Yesterday, Benjamin Gutman made his first appearance on the biggest stage possible. In his role as solicitor general of Oregon, Gutman argued in front of the nine justices of the Supreme Court on behalf of a coalition of a dozen states that sued over the president’s signature tariff trade strategy. The states argued that the U.S. Congress, not the president, has the power to impose and collect taxes under the U.S. Constitution. Gutman joins us to talk about the experience.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The U.S. Supreme Court heard oral arguments yesterday in what’s been described as the most significant case of its term. The central question is whether or not President Trump has the authority to unilaterally impose sweeping global tariffs, one of the centerpieces of his agenda. Twelve states, including Oregon and a number of small businesses, have brought suit, saying he does not. About two hours into the oral arguments yesterday, Chief Justice John Roberts invited a new lawyer to speak.
Justice John Roberts: Mr. Gutman.
Benjamin Gutman: Mr. Chief Justice, and may it please the Court. I’d like to begin by picking up with the exchanges with Justice Barrett …
Miller: That is Benjamin Gutman. He is a Solicitor General in the Oregon Department of Justice and the Interim Deputy Attorney General. Yesterday was his first time arguing in front of the highest court in the land. He joins us now. Welcome to the show.
Gutman: Thank you. Really glad to be here.
Miller: So as I just noted, you’d never argued a case before the U.S. Supreme Court, even though you have done a lot of high-level appellate work in the course of your career. What was it like to say those words, “Mr. Chief Justice, and may it please the court”?
Gutman: Well, I had practiced them a lot, so it’s a little bit surreal, it felt comfortable. Oral argument in an appellate court is sort of the same thing no matter what kind of court you’re arguing in. You’re trying to have a conversation with the judges about the issues that are on their mind. Some courts are bigger, smaller, some have more time to prepare before arguments, and some have more detailed questions, some don’t. But fundamentally, once I got rolling, it felt very familiar and comfortable. So that was nice.
Miller: When you were in law school, was arguing a case in front of the U.S. Supreme Court something that you dreamt of?
Gutman: No, actually, when I was in law school, I thought I wanted to be a law professor. I didn’t really think about being an advocate at all. But after law school, I spent a year working for a judge as a law clerk. It’s a very typical thing for people graduating from law school to do, and [I] started to think that, well, maybe this is something that I’d like to do. I still don’t think at that point I would have thought I was going to the Supreme Court, but you never know.
Miller: I’ve read that the lawyer for the businesses that sued the federal government, Neal Katyal, he was selected by a coin flip. How did you come to be the lawyer for this coalition of states?
Gutman: Well the lawsuit originally against these tariffs, brought by this coalition of twelve states, was led by Oregon and Arizona, and with support from the other states, but a lot of the heavy lifting on the legal work was done by our states. And as the case went on, it naturally became Oregon that was doing a lot of the legal work in connection with the appeal.
And so I was the lawyer who argued this case in the intermediate appellate court, the Federal Circuit, a few months ago for the coalition of states. When it got on the fast track to the Supreme Court, I don’t think there was much disagreement among our coalition that it made sense for me to continue with the case.
Miller: So from that moment on, what does preparation for oral arguments at the Supreme Court look like?
Gutman: Well, it’s definitely, it takes a village. This is not something that happens by yourself. The first thing that happens is that the parties prepare very detailed written briefs to the Supreme Court, and honestly, that’s 95% of the advocacy, and that’s what makes the court so familiar with the issues when we show up to argue them. That’s really the most important thing that we’re doing, and so I participated, I worked with our team on putting together those written briefs.
And then the rest of it is kind of an iterative process, but it’s essentially rehearsal. We do what we call moot courts, which are practice sessions, in front of a panel of lawyers who are pretending to be the justices, who do the back and forth that we would expect at oral argument, and the goal is to have those sessions be harder than anything you will actually face in court. This is something we do for a lot of our appellate arguments, but you do one, it goes well or it doesn’t go well, you learn some things, you think about things you might do differently. You work on your notes a little bit, you read a little bit more, and then you do another one, and then the process just iterates until the day of argument.
Miller: And is it as detailed as having one of the lawyers who you’re working with play, say, Justice Alito and ask questions or push you on things that you all are pretty sure that that justice is going to be focused on?
Gutman: It’s not quite at the level of asking people to role play in that way, but definitely the job of the people who are reading the briefs and then asking the questions at these moot courts, is to think about what are the issues that the justices might be concerned about, what are the issues that I’m concerned about just as an informed lawyer reading this case? What do I think, in particular, a justice who, I mean, one of the good things about arguing in the Supreme Court is we know a lot about what their legal philosophies are. And so, what do I think somebody coming from that legal philosophy might be interested in?
Miller: One of the points that I saw in the lead up to yesterday’s oral arguments and in the analysis afterward, was that some of the the key legal theories and approaches to jurisprudence on the part of of the conservative majority, that those were points that your side would be able to really focus on, and in a sense use those legal theories about textualism or literalism, and use it to your advantage. But that was what was said by outsiders. Is that true? Was that part of your approach for the last couple of weeks and going into yesterday?
