Easha Anand: One thing Mr. Ciavarini said is, Look, this felony money laundering charge, it ruined my reputation, right? I’m a jeweler, you’ve got to be able to trust me with precious gems. And I can’t tell you how much it has already restored my reputation. To have people know that the Stanford Supreme Court Clinic, the Stanford name, is representing me. I’ve had people calling me up who’d severed ties with me years ago, telling me, ‘I guess we were mistaken about you.’ And so that felt incredibly good for me in the sense to sort of feel like, whatever happens with this case, we’d already made a difference, just by showing up and agreeing to represent someone. And to me, that’s sort of the best use of the Stanford name I can think of, right? Using our resources to try to help restore the reputation of someone who had been targeted by the state in an unfair way.

Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day.

I’m Rich Ford, here with Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you have access to all of our new episodes as soon as they’re available. In this episode, we’re going to talk about the U. S. Supreme Court, how cases come to the Supreme Court, and how the Stanford Supreme Court Litigation Clinic handles those cases, and the clients behind some of the case titles.

Joining us is Professor Easha Anand, who joined our faculty in 2023 as the third co-director of the Stanford Law School Supreme Court Litigation Clinic, and Gareth Fowler, a third-year law student who’s been working with the clinic last winter and is continuing to work with the clinic in the spring.

Easha has had an incredible start to her career with us, having already argued two cases and gearing up for her third case this month. Welcome Easha and Gareth.

Easha Anand: Thank you so much for having us.

Pam Karlan: Well, it’s great. It’s great to have you here and I thought maybe we would start with you Gareth saying a little bit about how you came to be in the clinic, what the clinic does, and your perspective on it as a student?

Gareth Fowler: Yeah, absolutely. The shorter answer is it’s the best thing ever invented for law school, although that’s maybe not enough detail for the listeners. So, like all of our clinics at Stanford, the Supreme Court Clinic, at least when you initially apply and are accepted into it, is a full-time experience. For me, that quarter was the last spring, so the spring quarter of my second year at Stanford, where there’s a brief introductory period where you learn more from the professors about how Supreme Court practice works, how the Court operates, how to write effectively for the Court, and then you’re placed on a team with three or four other students assigned a case, and you’re just off and running. And depending on the case you’re assigned, that might be writing a petition asking the Supreme Court to hear a case. It might be asking the Supreme Court not to hear a case where our clients were successful in the lower courts, and we don’t want the Supreme Court stepping in and interfering with their victory, which is how we started with the case we’ll talk about later today.

Or it might mean being assigned writing the brief for a merits case the Supreme Court is going to hear, where you’re writing, trying to convince the justices that your side is right, and then working with the instructors or whoever else is arguing that case to prepare for oral argument.

Pam Karlan: So Easha, you came to the clinic last year and then joined us full time this year. When you think about what makes the clinical model distinctive from other forms of Supreme Court practice, because you did Supreme Court practice at a nonprofit before he came here and you did Supreme Court practice at a large law firm, what makes the clinic different?

Easha Anand: So it sounds perhaps obvious to say, but the fact that students are doing the writing–and, you know I have to confess I was a little skeptical before I joined Stanford– I kind of felt like, “really second- and third-year law students are writing briefs that are getting filed at the U. S Supreme Court?” But it’s true. I mean, the students produce every word. Sometimes it takes them 10 drafts, 20 drafts, occasionally 30 drafts, to get to the place where we feel comfortable filing it. But the fact that students are producing every word, I think both makes the work product actually much stronger, right, because our target audience at the end of the day often is law clerks who work for the justices who don’t look so different from our second- and third-year law students. And also means that every project that I work on has a sort of impact in two ways. It helps our client, most immediately. But it also hopefully trains another generation of advocates to share the kind of values and skills that the Stanford Supreme Court Clinic prides itself on..

Pam Karlan: So, how do we get our cases?

