Stanford Law School’s new Supreme Court Litigation Clinic is off to a fast start. Three of the cert. petitions the clinic filed with the Supreme Court last spring were granted, and a fourth is still pending. That’s a record most law firms would envy.
When the Supreme Court’s fall term begins in early October, three noteworthy cases will appear on the docket—noteworthy because the petitions for writ of certiorari granted by the Court were written by a small group of law students enrolled in a pilot clinical course.
The Supreme Court Litigation Clinic was launched last spring at Stanford Law School to teach students this highly specialized form of appellate litigation, as well as to give them intensive instruction in legal writing and working as a team. In its first semester, the clinic worked on seven cases before the Court. Three of its four cert. petitions have been granted, and the fourth is pending. That’s a track record most law firms would envy.
“It’s an ambitious undertaking that has enjoyed remarkable success, contrary to conventional wisdom,” said Georgetown University law professor Richard Lazarus. A former U.S. Justice Department lawyer and assistant to the solicitor general, Lazarus runs Georgetown’s own Supreme Court Institute. “What’s impressive is that the students got cert. granted. There are so few cases granted every year . . . and so many potential pitfalls. . . It takes some pretty outstanding students to pull it off.”
Stanford’s clinic was designed by two veteran Supreme Court advocates—Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, and Thomas “Tommy” Goldstein, a lecturer at the law school and principal at a boutique Supreme Court practice in Washington, D.C., Goldstein & Howe.
Karlan, a former clerk to Justice Harry Blackmun and one of the nation’s most respected Supreme Court scholars, has successfully argued two voting rights cases before the Court, and has participated in 25 other cases involving such issues as redistricting, employment, reproductive autonomy, affirmative action, and sexual orientation.
Goldstein has built up a small but well-respected practice focusing on Supreme Court litigation. He represents a wide variety of clients, from large corporations to individuals across a wide range of substantive areas, including taxation and First Amendment law. Goldstein has won five of the eleven cases he has argued before the Court, has gotten dozens of cert. petitions granted, and is scheduled to argue his 12th case this term. That case, Smith v. City of Jackson, is the first of the clinic’s cert. grants.
“For years, I’d been thinking about turning our pro bono practice into a unique opportunity for students, who wouldn’t otherwise have the chance to work on cases at the Supreme Court,” Goldstein said. He approached Karlan and the idea caught fire.
The clinic, with seven students and three faculty members, operates as a small law firm focused solely on pro bono cases. While the students meet in a tiny seminar room in the Stanford law library they have nicknamed “The Weenie Bin,” their audience is 3,000 miles away—inside the marble and oak walls of the Supreme Court.
There is no other clinical offering like it in the country. Many law schools offer seminars that focus on the current Supreme Court term, conducting simulated exercises in which students act as lawyers or justices. A few schools’ clinics enable students to work on Supreme Court cases, but only in a single substantive area—such as the death penalty. Stanford’s is the only clinic that enables students both to work on actual cases and experience the full range of substantive areas on the Court’s docket, from bankruptcy to discrimination to maritime law.
Students participate in drafting cert. petitions, oppositions to cert. petitions, merits briefs, and amicus briefs. They also comment on drafts of briefs being filed by lawyers in other cases, and help prepare advocates for their oral arguments through moot courts.
Each year the Supreme Court receives more than 7,000 petitions for writ of certiorari, and of those, agrees to hear only about 80. That’s why picking the right case is so important. Before the clinic began, Karlan and Goldstein vetted a host of cases, narrowing the list before asking the students to weigh in.
“We look for cases that the Supreme Court is likely to take, and in which the clients deserve pro bono help,” Goldstein explained. “We don’t care if the cause is liberal or conservative; the principle is the need for an attorney. The most important factor for the justices is that the case clearly would have been decided differently by another court of appeals, which we call a ‘circuit split.’”
Using this criterion of the circuit split, the clinic zeroed in on four cases. The clinic then approached the lawyers who had handled the cases in the lower courts, offering to assist them before the Supreme Court. The task of the cert. petition is not to persuade the Court of the ultimate merits—although it lays the groundwork for doing that—but to persuade the Court that the case raises an important issue and is the appropriate vehicle for resolving it.
The first case the clinic chose, Azel P. Smith. v. City of Jackson, Mississippi, required a cert. petition to be filed just three weeks after classes began in January. The case involves a group of older police officers who sued the city for instituting new wage scales that effectively gave smaller increases to the more senior officers, claiming the city violated the Age Discrimination in Employment Act. A team of three students worked on the case: Michael Abate ’05, William B. Adams ’04, and Jennifer Thomas ’04. (See p. 17 for a complete list of the spring 2004 clinic cases.)
“The first week of class we met four times,” said Abate. “We got about ten minutes on the type of
work we would be doing, a rundown of the cases, and a formal lecture on cert. petitions. Then they handed us a brief and a transcript [of a prior case] that was dismissed as ‘improvidently granted,’ and they said, ‘Go to it.’ We had ten days to draft a full cert. petition.”