Gutman: Yes, I think certainly to some extent. I mean the fundamental thing about arguing a case in the Supreme Court is you need to get to five, you need to find five justices who will agree with you, and not all of the same arguments might appeal to all of the justices. So, of course, yes, I spent some time thinking about what kinds of arguments might resonate with some of the justices that I thought whose votes we might need or whose votes might be up for grabs.
There’s a lot about our argument that is fundamentally conservative in a traditional sense. We’re arguing for restraint of federal executive power, of presidential power. That’s a value that many conservatives have expressed over the years. To the extent that the arguments that I could make might resonate with justices who have backgrounds or philosophies that go for that, that’s absolutely part of my job.
Miller: You had to wait for a while ‒ more than two hours ‒ before it was your turn to speak. First, we heard from the representative for the administration, and then Neal Katyal, who I mentioned, who is representing the business coalition. So for two hours and 10 minutes or so, what were you focused on and how were you using what you were hearing to figure out what you were going to talk about in your, it turned out to be much more limited time?
Gutman: Yes, the court did take the case much longer than it was expected. We were expecting an 80 minute argument and it went about double that length, which happens when the court has a lot of questions, and that’s good, that’s the reason we’re there, we’re not there to make speeches, we’re there to engage and to answer questions. What I am doing when I’m sitting listening there is trying to listen for what are the concerns that justices are expressing that I might be able to address or themes that they’re raising that I might be able to elaborate on or to pick up on.
So when the federal government’s lawyer was arguing, I was listening to, is he making points that it looks like some of the justices might be agreeing with that I have a response to? I will say a lot of the time I was sitting there, and I had notes in front of me of all the points that I might want to make in this case, and I just sort of kept ticking them off because I would hear a justice ask a question that reflected, they already understood what I might want to say about it and so, OK, maybe that’s not the most important thing for me to say.
When Neil was up there arguing, same thing, is there anything that he is saying that I might have a different take on or I might be able to elaborate a little bit more that he wasn’t able to fully get to? I had written out an introduction that I was planning to get up and say if nothing else in particular had come up to me, but by the time we were two hours in, it was clear that wasn’t actually the right approach. I just got up and started picking up where Neil had left off and trying to answer the last question that he had been addressing, so hopefully that was an effective approach for the justices who were already engaged in that.
Miller: I want to listen now to part of an exchange you had with Justice Kavanaugh, probably the part of your time at the oral arguments that got the most attention:
Justice Brett Kavanaugh: Mr. Katyal referred to common sense several times, and I want to pick up on Justice Barrett’s question because your interpretation of the statute, as she pointed out, would allow the president to shut down all trade with every other country in the world or to impose some significant quota on imports from every other country in the world but would not allow a 1% tariff. And that leaves, in the government’s words in its brief, an odd donut hole in the statute. Why would a rational Congress say, yeah, we’re gonna give the president the power to shut down trade? I mean, think about the effects, but you’re admitting that power’s in there, but can’t do a 1% tariff. That doesn’t seem, but I wanna get your answer, to have a lot of common sense behind it.
Gutman: I think it absolutely does because it’s a fundamentally different power. It’s not a donut hole, it’s a different kind of pastry.
Kavanaugh: And on that, on that power ‒ that’s a good one ‒ on that power though, and you’ve said this many times, and Mr. Katyal too…
Miller: All right, then he went on for another question. Was that a line you had going in because the donut hole argument was made, you had access to that line. Were you ready to talk about a different pastry?
Gutman: Yeah, I didn’t really. I’ll have to admit I didn’t think it would be such a laugh line, but this was something that the federal government had said in their reply brief, which was filed just a few days before the argument. They were saying that our understanding of the statute left this weird hole in it ‒ this donut hole ‒ and I had thought ahead of time about what made that analogy incorrect.
What made it incorrect is that the hole that they were identifying, which is the power to impose taxes on Americans, is just fundamentally different from everything that they were talking about. To say it’s just another kind of pastry maybe is a little bit glib, but I was really just trying to explain why this analogy that they were drawing, that maybe was a powerful image for some people, just wasn’t a good analogy. I didn’t think that it was gonna come off that glib, but I guess that it did. I wouldn’t have used it if Justice Kavanaugh or one of the justices hadn’t specifically referred to the donut hole.
Miller: I want to play a portion of another part of the oral arguments. This is an animated back and forth you had with Justice Alito, and he starts with the same basic question you talked about there with Judge Kavanaugh, and then it goes in different directions. Let’s have a listen:
Justice Samuel Alito: Well, I mean, the question is, why would Congress say you can impose a quota, you can impose a ban, but you can’t impose a tariff? And your answer, I gather, is because when a tariff is imposed, we’re suspect about what’s going on. We’re suspicious about what’s going on. We think that what the government is trying, what the executive is trying to do is to raise revenue, and that’s our business, right? That’s what it has to be.
Gutman: Yes, and we know that every other time that Congress has authorized the…
Alito: Well, you’re getting into a different argument. Then would you say the same thing if the measure is really about an emergency?
Gutman: Yes.
Alito: An undisputed emergency and a really dire emergency?
Gutman: Yes.
Alito: There, would you have the same suspicion?