Easha Anand: So, the other thing to know about the Stanford Supreme Court Clinic is that Jeff Fisher and Pam Karlan, who’ve been running the clinic for nearly 20 years, have something of a legendary reputation. So, I would say a majority of cases come to us because somebody knows about Jeff or Pam and they know that their case is either headed to the Supreme Court and they want to stop it from getting there, right? They’ve won in the court below. Or they’d like their case to get to the Supreme Court and so they reach out for assistance. So that’s probably, I would say, about two-thirds of our cases. The other one-third of our cases are cases that we see kind of coming over the transom and we think: That’s a really interesting legal issue. We think our students would learn a lot working with this particular client and co-counsel. And we think this is the kind of case the court is likely to hear. And so either we want to be helping whoever the lawyer is on the case get this case heard, or we want to stop this case from being heard. And so we think it’s a good use of our resources to get involved in the case.

Pam Karlan: So Gareth, what did you work on last spring when you were in the clinic?

Gareth Fowler: So, like all full time students, I was assigned to two different cases during the quarter, splitting the quarter in half. The first case, which we’ll talk about today, that I was working on with Easha. is an immigration case that we internally refer to Mendez-Colin as that was the name of our main client. If you were to look it up, it’s been listed under Campos-Chavez at the Supreme Court. And the basic issue there, it’s a statutory case related to immigration law, the Immigration and Nationality Act, 8 U. S. C. 1229, which is now burned into my memory forever. Where the basic issue is when Congress revised immigration law in the nineties, they added a requirement that when the government was trying to remove a non-citizen from the country, they give the non-citizen a notice to appear, which is essentially a charging document that lists the case against the non-citizen, the reason why they’re seeking to be removed, and mong other things, the government is required by statute to tell the non-citizen the date and time of their first hearing, where the non-citizen is expected to attend. Despite that fairly clear statutory language, for about 20 years the government did not put the date or time on those forms. Instead, saying the date or time was TBD or some equivalent. And then the government would send a second form, which the statute refers to as a notice of change, informing the non-citizen that this is the time your hearing will actually be held.

And starting around 2017, the Supreme Court intervened, said that first form, the so-called notice to appear, that does not actually have the required date and time information, is deficient and doesn’t count as a notice to appear under the statute. Which means, because the government was doing this for a long time, there are a lot of non-citizens, including our client, Mr. Mendez-Colin, who have been through the process, despite the government failing to provide the required notice under the statute. And one of the ways that can really impact people, as happened with our client, is the statute allows, if you’re given the required notice and then don’t show up to your hearing, regardless of the merits of your case and your arguments against removal, the government can just automatically remove you in absentia, and that’s the end of your case.

So that happened to our client. And our client is now trying to use a different provision of the statute, 8 U.S.C. 1229 AB5c2, which allows a non citizen who was removed in absentia but was not given the required notice, to petition to have his case reopened and get a new hearing where he can go and argue that he actually has a right to stay in the country. And the government is contending that even though our clients were not given the notices to appear that had all the required elements, they nonetheless were given the notice required under the statute and therefore are not eligible to use that provision to try to reopen their cases.

Pam Karlan: And what was your other, what was your other case?

Gareth Fowler: So the other case I worked on in the spring of last year, as a full time student, is United States v. Jackson, which has been consolidated under United States v. Brown at the Supreme Court.

Pam Karlan: There’s something about you that just causes them to grant several cases and then group them, I guess.

Easha Anand: We blame you entirely, Gareth.

Gareth Fowler: And as I said earlier, we started this case trying to get the Supreme Court not to hear the case of Mendez-Colin because he had won in the Ninth Circuit and didn’t stand to benefit from the Supreme Court hearing it. That worked incredibly well such that the Supreme Court nonetheless granted the case and Easha got to argue it in January. So the second case United States v. Jackson is a criminal case with a recidivism statute, the Armed Career Criminal Act, which imposes a heightened mandatory minimum for criminal defendants who have certain prior qualifying offenses. And the dispute there is whether a state drug conviction counts as a qualifying offense if the state statute that you were convicted under punishes a drug that is not currently banned federally, even if it was banned federally in the past when you had the state conviction.

