Tribute to Michael Dreeben
This piece was originally published on SCOTUSblog. Additional tributes to Mr. Dreeben from ALI members William C. Bryson of the U.S. Court of Appeals for the Federal Circuit, Neal Katyal of Hoggan Lovells US, Leondra R. Kruger of the California Supreme Court, Nicole A. Saharsky of Mayer Brown, Donald B. Verrilli Jr. of Munger, Tolles, & Olsen, and Seth P. Waxman of WilmerHale are also featured on SCOTUSblog.
Over his 31 years of service in the Office of the Solicitor General, Michael Dreeben has made Supreme Court history in several ways. Perhaps the most remarkable came on April 27, 2016, when he argued his 100th case before the court. I had a unique vantage point that day — I was Michael’s opposing counsel. When I sat down after my 25 minutes of argument representing former Virginia Governor Robert McDonnell, I figured the most stressful part of the case was over. I was wrong. For the next 30 minutes, Michael mounted a forceful defense of the government’s position. I quickly learned what it was like to be on the other side of a Michael Dreeben argument, and it wasn’t pleasant!
Over my two years as solicitor general, I’ve come to know Michael better. As I’ve often said when speaking to conferences of federal prosecutors at the Justice Department, Michael Dreeben knows more about criminal law than anyone else on Earth. But it’s not only his knowledge that sets him apart. It’s also his talent as an advocate, and his tireless devotion to his craft. To venture into a different field, I’m reminded of Bum Phillips’ description of why Bear Bryant was a great football coach: “Bryant can take his’n and beat your’n, and then he can turn around and take your’n and beat his’n.” I feel that way about Michael: Even as he’s winning with his arguments, you can’t help feeling that he could win with your arguments, too.
To take one recent example, consider Turner v. United States. The question was whether the government had adequately disclosed certain evidence to several criminal defendants convicted of murder in 1985, and the Supreme Court granted review over the government’s opposition in this highly fact-bound dispute. After taking the case in that posture, it is fair to say the court was not expected to affirm. But Michael refused to accept the writing on the wall. He immersed himself in the case in the manner of a line prosecutor, poring over the trial testimony, visiting the crime scene and fashioning large posters in his office connecting the key participants and witnesses. If you haven’t listened to the oral argument, you should. It was a master class in advocacy: Michael was in complete command of both the facts and the law. At one point, Justice Elena Kagan asked a question about whether the withheld evidence had kept the defendants from advancing an alternative theory — and Michael’s uninterrupted answer occupies the next four pages of the argument transcript. That is virtually unheard of, especially in a case of this consequence, but it is a testament to the court’s respect for Michael’s grounding in the criminal law. In the end, Michael helped persuade the court to affirm by a 6-2 vote, on the basis that the withheld evidence was not material. I am not sure whether any advocate other than Michael would have had the expertise to achieve that result.
His reputation, of course, was built up over three decades of dedicated service to the department and the court. One of the wonderful things about our office is that only solicitors general are guaranteed to come and go, and we have been fortunate that so many career lawyers have stayed to benefit the department with their experience and institutional knowledge. On behalf of all those with whom Michael has worked at the department, I extend our gratitude for his long service to the United States, and wish him all the best in the next chapter of his career.
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