Gutman: Yes, absolutely, and again I’ll refer back to Justice Jackson’s concurrence in Youngstown that emergency powers tend to breed emergencies. Look, Biden v. Nebraska, I think, is, says very clearly…
Alito: I really don’t think you’re answering the question. The question is, would you have the same suspicion when it is perfectly apparent from context that what the president is trying to do is to achieve a goal other than the raising of money?
Gutman: I think what I’m trying to say is that you have to read the statute the way that Congress would have understood it when it was enacted, not how it is used in any particular case. It may be used for very good reasons in a particular case, but the question is, would Congress have understood itself to be ceding this power with no limits, unlike every other tariffing statute, with no limit?
Alito: I know, I know that point. Let me ask you an unrelated question.
Miller: I wanted to play that extended exchange because he asks you questions, and he’s not the only one. It was a little bit more dramatic, but there are plenty of examples of this where the justices will say they want to get your thoughts or the other lawyers’ thoughts about something, but then they’ll interrupt, and it’s not always obvious to me that they’re listening to what you and the other advocates have to say in ways that show that they’re actually changing their minds.
The whole thing makes me wonder what you see as the real purpose of oral arguments. I mean, you had said earlier when we were talking that, about 95% of the advocacy is in the brief writing and filing and reading stages; you writing them, the justices reading them. I guess the short version of my question is, what’s the purpose of oral arguments?
Gutman: Well, I do think that there are probably a lot of cases where oral arguments don’t change any minds. The purpose of oral argument is to give the advocates a last chance to address anything that the court might have misunderstood about the case, about the issues, about even the facts of the case, the record, and so it can serve that purpose. You certainly will get questions from a justice or a judge who seems to have made up their mind, and sometimes they’re just testing to see if they feel like there is anything else out there to say that might change their mind.
You also will see, sometimes questions on these larger courts, where it seems like the question is less for the advocate and more an opportunity to try to make a point with one of their colleagues. There’s only so much you can do about that. I am of the view that oral arguments, and I’ve heard this from judges too, it doesn’t often change the outcome of a case. It sometimes changes nuances about how judges look at the issues. It might change how they write an opinion in the case, if they have a deeper understanding of some of the nuances, but in the public eye, it gets a lot of perception as the main event, and I think in practice, it is less so that.
Miller: Did anything really surprise you yesterday?
Gutman: I don’t think anything surprised me in the sense that these were all questions that I’d had in one of the many practice sessions that I had done. These were thoughtful, normal questions that one would ask, especially if one were skeptical of the arguments that we were making. If there was any surprise, it might have been that a couple of the justices ‒ Justice Alito was one of them ‒ seemed particularly interested in exploring some issues that the federal government had not raised in defense of these tariffs, maybe suggesting that they thought that the federal government had better arguments that the government had never made in this case.
That’s the kind of thing that comes up from time to time, but you don’t usually spend a lot of time at oral argument on that. So I wouldn’t say I was surprised, but maybe mildly interested that that’s where some of them seem to be leaning.
Miller: In various analyses that I’ve read in the last 24 hours, the consensus seems to be that between the three liberal justices and at least two ‒ getting to five ‒ and maybe even three of the conservative justices, it’s likely, so these commentators say, that the court will find that this particular law, this statute does not give the president the authority to unilaterally impose tariffs. That is the post-oral argument read. Do you share it?
Gutman: Well, I’m not going to make a prediction. I definitely have less objectivity about this than the other people who have observed the case and have listened to the argument, but I did think it went well, you certainly saw many of the justices with quite skeptical questions for the federal government. I’m pleased with how it went, and I’m optimistic about the outcome here.
Miller: Another point that many of those commenters have been making ‒ and this was both before oral arguments and after ‒ is that part of the significance of this case is that it could be the first time that this court has actually pushed back, pumped the brakes, on the president’s actions after some non-full rulings, but a whole number of times when they have said yes, you can go forward with your executive actions. Do you agree that if this does go Oregon’s way and then these other states and the small businesses, that it could mean a kind of new chapter for this court in its approach to the president?
Gutman: I think it would be very significant, yes, that to show that the court is going to enforce the rule of law and enforce limits on the president’s power. The president has a lot of power under our laws, but the president isn’t a king. The president doesn’t have all the power and this, like some of the other cases that Oregon has been involved in in the last several months, are about understanding the limits of what those powers are and it would be, I think, a very hopeful sign for the Supreme Court to be enforcing those limits.
Miller: Just briefly, although this is a big question, there’s been a lot of talk recently about how the public is losing trust in the Supreme Court. How much do you worry about that?
Gutman: I think it’s quite worrisome that the public is losing trust in the Supreme Court. The courts derive most of their authority from the fact that people believe that they are an institution that is going to enforce the law. The public perception is a problem. I have not lost faith in the courts and I am optimistic. I don’t always agree with what the courts do, that’s natural, but I am optimistic that we will get a decision here that reflects an honest assessment of their view of the law.
Miller: Ben Gutman, thanks very much.
Gutman: Thank you.
Miller: Benjamin Gutman is the solicitor general for the state of Oregon. He is the interim deputy attorney general for Oregon.
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