Pam Karlan: Yeah, I mean, this is one of seven cases I think we have at the Supreme Court this year, and the Supreme Court only took 60 cases this year, so you can get a sense of the amount of the Supreme Court’s docket that we handle in the clinic. But the first argument this year that we had in the clinic in October was in yet another case, and you’re going to get a sense of the range of the kinds of cases we do here from the three cases that Easha is arguing or has argued. And so let’s start with Easha’s first case, Murray against UBS. Tell us a little bit about how the case came to us and what happened in the case.

Easha Anand: Sure. So this is a pretty typical pattern. So this is a case where we represented a man named Trevor Murray. Trevor worked for UBS as an analyst and kind of by federal regulation, he’s supposed to be guaranteed some amount of independence. So the idea is that the research branch of these banks is independent of the sales arm of these banks. You’re not supposed to mix the streams to the point where the desks are physically separated. Now that didn’t happen at UBS. The sales desk was putting pressure on the research desk to skew their research.

And so when they were publishing these reports and forecasts for the market, the sales desk was sort of pressuring them just to make certain products that UBS was pushing sound more favorable. So Trevor did what I think we all hope we would do if we were put in that position, which is that he reported it. He reported it to his supervisor. He said, I think what’s happening here is illegal. And not 30 days later, he was fired from his job. That was almost 10 years ago now. So he filed suit under a provision of the Sarbanes-Oxley Act, which protects whistleblowers. It says you can’t be fired because you reported misconduct.

He won, so a jury believed him and awarded him a verdict. But on appeal, the court said the way that the jury was instructed in this case was inappropriate, and so we’re vacating that verdict. So his really stellar trial lawyer happened to know someone who knew someone who had worked with Jeff Fisher, our third co-director in the past, and said, “Hey Jeff is really, really good. His clinic is really, really good at guiding cases to the Supreme Court.” So that’s how the case kind of came to us. So I argued the case in October, and what’s unique about the Sarbanes-Oxley Act is it doesn’t just say someone can’t be fired because they reported misconduct, it explains exactly how that’s to be proven.

So first, the plaintiff, that is the person who was fired, has to show that his conduct, the act of reporting, was a contributing factor in the firing. Then the burden shifts to the employer to show, if they can, that they would have fired him anyway. And so it’s sort of an unusual scheme. Relatively speaking, it’s pretty friendly to the plaintiff, the person who’s trying to prove that what happened was wrong. And yet the Second Circuit and UBS wanted to kind of undo that burden-shifting framework and say, no, no, no, it’s all on the plaintiff to prove some sort of retaliatory intent or kind of animus and that they, they dislike the employee.

So I’m excited to report that we got a unanimous win from the United States Supreme Court. Unfortunately, it’s only the sort of start of the journey in some ways for Trevor. Now, he’s back down at the Second Circuit and still fighting to make sure that the jury verdict remains intact. But we’re incredibly proud to get to represent him and I think it was particularly meaningful for our students because you know, I think all of us will at some point be in a professional setting where we see something going on that perhaps doesn’t seem right to us. Maybe it’s illegal. Maybe it’s not illegal, but we think it’s just wrong, and I think it was really inspiring for all of us to get to work with someone who said something, suffered the consequences, and kept fighting.

Pam Karlan: Yeah. I mean it was a really interesting case. It was your first argument at the Court …

Easha Anand: So it was…

Pam Karlan: You’ve done a ton of arguments in the courts of appeal. What was different about the Supreme Court?

Easha Anand: So I think two things were really different for me about arguing at the Supreme Court. The first is the playing field is just much more open, right? When you argue in the lower courts, You have a lot more precedent to contend with because lower courts just produce a lot more cases. At the Supreme Court, the, often the reason that they agreed to hear the case is there’s not a case that’s squarely on point. And even if there are cases that are sort of adjacent, you know, it’s the Supreme Court. They can kind of do a little bit more what they want. And so, whereas preparing for an argument in the lower court, you tend to go back and read dozens of cases that are kind of in the issue area that you’re arguing over, at the Supreme Court, that’s a much, much smaller part of your preparation. So that can be really exciting, right? You get to make many more arguments from first principles. You are not trying to navigate between a bunch of kind of established rules. You’re kind of telling the court what makes sense in the first instance.