The timing was based on the Court’s calendar, and deadlines were unyielding. “The brief has to be at the printer by 9 a.m. on the day it has to be filed,” Karlan observed. “It’s not as if Tommy or I could grant extensions—it’s not within our power. These are the Court’s deadlines, and the Court is not interested in hearing ‘The dog ate my homework.’”
The clinic filed the cert. petition on February 11, then waited. While they knew their petition had a chance, and they had been deliberate in their choice of cases, the students were still surprised when word came down that petition for writ of certiorari in No. 03-1160, Smith v. City of Jackson, Mississippi, had been granted. “It was kind of surreal. It took a while to sink in,” said Eric Feigin ’05. Abate tucked a copy of the April 1, 2004, edition of The New York Times under his arm as he walked around the school: not only was the cert. petition granted, but an op-ed in the Times endorsed the clinic’s side of the case.
In addition to filing four cert. petitions during the semester, the clinic also conducted several moot courts for attorneys who were preparing to argue cases before the Supreme Court. During these sessions, the students and faculty members played the role of Supreme Court justices, and the attorneys played themselves.
The most notable moot court the clinic conducted was for Michael Newdow, an emergency room doctor with a J.D. who was preparing to argue before the Court in Elk Grove Unified School District v. Michael A. Newdow. Pursuing the case on behalf of his daughter, Newdow would argue that the words “under God” should be stricken from the Pledge of Allegiance because it violated the constitutional separation of church and state.
Standing before a panel of faculty members and students, Newdow held a roster of the justices noting their religions, and proceeded to address the bench about personal faith. The panel urged him to start again, focusing on the legal issues before the Court. Newdow responded adroitly to a barrage of questions. By the time his 30 minutes were up, he’d been pumped about the constitutionality of prayer in the legislature and in the Supreme Court, as well as the words “In God We Trust” on the dollar bill. He was pushed on the issue of standing. (His daughter’s mother had primary custody, and it was unclear that the Court would recognize his standing.) And he got a clear, crisp directive to focus his argument that the recitation of the pledge was akin to prayer.
When the U.S. Supreme Court’s decision in the case came down, the justices dodged the question of whether the Pledge of Allegiance violated the Constitution, and instead ruled that Newdow did not have standing to bring the case because he did not have full custody of his daughter.
During a second moot court, this time for a case in which the Supreme Court and Environmental Law clinics had filed an amicus brief, U.S. Department of Transportation v. Public Citizen, students and faculty joined a team of lawyers working on the case to moot attorney Jonathan Weissglass of Altshuler, Berzon, Nussbaum, Rubin & Demain who later argued the case before the Supreme Court. At issue was the application of the National Environmental Policy Act and the Clean Air Act to Department of Transportation rules regarding cross-border licensing of Mexican trucks. The Court later held that the Department of Transportation does not have to conduct certain environmental impact studies before Mexican-domiciled trucks may be permitted into the country.
“Poor Jonathan,” said Adams, one of the student moot court participants. “There were so many of us. It was hard to get a word in edgewise. And I didn’t want to be the one to ask the dumb question.” While Adams was self-critical, Stephen Berzon of Altshuler, Berzon was quick to note that “the law students were really impressive.”
With a third instructor, Amy Howe (Goldstein’s wife and law partner), on the teaching team, the Supreme Court Litigation Clinic is back in business again this fall. With good reason: Not only did the clinic compile a stellar track record, but the students learned a tremendous amount in the process. Most important, clinic students received unparalleled training in persuasive legal writing. While the Supreme Court’s documents are unique, “Many of the writing and analytic skills required to write a cert. petition transfer to all other forms of persuasive legal writing,” Karlan said. “We spend a lot of time on the students’ writing, going over it line by line.”
Students were divided into teams of two to three per case, and they submitted drafts to the whole group. “I’ve always hated group projects, . . . but I got a new sense of what working in a good group offers,” said Thomas, who plans to specialize in Indian law. “Given the pressure, we could have all hated each other. But the group was really dynamic and I wouldn’t have changed a thing.”
In addition to writing and collaborating, the students had to manage their own deadline schedules, working backward from the Court calendar. And they were exposed to a wide range of substantive legal subjects, including maritime law, the Americans with Disabilities Act, bankruptcy, age discrimination, and money laundering.
Students weren’t the only ones who benefited. So did the clients. Law firms used to be able to offset the cost of Supreme Court litigation, but that’s getting harder to do. More and more, “They are asking law professors and schools to participate,” said Thomas O. McGarity, professor of law at the University of Texas at Austin. McGarity participated in the Stanford moot court for the trucking case.
“The clinic’s real value-add is that the students did the legwork to get cert. granted,” explained Georgetown’s Lazarus, emphasizing the importance of the students’ role in shaping the Court’s docket. “You’re not going to get a lot of firms willing to spend that much time to get cert. granted. They’ll fall all over themselves to get the case once it’s granted. That’s an enormous public service that takes a real commitment on their [the clinic’s] part.”