Fighting DOMA: Veterans as Amici Curiae 16

Working on U.S. Supreme Court cases is, for many attorneys, the opportunity of a lifetime. But it is a rare lawyer who regularly 
appears before the court. Yet slowly and steadily, 
Stanford’s Supreme Court Litigation Clinic has built a record since its founding in 2004 as one of the most active SCOTUS legal practices in the country. The first of its kind at any law school, the clinic has represented clients at both the certiorari and merits stages that would be the envy of any appellate 
practice—representing parties as lead counsel in more than four dozen cases on the merits and winning a substantial majority of those cases. The clinic also has secured victories for clients by convincing the Court to deny petitions for certiorari filed by the solicitor general of the United States, state attorneys general, and prominent businesses.

But the clinic is much more than its results—it represents a unique learning opportunity for students to hone their writing, research, and analytical skills while exploring a realm few lawyers ever experience in their careers. Guiding them are co-directors Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and co-founder of the clinic, and Jeffrey L. Fisher, professor of law. Under the direction of Karlan, Fisher, and Washington, D.C.-based lecturers who collectively have argued more than 50 Supreme Court cases, clinic members represent parties and amici curiae—preparing briefs and other filings and participating in moots for oral arguments. The case profiles that follow explore two recent examples.

It’s spring, the time of year when thoughts turn to 
romance and, for many, marriage. But for gay and lesbian couples, there are obstacles. Although public opinion has been evolving and a growing number of states now recognize same-sex marriage, the federal government does not. The Defense of Marriage Act (DOMA), enacted in 1996, 
restricts “marriage” for the purpose of all federal laws solely to a legal union between a man and a woman.

But this law is now up for review by the Court in United States v. 
Windsor, the case challenging the constitutionality of a section of DOMA. And students in Stanford Law School’s 
Supreme Court Litigation Clinic, under the supervision of
Pamela Karlan, have spent the winter working on it.

Karlan first became involved in Edith (“Edie”) Windsor’s case last summer when she received an email from Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York, who was representing Windsor pro bono. “I knew that the district court had struck down DOMA and Robbie wanted to know if I would be interested in working on the case as it headed toward the Supreme Court,” says 
Karlan. “I didn’t hesitate.” Windsor’s case was both heartbreaking and groundbreaking. Windsor and Thea Spyer had been engaged for more than 40 years before getting married in Toronto in 2007. New York recognized the marriage as valid but because of DOMA, the IRS did not. When Spyer died in 2009, Windsor was forced as her executor to pay more than $363,000 in federal estate taxes. Had Edie and Thea been a married straight couple, the tax bill would have been $0.

“They had been together for decades,” says Karlan, “But 
despite the fact that they were married, federal law treated them as legal strangers.”

Windsor’s co-counsel, who now included Karlan and the 
Supreme Court Litigation Clinic as well as the ACLU, filed a “petition for certiorari before judgment” last July, seeking expedited review due to Windsor’s age and health. In December, after the Second Circuit ruled in Windsor’s favor, the Supreme Court granted review based on a petition filed by the United States.

“It was a Friday, and we were in class with the clinic students when news about the federal petition was announced,” says Karlan. “A spontaneous celebration erupted. We ordered pizza and watched Edie & Thea: A Very Long Engagement, the award-winning documentary about our client.”

Karlan, meanwhile, had been studying Italian for a year, preparing to spend 10 weeks during winter quarter teaching undergraduates at Stanford’s overseas program in Florence. “It was going to be my long-delayed ‘Junior Year Abroad,’ ” she quips. But the next day Karlan realized that she couldn’t go to Florence. “Not only was this an issue that I cared about deeply, but it also was a unique opportunity for students to see this kind of case from the inside. It was a front-row seat on history.”

Stanford Clinic Client Edith Windsor with Pamela S. Karlan Outside the U.S. Supreme Court
Stanford Clinic Client Edith Windsor with Pamela S. Karlan Outside the U.S. Supreme Court (Photo by © Carolyn Kaster/AP)

The clinic does not enroll new students during the winter quarter, so Karlan assembled a team of clinic veterans, including Nicolas Martinez, JD ’13 (BA ’07), Bailey Heaps, JD ’13, 
Elizabeth Dooley, JD ’13, and Michael Baer, JD ’14 (BA ’08), for an advanced clinic. The Stanford, Paul Weiss, and ACLU teams then divvied up the briefing and set to work.

Following Karlan’s established philosophy, the students took the lead on brief drafting. “One of the best things about working with Pam,” says Martinez, “is that she put the students first. She let us take the initial crack at everything.”

Karlan also encouraged student input throughout the process.

“We were free to speak up about anything,” says Heaps. “We could even disagree about verb tense and punctuation—and occasionally, we won.”