And it can be really daunting, right? Because there’s much less you can take for granted. The other thing that was sort of unique about this argument is, I was really aware of kind of the ways in which getting to the podium at the Supreme Court sometimes is considered this sort of, you know, pinnacle of an appellate lawyer’s career, and my experience around that is that you know, I hope that skill is some part of the mix. I hope that I was there in part because I had all this experience arguing appellate cases. But what really made the difference in terms of my getting to be the one to argue this. It was the fact that Jeff and Pam, my co-directors, vouched for me. It was the fact that my client trusted in me. It was the fact that our co-counsel, who would have been kind of within his rights to say, you know, I’ve litigated this case from day one, to say that he wanted to be the one at the podium. And as you’ll hear, kind of as Gareth alluded to, sometimes you kind of wind up at the podium because you didn’t succeed at an earlier stage. Gareth and I really tried to keep the second case that I argued out of the Supreme Court, and the only reason I wound up arguing it is because we were unsuccessful at that. And so I think that getting to the podium really taught me in some ways that this idea that being at the podium at the Supreme Court is the kind of thing everyone should aspire to, it’s a little bit misleading.

There’s a little bit of luck, and actually a lot of the time you’re there because actually, you weren’t skilled enough to keep the case away from the court in the first instance.

Pam Karlan: Yeah, I mean, the last two cases I argued were both cases where we filed briefs in opposition. But I like to think it’s not really my fault. Because in both of those cases, the court took another case at exactly the same time that had come out the other way, and that’s something that, you know, that describes the majority of cases the Supreme Court takes are cases where there’s a conflict in the lower courts. And both times, as they say, they took another case that was on the other side at exactly the same, at exactly the same point.

Easha Anand: Right. And, and, and, Garret’s in my defense, in our case, the United States government was petitioning the court and saying, if you don’t step in, hundreds of thousands of people are going to stay in the country that are not supposed to stay in the country. And that was very hard for us to fight back against.

Pam Karlan: So I’m going to ask you a question about the oral argument and then ask you a question about the oral argument in Campos, Chavez, Mendez-Colin. And there’s a third guy too. Yeah, that’s right. So what was different about the second argument for you than the first?

Easha Anand: So I think the fact that we had been trying to keep the case out of the court just gave a really different valence to my presence there, right? So in my first case, the worst case scenario had already happened, right? Our client was heading for a retrial in some ways that took the pressure off. I couldn’t make things worse, right? In Mr. Mendez-Colin’s case, he thought he was gonna get to stay in the United States And then he was kind of plucked from obscurity a little bit his case happened to tee up this legal issue And the United States government decided his was the vehicle they wanted to get the Supreme Court to resolve this case.

And so this guy who thought that he, you know, he’s been in the U. S. for decades, he has a U. S. citizen wife and kids who thought he was going to get to stay in the United States, suddenly is the face of this Supreme Court case. The stakes walking in felt very different. I think when you’re defending a win below because things could get worse, right? The status quo is pretty good for him. You didn’t want to be there. And so for me, that was a big difference between the two cases was kind of walking in, in one case, feeling like there’s nothing to lose. And in the other case, feeling like, wow, there’s actually a lot to lose and we’re still waiting to hear the outcome of that case.

Pam Karlan: Yeah, I mean, and one of the great things about the fact that we have full-time clinics here is that the students in the clinic can go to Washington and spend a couple of days there, sometimes up to a week there, depending on how the preparations are going, getting ready to see the case they worked on and the like. So Gareth, tell us a little bit about your trip to D. C.

