coming next on The World and Everything in It: a profile of a celebrity in the legal world. Attorney Paul Clement has been practicing law for 33 years. He’s a founding partner at Clement & Murphy, a boutique appellate practice in Alexandria, Virginia.

MAST: But he’s perhaps best known as the man who has argued more than 100 cases before the U.S. Supreme Court. Legal correspondent Jenny Rough recently talked with Clement about his life’s work.

JENNY ROUGH: It’s hard to believe now, but Paul Clement almost didn’t become Paul Clement esquire—the licensed attorney.

PAUL CLEMENT: I actually came very close to not going into the law.

He was accepted to law school but decided to pursue a one-year Master’s program in economics overseas.

CLEMENT: So I had until about the first of the year to decide whether to give up my spot in law school and pursue a Ph.D. in econ, or to just do a Masters and then go to law school the following year.

He chose law.

Studying at Harvard sparked a specific interest in the Supreme Court.

CLEMENT: As soon as I got to law school and just started reading Supreme Court cases, which you do a lot of. It just seemed like, well, the Supreme Court, they get to decide the rule for everyone. Trials are really interesting. Court of appeals are interesting, but they get overruled by the Supreme Court. But the Supreme Court is the one who sets the rules.

In 1993, Clement became a law clerk to Justice Antonin Scalia. Clement says Scalia preferred to talk things out rather than require his clerks to write lengthy memos.

CLEMENT: If you had an issue on a case that was bothering either you, or the judge, or the justice, you walked in, you talked about it, you hashed it through.

Clement quickly learned he couldn’t be afraid to mix things up with the legal giant.

CLEMENT: Which I think really helped me later in my practice, because once you’ve disagreed with Justice Scalia over a legal issue in chambers, like what’s left to be intimidating in the law, right?

In 2005, President George W. Bush nominated Clement to become Solicitor General. At his confirmation hearing, he introduced his wife, Alexandra, and his sons.

CLEMENT: when I was studying law up at Harvard, Alex was across the Charles River at the business school earning her MBA. So every day that she allows me to practice law outside the home while she stays home with our three boys is a personal sacrifice and an indulgence of my interests, for which I’m eternally grateful.

His sons have since grown up, and Clement has moved on to private practice. But as the Solicitor General he represented the federal government at the Supreme Court. Still some people get confused about that role.

CLEMENT: When I was Solicitor General, I would joke, I’m not the person who puts warning labels on cigarettes. That’s somebody else.

His quick-witted side comes out in court, too.

For example, during last month’s oral argument in an environmental case, the discussion touched on what the legal test should be.

CLEMENT: If I could give you a 10-word test that took care of every hard case, they’d give me tenure at Harvard.
[Laughter]

JUSTICE ELENA KAGAN: I’m sure they’d give you that anyway!

[Laughter]

That’s Justice Elena Kagan who is—of course—the former Dean of Harvard!

Clement is known for his easygoing style when he appears before the justices. He makes his points forcefully, but he uses everyday language.

Clement says the justices’ questions don’t tend to take him by surprise.

CLEMENT: I think if you are caught completely off-guard, the only right answer is to say I don’t know, or that’s just not something we’ve considered. I’m not sure if I remember a moment where I was caught completely off-guard. Though by saying that out loud, it’ll probably happen to me in my next argument.

And what about not-so-funny moments?

Like during oral argument in the 2022 case, Kennedy versus Bremerton School District. Clement represented high school football coach Joe Kennedy who wanted to pray on the field after games. And Justice Sonia Sotomayor came up with this hypothetical.

JUSTICE SONIA SOTOMAYOR: Why can’t the school fire a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray.

CLEMENT: If somebody wants to have sort of a Nazi emblem but it’s not religious.

SOTOMAYOR: Assume it’s religious.

CLEMENT: But if it’s not religious—

SOTOMAYOR: Assume it’s religious.

CLEMENT: I’m happy to assume it’s religious. If it’s religious, that might be one of the rare cases where you question the sincerity of the religious belief because I’m not really aware of that religion myself.

In 2023, the Catholic Information Center honored Clement for his advocacy work in the service of religious freedom. During his acceptance speech, Clement made this observation:

CLEMENT: If the Court confronts an idiosyncratic religious practice that doesn’t run counter to secular dogma, like the length of a Muslim prisoner’s beard, the religious adherent wins 9 to 0. But if the Court confronts a claim that interferes with the right to contraception or abortion, or some other secular dogma, the Court divides sharply and religion is blamed for the divisiveness.

That’s part of what makes the job difficult.

And it’s a job that requires long hours of preparation. Clement says he spends nights and weekends getting ready for every case.

CLEMENT: For a Supreme Court argument, you can’t prepare too much. I take it every bit as seriously and work every bit as hard as I did for my first argument. The central component, or a central component are to do moot courts.

Moot court is a practice session that simulates court proceedings. Clement does at least two per case.

And when it comes to the real moment, he still gets the jitters.

CLEMENT: I’m on record as saying if I ever stop getting nervous, I’ll just go and do something else. If you’re not nervous before arguing a case in the Supreme Court, then you’re not aware of what you’re doing. It’s a pretty awesome undertaking. You’re facing nine incredibly smart justices who are all asking questions, many of which aren’t designed to highlight the best features of your case.

After so much preparation, he sometimes feels the temptation to turn on a football game.

CLEMENT: It’s really not in your client’s best interest or the court’s best interest for you to just sort of kick off and watch the football instead of finishing your preparation. And those nerves are part of what keeps you going.

At the end of my interview, Clement’s assistant walked into the conference room and handed him a stack of papers for his next meeting, but he answered one more question: Does he prefer to represent the petitioner or the respondent?

CLEMENT: Oh, I think I like being the petitioner better because you get that rebuttal.

And with that, he had the last word.

Reporting for WORLD, I’m Jenny Rough in Alexandria, Virginia.

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