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Inside the Supreme Court Clinic: Instructors Argue 2 Cases, Same Day

Supreme Court Litigation Clinic E-mail  E-mail   print  Print
The Supreme Court of the United States heard two cases argued by instructors from the Law School’s Supreme Court Litigation Clinic on March 21st, a first for the five-year-old clinic. Professor Dan Ortiz argued Borough of Duryea v. Guarnieriat 10 a.m. and clinic instructor Mark Stancil ’99 took on Fox v. Vice one hour later. The Court receives approximately 10,000 case petitions each year, and grants and hears about 75 to 80 cases. Including upcoming arguments, the clinic has landed eight cases before the Supreme Court since the course began in 2006.

Clinic student Wells Harrell offers this account of the day’s events.

The Supreme Court Litigation Clinic reached a milestone when, for the first time in its history, the clinic argued two cases back-to-back. That morning, nearly everyone involved in this year's clinic could be seen either at counsel table or in the gallery. Current clinic participants who attended the oral arguments wereStewart Ackerly,Steph Cagniart,Chris Cariello,Will Carlson,Martha Kidd, Sterling LeBoeuf,Brinton Lucas, Adam Milasincic,Noah Mink, Tristan Morales, and myself. Also attending the arguments was one of last year's clinic participants, Sarah Robertson, who had worked onGuarnieriat the certiorari stage and is currently clerking on the 11th Circuit, as well as clinic instructors John Elwood, David Goldberg, and Toby Heytens ’00.

 At 10 a.m. sharp, the marshal called the Court to order, and the Justices took their seats. After admitting new members to the Supreme Court Bar and announcing two opinions, the Court heard arguments for the two clinic cases.

Representing the petitioner inBorough of Duryeav.Guarnieri, Dan Ortiz argued that the petition clause does not protect a public employee's petition about a matter of purely private concern. He quickly drew questions about whether the proper test for petition clause claims by public employees might focus on whether the petition addresses government as employer or as sovereign.

Following a short break, the Court heard from the petitioner inFoxv.Vice, who argued that a defendant against a frivolous federal civil rights claim cannot receive attorney's fees if the plaintiff has asserted a factually interrelated, nonfrivolous state law claim. Mark Stancil argued for the respondent afterwards and immediately noted that "inclusion of even a frivolous section 1983 claim imposes significant additional burdens as part of the litigation." Noting that "[s]ection 1988," the fee-shifting statute at issue, "does not reference state law claims that may be factually overlapping," [Stancil] stated that a party defending a frivolous section 1983 claim is eligible to receive at least some attorney's fees.

 [Ortiz] and [Stancil] performed spectacularly. Both spoke with confidence, clarity, and conviction. They showed a command of the factual and legal issues that made their analysis credible and persuasive. Nowhere was this command more evident than in their responses to difficult questions; I cannot recall a single instance in which either of them dodged a question, or made a misstatement of fact or law. Watching these skillful lawyers, and seeing first-hand reflections of our assistance in crafting their briefs and presentations, made observing the arguments immensely satisfying.

After the Court had adjourned, the attending clinic instructors and participants enjoyed lunch at a restaurant in nearby Union Station. [Ortiz] invited a special guest: Eric Schnapper, the opposing counsel who argued for the respondent inGuarnieri. In addition to reflecting on how the clinic's work affected his litigation strategy, Schnapper (and Ortiz) stressed the importance of credibility andcamaraderieamong lawyers. Seeing these two lawyers sitting side by side and amicably chatting just hours after arguing against one another really drove the point home, as did Chief Justice John Roberts’ reference to [Stancil’s] opposing counsel as "[y]our friend" during argument.

The Supreme Court will hear four cases from the clinic this term, a school record. Professor Jim Ryan ’92 arguedKevin Abbott v. United Statesin October and clinic instructor John Elwood argued Nevada Comm. on Ethics v. Carrigan in April.