Gareth Fowler: Yeah, so I was lucky enough to get to go to D.C. last fall to hear the Jackson criminal defense case be argued, and then was also there in January for Easha to argue Mendez-Colin. It is a really fascinating experience being at the court, seeing, How much everything is dressed up–the ceremony. It’s an institution that takes itself very seriously, certainly. And I remember I was talking with some of the other students who had worked on the Mendez-Colin case after the argument and thinking about how divorced both this ceremony is and, you know, hearing the justices go back and forth on some pretty abstract legal questions about what does the word “or” mean in this sentence? What can we get from the legislative history, if anything, about this provision? And the basic thing we were fighting for, which is this person who’s been in the country for 20 years, who’s been in this kind of legal limbo with an in absentia order against him since 2004, give or take, who’s finally hearing his case go to the Supreme Court.

I’m very curious how that would sound to someone who knew the factual background of the case, so would kind of intuitively think what would matter would be his life, his connections to the country, his background, and hearing the Court go back and forth on these very abstract high-level questions was interesting, kind of dispiriting, but also kind of exciting also that you hear the justices batting around the same hypotheticals that we had spent weeks going back and forth on ourselves, knowing that we had good answers to some things, hearing some of the justices kind of volunteering the answers we wanted them to have.

Pam Karlan: Yeah, I mean, that’s one of the things that I find like doing the dry runs beforehand. You never want somebody to ask you a question at the Supreme Court that you’ve never heard before. So it is kind of like there’s that passage in “The Right Stuff” where they talk about how they trained the astronauts so that nothing would feel new for them when they, when they blasted off. And I think there’s a little bit of that also with the, with the, with the Supreme Court. So Easha, tell us a little bit about the third case. This is a case you’re going to be arguing in a couple of weeks. How did this case come to us and what’s the case about? The Chiaverini case.

Easha Anand: That’s right. So April 15th, I’ll be arguing a case on behalf of Yasha Chiavarini, who’s a jeweler in Napoleon, Ohio. And so this case kind of starts because he winds up buying some jewelry that turns out to have been stolen. And over the ensuing few weeks, he’s trying to figure out what to do about this jewelry. And he winds up getting into a little bit of an altercation with police officers. His lawyer tells him to do one thing, police department says another. He says, I’m going to try to, you know, figure out what the right thing to do is, and police don’t like this. And so what they wind up doing is getting an arrest warrant. For the arrest warrant, they find two charges for which there’s actually probable cause. So there’s a charge, there’s a licensing violation, and there’s a minor misdemeanor.

But then they decide to fabricate evidence to add a felony money laundering charge to the warrant. So they arrest him, charges are eventually dropped, but not until he’s spent several days in jail. And so he files a lawsuit. He says my Fourth Amendment rights were violated because you’ve made up one of these charges. And the Sixth Circuit, which is a circuit that covers the state of Ohio, says no. As long as there’s probable cause for some offense, that is, as long as you have reason to believe he’s committed some crime, it doesn’t matter if you completely made up another crime. Now I was really familiar with this issue because in my prior job at the MacArthur Justice Center, I’d worked on a number of cases where we were sort of filing lawsuits about police misconduct and the Court said something similar.

And so this case actually came to us because I was kind of keeping an eye out for this issue, saw this case and sort of thought to myself, I really think that this is a, this is the wrong legal rule. And it’s a legal rule that’s not just wrong, but in sort of an intuitive way, but it’s wrong in a way that the Supreme Court really cares about.That is it’s wrong as a kind of historical matter. Like if you look at the kind of common law and historical backdrop, this is not the way that things are supposed to work. And so, you know, a group of students helped me write the petition, a group of students helped me write the reply, the Supreme Court granted cert, and we’ve been working on briefing it ever since, and I’ll argue it in in less than two weeks in the Supreme Court.

Pam Karlan: And, I’d love if you feel comfortable about it, telling the story of what Mr. Chiaverini said when he came, when he flew out to Stanford for– we hold workshops on each of our cases where everybody in the clinic will sit around and talk about the draft and give reactions. And I, I found it like an incredibly useful process for getting smart, a set of fresh smart eyes on your work so that you can improve it, make it clearer and the like. And Mr. Chiaverini, our client, flew out here for the workshop with our co counsel.

