Called to Take a Side: Helgi Walker ’94 Litigator accepts justice’s friend-of-court invite
by Mark F. Bernstein ’89
Call it a service to the law. Call it a service for an old mentor. But when Helgi Walker ’94 received a call in January from Justice Clarence Thomas, asking if she would be willing to serve as an amicus, appointed by the Supreme Court to brief and argue a case the court had decided to hear, her answer was an immediate yes.
The case, Welch v. United States, raised the question of whether the court’s 2015 decision in Johnson v. United States, striking down a provision of the Armed Career Criminal Act, applied retroactively in federal habeas corpus proceedings. Because the government (as well as the petitioner) believed that it did, the government was unwilling to defend a contrary judgment from the 11th Circuit Court of Appeals. In such relatively rare situations, the Supreme Court “invites” a lawyer to present the appellate court’s side of the case as a friend of the court. Thomas, the circuit justice for the 11th Circuit, asked Walker, his law clerk in 1995-96, to defend the lower court’s ruling. The full court later confirmed her appointment.
Appellate litigation is familiar for Walker, who is a member of Gibson Dunn’s appellate and constitutional law group and co-chairs its administrative law and regulatory practice group. Although she had argued cases throughout the federal courts of appeal, she had never argued before the Supreme Court and had less than a month to research and write a brief on a complex area of law. Within hours of Thomas’ phone call, she had two habeas treatises on her desk and had assembled a team of associates; together they worked 14-hour days over the next several weeks. Walker also held three mock oral arguments to prepare for the justices’ questions.
On the morning of her real oral argument, the Supreme Court chamber was filled with family, friends and colleagues, including her partner, Eugene Scalia, son of the late justice, and her father, emeritus professor W. Laurens Walker III, who taught both federal courts and civil procedure during his long career at the Law School.
Although the court ruled, 7-1, that Johnson does apply retroactively, Justice Anthony Kennedy praised Walker in his opinion, writing that “she has ably discharged her responsibilities.”
“It was clear from the very beginning that it was an uphill battle, given the government’s concession,” Walker said. Still, she and her team took as their motto a paraphrased line from Atticus Finch in “To Kill a Mockingbird”: “Simply because we may be licked is no reason for us not to try to win.” The side for which she advocated may have “lost,” but Walker views her team’s service as a victory.
“I feel that we did what Justice Thomas and the court asked us to do, which was to give the justices the very best briefing and the very best argument in defense of our side of the case that could be had.”