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April 13, 2008

SCOTUS sentencing cases involve unusual advocates

Writing in the Legal Times, Tony Mauro has this interesting piece headlined, "Supreme Court Justices Turn to Ex-Clerks for Unusual Role: Former clerks tapped to make the arguments others have abandoned."  Here is how it starts:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.  Alito's request: Would Jorgensen have time to argue a Supreme Court case in April — a case Jorgensen had never heard of — for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case.  So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks.  Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter "Bo" Rutledge, a former Clarence Thomas clerk, will also be appearing as "amicus curiae in support of the judgment below," as the Court phrases it.  This will also be Rutledge's first time before the Court.

"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.

These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.  In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer — almost always a former clerk — to make the orphaned argument.

April 13, 2008 at 12:43 AM | Permalink


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Why is this unusual? This has been the practice for years.

Posted by: S.cotus | Apr 13, 2008 8:05:48 AM

The article said it hasn't happened in five years, and it's happening twice on the same day. Seems unusual to me.

Posted by: NCProsecutor | Apr 13, 2008 9:20:05 AM

What's unusual to me is that the Court decides to hear a case where the parties have no dispute. If they've settled their dispute (by one side agreeing with the other that a lower court was wrong), there is no role for a Court. The parties should be able to reach a settlement agreement and have it enforced at any stage of litigation.

One of the chief limitations on the federal judiciary is the "case or controversy" requirement. American courts don't exist to decide ethereal issues; they exist to resolve disputes between competing parties. If the parties to a case no longer have a dispute, then the case should go away. Anything else is judicial over-reaching.

Posted by: Mark | Apr 14, 2008 10:24:03 AM

NCProsecutor, I guess “unusual” is a matter of perspecitve.

The reason this doesn’t violate the C&C clause is that there does exist a controversy: whether the judgment of the CTA is correct or not. In disregarding the wishes of both parties, the CTA created a controversy. Even if the BOP decided to let the guy out early, he would still have been sentenced according to what the CTA did, which would be a real injury.

So, I would not blame the Supremes, I would blame the CTA for engaging in a hideous form of judicial activism.

Posted by: S.cotus | Apr 15, 2008 4:10:58 PM

Isn't there a potential conflict of interest, since a judge will look favorably on his own former clerk's argument? Or is that not an issue?

Posted by: | Apr 15, 2008 4:21:11 PM

Not a conflict. We practice in front of our former bosses all the time. Many times our bosses are wrong. It would only be a conflict if the ex-clerk was an actual part.

There is a Supreme Court rule which requires that ex-clerks not participate for a certain amount of time.

Posted by: S.cotus | Apr 15, 2008 7:31:59 PM

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