Easha Anand: That’s right. And so we had an incredible time and we really enjoy getting to spend time with our co-counsel and our clients. We have meals with them. We show them around campus. This particular visit was, I think, especially meaningful for me and for my students because one thing Mr. Chiaverini said, look, this felony money laundering charge, it ruined my reputation, right? I’m a jeweler. My reputation is built on being able to, you’ve gotta be able to trust me with precious gems, and I can’t tell you how much it has already restored my reputation to have people know that the Stanford Supreme Court Clinic, right, the Stanford name is representing me. I’ve had people calling me up with severed ties with me years ago telling me I guess we were mistaken about you. And so that felt incredibly good for me and the students to sort of feel like whatever happens with this case, and at that point we hadn’t even gotten cert granted, so it was not even clear the Supreme Court was going to hear the case, we had already made a difference just by showing up and agreeing to represent someone. And to me, that’s sort of the best use of the Stanford name I can think of, right? Using our resources to try to help restore the reputation of someone who had been targeted by the state in an unfair way.

Pam Karlan: That was one of those moments you never forget, being in the room when somebody says something like that. And the opportunity to work with the folks that we’ve represented in our various cases has been just one of the, I think, one of the high points of my career. And one of the high points perhaps, Gareth, of your so-far short but soon to be very eminent career. And, and Easha’s. So thank you so much for coming and sharing those, those reactions and stories with us.

Easha Anand: Thank you so much for having us.

Pam Karlan:  We have time for a couple of questions, if folks want to ask questions.

Student Question 1: Thank you so much. I am curious to know to what extent you are considering and contemplating the personalities or philosophies of the nine justices in your preparation?  Is it more, “I’m going to, you know, these are my four best arguments, these are the ones I’m going to hammer home regardless of who’s on the bench,” or is it more kind of active behind the scenes, “I think these justices are gettable, these justices are kind of not really going to resonate with this argument. Here are the three that we think we can get to get to five, and I’m going to sort of tailor and leave Easter eggs for these kinds of justices that we think might be able to sway towards our side.”

Pam Karlan: The latter. I mean, no, I mean, seriously, you, you have to know the court you’re in front of and Justice Brennan, who was on the court when I clerked, used to say the most important thing that a Supreme Court Justice can do, and it’s also the most important thing an advocate can do, is count to five. And so you, you know, one of the differences arguing at the Supreme Court rather than any place else is you know who your bench is going to be. In most courts of appeals, you find out when you walk into the room which three judges are on your panel and you’ve written your brief, you know, months before and you wouldn’t know who’s gonna do it.  So, yeah, I mean, I make different arguments today than I would have made in 1990, arguing a case. This court is more textual or avowedly textual, I guess I should say. They’re more avowedly historical. They are less likely to talk a lot about the legislative here, the legislative history and like, and you have to take that into account. And one of the things that’s changed over time is knowing who your fifth justice is. I mean, for a long time, it was pretty clear. It was Justice Powell, and then it was Justice O’Connor, and then it was Justice Kennedy, and then there was a very short time where it was Chief Justice Roberts. And now, I’m not sure that you necessarily know who your fifth justice is.

Student Question 1: Or your fourth.

Pam Karlan: Or your fourth. Or your third.

Student Question 1: Yeah.

Pam Karlan: Yeah.

Student Question 2: Thank you so much. I’m curious about, in the Mendez-Colin case, what was the strategy for arguing against the government’s argument that was quite consequentialist, saying that there’s just going to be a lot of cases that come up. I’m curious how, how do you navigate that legal argument? What was the strategy you all used?

Gareth Fowler: Well, we didn’t succeed, so I don’t know. So that was, I think, most relevant, the first stage of the case, where once the Supreme Court hears it, the consequentialist matters, but we can be a bit more aggressive, disarguing this is what the statute says. If you want a different result, Congress can change the statute, and that’s sometimes persuasive. For the brief in opposition, where we were trying to convince the Court not to hear the case, where part of what you’re trying to say is that the Ninth Circuit got it right, so you don’t need to disturb it, but also what you’re trying to say is: this issue isn’t that important, which is kind of a weird thing to be telling your client. Like, we’re going to tell the Supreme Court that your story doesn’t matter, which is kind of part of the strategy. Or, this case doesn’t present the questions. It’s too complicated. You don’t want to get involved. So we tried to push back on some of that argument empirically, saying we don’t know how many of these cases there actually are. We don’t know how many of these people are realistically going to file to reopen their cases.

