NEWS

Nation’s leading expert on practicing before U.S. Supreme Court, publishes latest ‘bible’

By DAVID WILLIAMSON
UNC News Services

CHAPEL HILL -- At age 85, when most retirees aren’t thinking much beyond what they’ll have for dinner and what television shows they’ll watch, Eugene Gressman, Kenan professor of law emeritus at the University of North Carolina at Chapel Hill, is a notable exception. Gressman has barely considered touching the brakes on a remarkable career.

Among his accomplishments since his official "retirement" 15 years ago was serving seven years as distinguished visiting professor of law at Seton Hall University in Newark, N.J. That was after almost 30 years in private practice in the nation’s capital, 10 years teaching at UNC and adjunct professorships at six universities, including Michigan, Indiana and Ohio State.

The former Washington, D.C., labor lawyer no longer teaches Constitutional law and other subjects, but he still goes to his office at the UNC School of Law every day. And he still exerts a quiet yet profound influence on the highest pinnacle of the nation’s legal system.

This summer, the Bureau of National Affairs published the eighth edition of a book Gressman first wrote with the late Robert L. Stern in 1950: "Supreme Court Practice." Ninety copies of the 2002 book, which Chief Justice William Rehnquist said most lawyers consider the legal "bible" of the U.S. Supreme Court, went to that one tribunal alone for use by justices, clerks, the library and the Clerk’s Office.

Sandra Day O’Connor, the first woman to serve on the court, said she couldn’t get along without the classic guide. Justices David H. Souter and Ruth Ginsburg, respectively, said the work "has comforted me throughout my working life" and "has proved an invaluable resource for as long as I have studied, practiced before and participated in, the Supreme Court."

"It’s on my desk at all times, ready for quick reference on many occasions," O’Connor said. "It is often cited in opinions from the court and has been invaluable in matters of practice and procedure." More recently, Gene R. Nichol Jr., dean of the UNC law school, tells of introducing O’Connor to Gressman during her visit to dedicate the school’s new wing in 1999. O’Connor’s first words to Gressman were, "Ah, North Carolina’s gift to the Supreme Court and to the country."

About the book’s last edition, in 1993, an Appellate Practice Journal reviewer wrote: "This book is a monument. It utterly dominates its field. It set the standard for all appellate practice books….To proceed in that court without the volume would surely constitute legal malpractice."

Co-edited by Stephen M. Shapiro and Kenneth S. Geller, the new edition incorporates and updates numerous changes in court rules and procedures. Gressman said his purpose has always been to help justices, clerks, lawyers for both sides of countless issues and others follow established practices so the court can function as effectively as possible. The bottom line is to serve justice.

"My life has been enriched by the fact that this book has accomplished its main purpose -- that of helping others understand how best to practice before the Supreme Court," the scholar said. "I have often heard that the court itself appreciates the role the book plays in helping it administer the heavy workload."

Depending on one’s work ethic, Gressman came by his knowledge of and interest in the Supreme Court the easy way. Or the hard way. He spent five years between 1943 and 1948 as law clerk to Justice Frank Murphy, a man he greatly admired. That tenure as clerk, unprecedented in modern times and never equaled since, resulted from his outstanding record as a University of Michigan law student and also from World War II, which temporarily cut the flow of young attorneys graduating from the school.

Of the many cases Gressman worked on as Murphy’s sole clerk, one of the most memorable was "Korematsu v. United States, the action challenging the mass removal of Japanese-Americans from the West Coast during the war and their confinement in relocation camps. The late Sen. Sam J. Ervin Jr. of North Carolina later called the internment "the single most blatant violation of the Constitution in U.S. history."

In that case, a majority of the court, including civil libertarians Hugo Black and William O. Douglas, ruled against Fred T. Korematsu, whose arrest the American Civil Liberties challenged to fight the relocation effort.

Only three justices dissented in the ruling. Among them was Murphy, former Detroit mayor, Michigan governor and U.S. Attorney General. The military order interning Japanese-Americans "goes over the very brink of constitutional power and falls into the ugly abyss of racism," Murphy’s now-famous opinion read.

As part of his demanding job as Murphy’s legal eaglet, Gressman wrote the first draft of the dissent and suggested that wording.

"I certainly wouldn’t say I’m the author of any of the opinions, although I am still proud of quite a few of the ones I worked on," Gressman said. "Murphy was responsible for all the decisions that carried his name."

Government documents discovered since 1980 have confirmed what Murphy -- and his young protégée -- strongly believed -- that no military justification existed for interning Japanese-Americans. The ruling, now admitted by nearly everyone to have been a grievous mistake, caused thousands of loyal citizens and resident aliens to lose their homes, livelihoods and, at least temporarily, their dignities.

In the ensuring years, besides developing the definitive volume on the court, Gressman has prepared briefs and petitions in well over 400 cases submitted to the top tribunal and has participated in 13 oral arguments. Most lawyers never get near the Supreme Court. He also has raised four children with his wife of 58 years, noted abstract painter Nan Gressman.

His cases have ranged from trying to prevent a deposed Venezuelan leader from being deported from the U.S. to face possible execution in his own country and to defending a lawyer being pilloried for

allegedly soliciting business. Despite his personal views about the shabbiness of Watergate, he attempted to spare Nixon associates John Mitchell and Robert Haldeman from going to prison and also defended a community college being sued for excluding an unqualified applicant.

In INS v. Chadha, in which he represented the U.S. House of Representatives, Gressman argued twice before the Supreme Court and five or six times before lower courts. In a nutshell, that complicated case pitted the House and the U.S. Senate against the Executive Branch over whether the two bodies had the power under the Constitution to "pocket veto" regulations adopted by government agencies.

"To this day, I believe that case, which we lost, greatly increased the power of the executive because it can promulgate regulations having the effect of law without any kind of check over it by Congress," he said. "The only control Congress has over a regulation now is to enact a statute to change it, which is difficult and time-consuming."

The ruling weakened the tradition of checks and balances the nation’s founding fathers saw as so critical to preventing power from becoming concentrated in too few hands and possibly abused.

Gressman’s newest challenge involves a matter of national importance -- that of where responsibility lies when impressionable, deranged students kill others at school. He has agreed to help represent parents of children slain by a classmate named Michael Carneal in Paducah, Ky., in 1997.

The parents sued 25 companies, mostly makers of extremely violent videos and Internet sites, claiming that through influences of their defective products, they were partially responsible for the then-14-year-old’s deadly rampage. Despite one of the videos displaying a dreamlike sequence in which a student shoots others, including a school principal, the plaintiffs lost on First Amendment grounds both the original case and, in August, the appeal. Their only recourse now is the U.S. Supreme Court, and their attorneys turned to Gressman for help.

Persuading the Supreme Court first to review and then to overturn lower courts’ decisions by saying the products exceed the limits of free speech is an extreme long shot improved by experience, he said. The "retired" UNC professor’s reputation as an appeals lawyer is that just about nobody does it better.

"From what I’ve seen, I’ve often thought the court is rather like a roulette wheel," Gressman said. "Although it favors experience and preparation, it’s still a very high-risk operation."

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Note: For a photo of Gressman, call David Williamson at (919) 962-8596. Gressman can be reached at (919) 962-3688 (w) or 929-1289 (h).