Eight Years Later, Advocate Gets Another Chance at Supreme Court

Trent McCotter will make his Supreme Court debut in one of the term’s most closely watched cases, nearly eight years after narrowly missing the chance to argue his first case there.

The Boyden Gray partner on Wednesday will try to convince the justices to revive the so-called nondelegation doctrine, a separation of powers theory that hasn’t been used to strike down a federal law since 1935. The case, FCC v. Consumers’ Research, could further curb the power of federal agencies by limiting how and when Congress can delegate its lawmaking authority.

McCotter’s first opportunity came in a more obscure case involving the effects of a guilty plea when he was a mid-level associate at Jenner & Block. The firm sought Supreme Court review after he lost before the D.C. Circuit in his first-ever argument.

While that petition was pending, McCotter was offered a job at the Justice Department, working as an assistant US attorney in the Eastern District of Virginia. He hesitated thinking there was a good chance the firm would allow him to argue the case at the Supreme Court, even though he was only a fifth-year associate. “I thought, but come on, like they’re not going to grant—they grant almost nothing—and this was such a weird procedural thing,” he said.

So McCotter took the DOJ job, eventually becoming the deputy associate attorney general overseeing the Civil Division.

Two weeks after he took the DOJ job, though, the justices granted the case. Another Jenner & Block attorney ultimately argued and won.

“I was so close,” McCotter said. “It’s taken this long to get back,” but “most people never get this opportunity.”

Good Karma

McCotter, who clerked for both Second Circuit Judge Steven Menashi and Eleventh Circuit Judge R. Lanier Anderson, said the experience taught him an important lesson.

If there’s an opportunity to argue at the Supreme Court “you should not take it for granted,” McCotter said. “Because you may not get another.

McCotter did get another chance—this time in a major case on administrative law.

The practice area is sort of a second chance for McCotter, too.

He said the only class he ever dropped at the University of North Carolina School of Law was admin law. “I showed up for one class that was so boring I couldn’t take it,” he said.

But it was a big part of McCotter’s job at the DOJ, and he’s come to realize that the subject is actually interesting. “At the very least, it’s become interesting.”

He’s now an expert in the area and even leads the Separation of Powers Clinic at Catholic Law.

McCotter noted that two of UNC’s most famous law school graduates are David Sentelle, a senior judge on the D.C. Circuit, and C. Boyden Gray, a diplomat and founder of McCotter’s current firm. Both Sentelle and Gray later had notable careers in administrative law, even though McCotter said neither took the class in law school.

“I feel like there’s some karma in the universe happening for me there,” McCotter said.