And because ultimately all you get if you succeed is a hearing, this is only ultimately going to matter for people who had strong merits, reasons for staying in the country. So there is some fairness of shouldn’t we let these people who have a reason to stay in the country, and who never got a fair hearing because they didn’t show up to their initial proceeding, get that opportunity.

And then we’ve, Mr. Mendez-Colin’s case is kind of complicated with a lot of different procedural dynamics in the lower courts in Arizona and an immigration court. So we tried to amplify that as much as possible just to make the issue seem confusing and try to suggest to the Court they might have problems really answering the core legal questions because of all the different facts and complications.

But ultimately, they did take the case, so.

Easha Anand: Yeah, you know, I think the other part, so all that is exactly right. The other thing I think we tried to say is like, look, to the extent there are hundreds of thousands of these cases, it’s because the United States government for decades just ignored the plain text of the statute. And so it, it feels like it’s a little bit unfair for them to now come to you, Supreme Court and say, well, this is really hard for us when it was sort of a problem of their own making. We’ll see how effective any of that was when the opinion comes out, but that was sort of part of the strategy too.

Student Question 3: Yeah. Obviously before going up and arguing these cases, you’re spending months, if not years, preparing, but let’s say the week before, the night before, the morning of, is there anything that you do in particular that makes you feel set up for success?

Pam Karlan: Well, I, the day of, I drink a lot of cranberry juice and eat bananas and nothing else because I know those things work for me and I’m not going to take any chances. One of the things that’s really striking about the Supreme Court, first of all, the room is really small. It’s not as big as this room. This room is bigger, I would say, than the Supreme Court. And when you’re arguing, you’re right up in front of the justices. They’re sitting down, but they’re sitting down on a raised dais and the lectern, so you’re looking them in the eye and everything, and you’re totally unaware of anything else that’s going on in the room. And it’s a conversation with them, and so I only take up like one manila folder with me to the, to the lectern, and I, I’ve written stuff on file cards, and I keep moving the file cards around and by the night before the argument, I’ve kind of pasted the file cards onto the folder in in an order where I’ve got like the statutes I want here and like, but once you’re up there, the adrenaline keeps you going.

What I do beforehand, I do at least three dry runs of the argument in front of people who ask me hard questions and they don’t pretend to be one of the justices. I mean, so it’s not like somebody gets that because then for many years it would have been whoever was playing Justice Thomas just wouldn’t ask you a question, and that’s not useful. And now he always asks the first question in the current way the court operates And so I try to practice with them and then I try to walk around and talk the argument while I’m walking because I find that that makes you give shorter answers.

And so that’s really helpful. And then when I get to Washington, I always take a walk to the FDR Memorial and to the Martin Luther King Jr. Memorial cause those, those pump me up and that’s, that’s what I do.

Easha Anand: That’s a great ritual, I love that, maybe I’ll adopt that. I am I’m lucky enough that my parents live outside of Washington D. C., so they generally come down and have dinner with me the night before, which is, is at the very least good for taking my mind off the argument itself. More generally, I’m a pretty big believer, I don’t always succeed in this, but I’m pretty but I’m a pretty big believer that if you know something, you’re going to know it by the day or two before the argument and that lasts 24 or 48 hours, it doesn’t make sense to cram. So before my very first argument, I actually decided to go to a conference out in Williamsburg, Virginia and do a panel on something totally unrelated to the case, on the theory that it wasn’t gonna actually do me any good to sit in stew for the last two days before the argument. And then I’ve been lucky enough that at all three of my arguments so far, I’ve had students who worked on the case there with me and so often the night before or the morning of, I’ll have some last minute thought about a hypothetical that I want to tweak and we’ll send Gareth a panicked email and and get back always a really insightful and thoughtful response and kind of getting that like one last reassurance that our strategy is the right one is always really helpful for me walking into our…

