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How a deputy Idaho attorney general hit a home run in arguments at the U.S. Supreme Court

On a cold January morning early this year, a week before the Super Bowl, Carl Withroe woke up and started talking to himself.

It was 4 a.m. and he was in Washington, D.C., getting ready to argue a case before the U.S. Supreme Court.

Withroe is a deputy with the Idaho Office of the Attorney General. Assistant Chief Deputy Brian Kane was in town as well, tasked with stepping in if needed and otherwise helping with the preparations.

Withroe felt calm the morning of the oral arguments – which was strange, since he’d never taken a case to the nation’s highest court before – but he wanted to be sure he had his opening statement memorized, so he walked from his hotel to the National Association of Attorneys General across the street.

“I was using a conference room there,” Withroe said in a recent interview. “I knew what I wanted to say. My aim was to get the delivery down pat. I walked around the room, delivering the remarks over and over and over.”

He imagined questions the justices might ask and responded to them out loud. He considered texting Kane, telling him he was sick, but decided he might not see the humor in that. He wondered if people would think he was crazy, seeing him walk in circles talking to himself.

Then it was game time.

LIKE A GAME AT AN ARENA, YET INTIMATE

For attorneys, taking a case to the Supreme Court is the legal equivalent of the championship match. They may have lost at the district or appellate court level, but they made it into the finals, where it’s sudden death, win or go home, while facing nine of the sharpest legal minds in the country.

With its 44-foot-high ceiling and seating for more than 250, the courtroom also lends itself to sports analogies.

“It’s almost like an arena, and it’s packed with people,” Kane said. “There are tour groups coming in and out, watching the proceedings for five or 10 minutes.”

At the same time, he said, the attorney arguing the case is standing only about 8 feet from the chief justice – much closer than at the Idaho Supreme Court or many lower courts – while the bench curves around them in an embrace.

“It’s a very intimate setting,” Kane said. “You’re close enough to see everyone’s facial expression. The interaction is more conversational. I think it reflects the purity of the court, the fact that this is an intellectual pursuit that’s bigger than you.”

The Supreme Court hears cases for only part of the year, so when it’s in session “it’s the big-ticket item in D.C.,” said Idaho Attorney General Lawrence Wasden, one of seven attorneys in his office who have argued cases before the court.

“There’s a long line of people waiting to get in,” Wasden said. “There are court watchers who really want to be in the courtroom. It’s like a ‘Who’s Who' of the legal profession.”

FEW CASES ACCEPTED FOR HEARINGS

The case that brought Withroe and Kane had to do with Medicaid and whether private service providers can sue states to force them to raise reimbursement rates.

In 2009, Idaho adopted new, higher reimbursement rates, based on studies indicating an increase was needed to ensure enough providers were available. The Legislature, however, refused to fund the higher rates due to budgetary concerns. Five companies that offer in-home services for people with mental disabilities sued, saying the state was violating federal requirements.

“The case addresses the ability of private citizens to sue states to force them to comply with their idea of federal law,” Withroe said. “It’s a pretty significant question. Our position was if there’s no other requirement for bringing a lawsuit, the supremacy clause would authorize essentially any private action” when someone disagrees with the way states implement a federal program.

He was assigned the case shortly after joining Wasden’s office in 2011. The providers prevailed in District Court soon thereafter and won again at the 9th U.S. Circuit Court of Appeals.

Withroe was elated when the Supreme Court agreed to hear the case. Typically only about 1 percent of the 7,500 or so cases submitted to the court each year raise sufficient constitutional issues to be given a hearing.

“Getting a petition granted is like winning the lottery,” he said. “It’s very rare and a lot of things have to go right.”

CASE HAS NATIONAL IMPLICATIONS

He and Kane arrived in D.C. a week before the oral arguments. They spent much of that time participating in “moot” or practice court sessions put on by National Association of Attorneys General, Georgetown University and the Office of the Solicitor General, fielding endless questions and honing their answers.

“The preparation was unlike anything I’d ever done,” Withroe said. “You have nine justices, each of whom has several law clerks, scrutinizing every word you say – and they’re more active in questioning, so you really have to be ready to offer quick answers as you go along.”

The case also had national implications. Attorneys general from 28 states filed friend-of-the-court briefs supporting Idaho’s position, as did the solicitor general. The American Civil Liberties Union and a group of former Health and Human Services officials were among those supporting the Medicaid providers.

“There were a couple of constitutional law articles suggesting this case would be the sleeper blockbuster of the 2015 session,” Kane said.

The day of the oral arguments, Kane and Withroe arrived at court around 9 a.m., went through security and eventually made their way to the lawyers lounge, where the chief clerk gave them some last-minute instructions.

Then they entered the courtroom itself, passing through another intense security screening.

“The guards went through every pocket in my briefcase,” Kane said. “They took out my cough drops and made sure they were cough drops. It was tighter than any airport security.”

Their case was up first, so they sat at the counsel tables immediately in front of the bench. They each took one of the white quill pens from a tray on the table – a traditional gift dating to the 18th century. Then they waited.

“I felt prepared,” Withroe said. “It was a little like staring down (ace Major League pitcher) Randy Johnson in the World Series, finding out if I could hit a pitch.”

COURT RULES IN IDAHO’S FAVOR

The justices filed in at 10 a.m. After reading a few opinions and admitting some lawyers to the Supreme Court Bar – a requirement for any attorney who argues a case there – Chief Justice John Roberts called the Idaho case.

“As I walked to the podium, the thing I was most focused on was not tripping,” Withroe said. “I had about 45 seconds to deliver my opening, then Justice (Sonia) Sotomayor asked a question. From that point on, I never got back to my prepared remarks.”

Except in extraordinary cases, each side has 30 minutes to highlight key points from their written briefs and respond to questions. Withroe gave 10 minutes of that to an attorney from the federal Office of the Solicitor General. He also wanted to save some time for rebuttal, so his opening lasted only 16 minutes.

“It was the fastest 16 minutes ever,” he said. “I remember thinking that was an awful lot of work, and help from an awful lot of people, for 20 minutes.”

Kane was taking notes the whole time, focusing on the questions and jotting down any points that should be shored up.

“My whole focus was getting Carl ready for rebuttal,” he said.

The payoff came two months later, on March 31, when the court handed down a 5-4 decision in Idaho’s favor. If providers think states aren’t adhering to federal requirements, the court said, the proper avenue of relief is to petition the Department of Health and Human Services, which runs the Medicaid program.

“I was happy, wired, excited,” Withroe said. “It was the end of a long haul, and a lot of fun. I was ready to keep going. The whole process reaffirmed that this is a team game – and there’s no substitute for hard work.”

The takeaway for Kane was a little different.

Nothing about the case initially suggested it would go all the way to the Supreme Court, he said, so it’s understandable if an attorney had taken a pass.

“This is a perfect example that you really never know where a case will end up,” Kane said. “It’s easy to say no. This shows the power of yes.”

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