Some of the disagreements occurred during the team’s marathon editing sessions, at least one of which lasted for 20 hours—from 8 a.m. until 4 a.m. the next morning.

“During the editing sessions, we put the brief up on a screen and went over it with Pam word by word,” explains Heaps. “She kept us going with frozen yogurt, Magic Shell, Starbucks, and trips to the Treehouse.”

After many such sessions, thousands of emails exchanged among team members and amici, and the circulation of numerous drafts, the attorneys filed Windsor’s briefs with the Court. Shortly thereafter the clinic team headed East. Karlan and the students were in D.C. for the last-minute preparations, a 
Passover seder with Edie and the lawyers, and the Supreme Court argument on March 27.

Most memorable for Martinez was walking down the steps of the Supreme Court with Edie and the other lawyers after the argument—while hundreds of people were chanting and cheering. “I realized that everything we did—the 
hundreds of hours we spent—really mattered,” he says.

Heaps echoes that sentiment adding, “Attending oral argument with our client in the room made me realize that that’s why we were there—for Edie. It wasn’t just an abstract debate in Constitutional Law.”

And both students recognize that this event may be the highlight of their legal careers. “This has the potential to be one of the most meaningful decisions in recent Supreme Court history,” says Heaps. Karlan likewise acknowledges the potential magnitude of the decision, but adds that it doesn’t really matter whether it’s the case of a lifetime for her. “For the client, it’s always the case of a lifetime,” says Karlan.

While Lozman v. City of Riviera Beach, Florida may not have garnered quite as much publicity as Windsor, according to Professor Jeffrey L. Fisher, it was nonetheless a 
“fabulous case” and a perfect clinic project.

The petitioner, Fane Lozman, purchased a floating home that was ultimately moored in a marina in Riviera Beach, Florida. When Lozman got into a rift with Riviera Beach officials, the city tried unsuccessfully to evict him. Next the city went to federal court and secured a maritime lien on his home to cover unpaid dockage fees, which allowed it to impound the home and its contents.

“Maritime liens are typically used by creditors to prevent a ‘vessel’ owner from sailing away from his debts,” explains Fisher, “and federal law defines ‘vessels’ to include every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” The issue, therefore, was theoretically “super simple,” says Fisher, “What, for purposes of triggering maritime law, is the definition of a boat?” Can something that is indefinitely tied to land—such as a floating home, a floating hotel, or a floating casino—be considered a vessel, even though it floats and can be repositioned by tow?

But despite the issue’s seeming simplicity, it presented a 
classic lawyers’ conundrum–the narrower the definition of 
vessel, the more likely it would be underinclusive. And the broader it was, the more likely it would lead to absurd results. Courts across the country could not agree on a solution, and it fell to the clinic to propose a workable rule.

Fisher became involved in the case in the fall of 2011 after 
Lozman had lost his case against the city in both the district court and the Eleventh Circuit. Lozman had argued that his home was not a vessel, but the federal appeals court took a much broader view—basically holding that anything that floated qualified. Although the clinic’s docket was full, Fisher agreed to work on the certiorari petition on his own. “That’s something that clinic professors often do to make sure that there are cases in the pipeline,” he says.

The Supreme Court granted cert in February 2012, and the spring quarter team of Denise Drake, JD ’13, Cathleen Hamel, JD ’13, William Havemann, JD ’13, and Matthew Waring, JD ’13, was assigned the task of writing the opening brief under Fisher’s supervision.

Drake, who had been a clinic student in fall 2011, was thrilled: “You get to work on lots of great projects in the clinic, but a merits brief is the best. And this case was unusual because the client was extremely involved at every stage.”

As an advanced student, Drake assumed a supervisory role while the other students focused on the substantive work. Hamel researched relevant Supreme Court maritime precedent; Waring explored the history of maritime law going back several centuries; and Havemann examined maritime law to determine what the ripple effects of accepting the Eleventh Circuit’s definition of a vessel might be.

This latter area of inquiry drew much attention from the Court. “The justices came up with one colorful hypothetical after another during oral argument,” says Havemann, “and at times the whole gallery burst into laughter.”

Indeed, the decision holding in favor of Lozman (7-2) highlighted the problems with adopting the “anything that floats” definition. In a section of Justice Breyer’s (BA ’59) majority opinion he wrote, “To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not ‘vessels.’ ” Accordingly, the Court—essentially following the clinic’s proposal—held that the correct inquiry is whether “a reasonable observer” would conclude that the structure was “designed to a practical degree for ‘transportation on water.’ ”

“Everyone was ecstatic about the outcome,” says 
Havemann. “And,” he adds, “it was an extraordinary opportunity to see a case through the Supreme Court from nearly the beginning to the end. Our clinic is a tough act to beat.” SL