Pam Karlan: Yeah. I get a question at the moot I did in Georgetown in Bostock about one of, some, I said in response to a question where somebody had asked me, well, wasn’t homosexual sex illegal everywhere in the United States in 1964? So how could Congress have wanted to provide employment discrimination protections to gay people? And I said, well, you know, in a lot of states it was only male homosexual activity that was. And somebody said, Really? And so I thought, I better get, like, the actual number on this. And so the, the three students who were on the team who were in Washington with me did a 50-state survey over the weekend before the oral argument happened. Like, what were the sex laws of every state in 1964?

Easha Anand: See, so you got off easy, Karen.

Pam Karlan: But it was kind of interesting for them.

Student Question 4: I was wondering if you could speak on like student involvement in the long term in these cases after the clinical structure ends and how, how that works.

Pam Karlan: Well these cases actually are probably the shortest cases from beginning to end at the Supreme Court. I mean from the time you file a cert petition until the time you get an opinion from the Supreme Court in a case, is never more than about a year and a half.

Easha Anand: I think that’s right. And the other piece of the answer is it sort of depends on the students. So some students like Gareth are gluttons for punishment. So I don’t know. You did a full time clinic and then you worked with me over the summer. And then you came back in the fall to kind of mentor a team of students who are doing the full-time clinic. And then over the winter quarter, you’re working with me on another case that has continued to this day. So the short answer is that some students do the full time clinic and that’s a really wonderful experience and then they go on and spend their time with other things. Some students come back and come back and come back again. Sometimes to work on the same case and see it through more of that kind of year and a half life cycle, sometimes to work on totally different cases because they’re just excited about the clinic and the instructors and what we have on our docket. And yeah, I don’t, I don’t know if maybe, I hope you don’t regret that decision.

Student Question 5: I was curious about how you decide which cases you choose to work on. Is it, is it just that people refer them or you’re interested in them and then you pick all of them up or who decides what cases you work on? Is it divided between you all?

Easha Anand: So yeah, so we’re looking for basically two things. The first is kind of pedagogical value, right? So will this be a case where students will learn something? Will they learn something from our co-counsel, right? We don’t want to work with someone who’s going to make it really challenging to actually dig into the substance because we’re managing a personality or who won’t let students do real work. Will they learn something from the client across the kind of course of the quarter? Will they get exposed to a lot of different kinds of cases, some civil, some criminal, some cert stage, which is the phase of kind of winnowing the cases the court hears some on the merits. So that’s kind of one axis we’re looking at.

The other one is kind of public service. Like where do we think our research are going to do? Good. Where are they going to close a gap and resources between the two parties? Where will good lawyering matter, right? There are some cases that unfortunately, no matter how exceptional, how much time our students put in, how much skill they put in, there’s just no way the Supreme Court is going to hear the case for whatever reason. And we decide not to put our resources toward those cases. So we sort of try to balance those two pieces of the puzzle. And then our students, for their full time experience, actually have no say in the cases that they work on.

When they come back later on, they often can have a little more choice. But we believe that because of the way our clinic is structured, where every student has a kind of primary case they’re working on, but is engaged in a bunch of other cases, that students kind of get the best of all worlds where they really get exposed to all the cases and it’s really important to us to be able to kind of teach students how to dig into something that maybe they didn’t know that they know anything about or didn’t care about before walking to the clinic, and we think that’s part of the skill we’re cultivating is: We’ll put you into a a case that you may or may not have any interest or background in, and by the end of it, trust us, you’ll be really passionate about this issue and know a ton about it, and a year later be able to recite the precise statutory subsection that you worked on.

Rich Ford: Thank you. So thank you, Easha and Gareth. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. It’ll help us to improve the show and to get new listeners.

I’m Rich Ford with Pam Karlan. Thanks and see you next time.