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Blog > Issues > Property Rights > Fighting for property rights at the Supreme Court during Cedar Point v. Hassid

Fighting for property rights at the Supreme Court during Cedar Point v. Hassid

March 22, 2021 I By JOSHUA THOMPSON

Sketch created by Arthur Lien

On March 22, 2021, I argued Cedar Point Nursery v. Hassid before the Supreme Court of the United States. This case has wide-ranging impacts for property rights and government’s ability to infringe on private property owners’ right to control what happens on their property.

After oral arguments, I sat down with our staff to discuss the emotions of the day, my thoughts about the case, and takeaways from PLF’s 15th Supreme Court case.

 ***

PLF:

What are the three emotions you’d use to describe today?

Joshua Thompson:

Oh man, I’d have to say: excited, thrilling, relieved.

PLF:

So how much sleep did you get last night?

Joshua Thompson:

More than I expected, but that’s because there were a couple of nights this week where I didn’t sleep a wink. Last night I probably got about five hours? That’s decent. I mean, I’m thrilled to the moon that I got that much sleep before the argument.

PLF:

So walk us through this morning.

Joshua Thompson:

When I woke up, I took a shower, had a drink of coffee, ate a granola bar and read over our reply brief again and one case that I had a question about. Then I got to the office around 7:30 and did a moot court with Wen (Fa) and Chris (Kieser). After that I kicked everybody out, the Court called around 9:30, they put me through to the actual chambers speaker line at 9:45, and then at 9:59, you heard the gavel bang and I took it from there.

PLF:

What was it like giving your opening arguments?

Joshua Thompson:

Well, I felt like I had done it a million times before today. Although we actually changed the opening on Saturday—we completely rewrote it.

PLF:

You changed your opening arguments on Saturday?

Joshua Thompson:

Yeah. Last week after our moot court with Georgetown, one of the panelists had some advice for the intro and it made sense, so I started drafting a new opening and by Saturday I had one that everybody on the team liked.

PLF:

That seems like changing quarterbacks a week before the Super Bowl?

Joshua Thompson:

Kind of. Both Wen and Damien (Schiff) actually said, “Look, you’re comfortable with one you’ve been doing. Just stick with what you’re most comfortable with.” But it didn’t feel like that much of a lift. I practiced it 10, 15 times, and I think it was fine.

PLF:

Talk about the team effort it took getting this case to the Supreme Court and preparing for it.

Joshua Thompson:

I mean, just from the legal side, my team was Damien, Wen, and Chris. Each played a significant role in the case at different points. But the team goes a lot deeper than just the attorneys on the case. It goes to the fundraisers, it goes to the communication staff, and other attorneys who helped out. From the top of PLF on down, this case demonstrates how public interest law ought to work.

PLF:

Did anything surprise you during the arguments?

Joshua Thompson:

The only question that we weren’t expecting was actually the very first question that the Chief Justice asked. He started off by saying “On page six of the brief of the U.S. Chamber.” And I’m like, “Oh shoot, what’s on page six of the U.S. Chamber?” I didn’t recall what exactly was on that page, but then as he continued his question, it was clear what he was asking about and I knew what he was talking about. Other than that, we were very well prepared for everything else.

PLF:

Was it just you all by yourself in the room?

Joshua Thompson:

Yes. After I was done with my portion, Wen came in and gave me two little notes that he, Chris, and Damien had talked about. And then when the Government was just about done, Wen came in a second time and gave me one other note. But he left right away, and it was just me in the room.

PLF:

It seemed like some of the Justices were trying to throw you off your arguments. How did you stay focused and avoid getting too nervous?

Joshua Thompson:

This is what we do. I’ve certainly never been in front of the Supreme Court before, but I’ve argued in front of many other courts.

I remember the very first oral argument I ever did, back in probably 2008, it was in front of the D.C. Circuit and I was a nervous wreck that time. For the first five minutes of that argument, if you read the transcript, I’m just talking gibberish. Sentences don’t make sense, it was just pure nerves. But today I didn’t have as many nerves as I expected. I think part of it is I’ve done oral arguments before, but a bigger part of it is I had a great team that helped me prepare and we were ready for everything.

PLF:

How cool is it to be one of the few attorneys to argue before the Supreme Court to field questions from Justice Thomas?

Joshua Thompson:

Yeah. It’s a feather in my cap, I suppose. That is certainly one of the nicest things about the new format, that Justice Thomas feels comfortable to ask questions, and I’m one of the few that’s got to answer one of his questions.

PLF:

That being said, would you have preferred to do it in person?

Joshua Thompson:

Beggars can’t be choosers on some level, but yeah, it would be cool to be inside the courtroom and to feel the aura of that place. But I’m certainly over the moon about this opportunity.

PLF:

Are there any points you didn’t get to make, or things you said that you wish you could have worded differently?

Joshua Thompson:

I haven’t listened back to the argument yet, but I feel like we have done so much preparation that I knew how I was going to answer every question. That being said, though, nothing’s written down, so everything you say is a little bit off the cuff all the time. But for the most part, nothing sticks out in my mind that I wish I could have done differently.

PLF:

How did it feel when you were done with the arguments?

Joshua Thompson:

I was pretty composed during the entire thing, but right after I got done, my sister called, and that was the only time that I got kind of choked up and emotional. Then I called my wife and she told me that my kids got to watch me. My daughter’s 5, and she liked watching the SCOTUStoons animations on the TV.

PLF:

What did your daughter think of the cartoon Dad?

Joshua Thompson:

She didn’t like that I was in a tie, and she thought my mustache wasn’t supposed to be white like it was.

PLF:

How do you think our clients felt about all this?

Joshua Thompson:

Well look, Mike [Fahner] is a farmer and a businessman. I don’t think he’s spending the days looking on Twitter and Facebook and reading all the newspaper op-eds about the case.

He’s been wonderful this entire time, though. I looked back at my emails, and the very first time I talked to him was less than a week after the union stormed his business. I drove up there and we met him in person and it was clear then that he was ready to fight this. He felt that this was a complete injustice, that the union shouldn’t be able to do this, that if this had happened to anybody else, he always says he would have called the police and had them ejected, but he couldn’t do that here.

PLF:

Is there anything else you want to add about today?

Joshua Thompson:

I want to reiterate how much that it’s a full team effort that makes this possible. From PLF’s leadership to my litigation team, to fundraising, to the communications efforts. We’ve been blitzing everybody for at least the last month, and none of this would be possible without everyone’s effort.

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