Hobby Lobby Lesson

Appellate practitioners can glean an important lesson from yesterday's Hobby Lobby argument: Beware of raising arguments which clearly are not going to be productive. The government's merits brief led off with the assertion: "RFRA does not grant free-exercise rights to for-profit corporations." Although standing arguments can result in a "home run" in the sense the other side is kicked out of court for procedural reasons, Solicitor General Verrilli ended up spending an inordinate amount of time responding to questions concerning his standing argument such as: Justice Scalia: . . . There is not a single case which says that a for profit enterprise cannot make a freedom of religion claim, is there? Although appeals generally are decided based on briefing, rather than oral argument, you don't want to waste your limited argument time on loser issues either. Once you brief an issue, the Court can hammer you on it all it wants, detracting from the limited time you have for your main points. See Becket fund site: http://www.becketfund.org/legaldocshl/