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Posted Aug. 26, 2010

Heytens Returns to Classroom from Solicitor General’s Office

Heytens

Professor Toby Heytens returns to the Law School this semester after three years representing the federal government before the Supreme Court.

Heytens took a leave of absence from the Law School in 2007 to serve as an assistant in the Solicitor General’s Office. During that time, he was heavily involved in 12 cases before the court and argued six.

“It was somewhere I very much wanted to work and arguing a couple of cases before the Supreme Court was something very high on the list of things I really wanted to do during my life,” Heytens said.

It was Heytens’ second time working at the Solicitor General’s Office. He graduated from the Law School in 2000, and clerked for then-Chief Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeals before beginning a yearlong Bristow Fellowship with the Solicitor General’s Office.

“I had a great time; I loved working there,” he said. “I thought at the time it would be awesome to work there again at some point.”

After the fellowship, Heytens clerked for Supreme Court Justice Ruth Bader Ginsburg, and spent time in private practice at O’Melveny and Myers in Washington, D.C., before returning to academia. He joined the Law School faculty in 2006.

A year later, however, Heytens got an e-mail from then-Solicitor General Paul Clement, who he’d worked with during his fellowship, mentioning an opening in the office. After some consideration and consultation with Professor John Jeffries, who was dean at the time, Heytens decided to take a leave of absence and accept the position. He moved to Washington, D.C., and joined what he described as a tight-knit group of lawyers working in the office.  

“It’s a really unique office, and not just because you get to represent the federal government before the Supreme Court,” Heytens said. “The solicitor general is essentially right below the attorney general on the org chart, but the office only has around 25 lawyers total, so you actually know everyone.”

During his time there, Heytens was involved in cases on topics across the legal spectrum, including immigration, bankruptcy and original jurisdiction. However, most of his cases were criminal, including three of the six he argued in front of the Supreme Court.

One case, Maryland v. Shatzer, centered on how long police must wait to question a criminal suspect who has been read his Miranda rights if the suspect requests legal representation. The justices reached a unanimous decision in favor of the government.

“When I first started in the office, Paul Clement said to me that you should argue at least three types of cases: You should argue one case that you couldn’t possibly lose. You should argue one case that you couldn’t possibly win, and you should argue one case that you could at least plausibly either win or lose. And I think I got that during my time there,” Heytens said.

Though his experiences as a Bristow Fellow and as a Supreme Court clerk had familiarized him with the Supreme Court building, Heytens said there was no adequate preparation for the brief moment of intense panic just before an argument.

“The first thing that anybody who ever stands behind the lectern at the Supreme Court realizes is how close the bench is,” he said. “As in ‘Wow – are they close.’ The chief justice can’t be more than eight feet away from you. The bench is curved too, so they fill your entire field of vision. You don’t really see anything except the nine of them. It’s fairly intimidating.”

Heytens said the case of nerves quickly fades once the arguments begin, and said he considers the experience of practicing in the nation’s highest court to be an invaluable one, and not just the part that occurs during arguments. The legal writing at the Supreme Court level is often without peer, he said.

“The percentage of excellent briefs is so much higher than almost anywhere else. You pick up a really exceptional one and you think ‘Wow,’” Heytens said.

Exposure to that level of writing is part of what makes the Supreme Court Litigation Clinic a valuable experience for Law School students, Heytens said. In the spring, he will join the clinic as an instructor.

“If you want to be a good writer, read a lot of stuff that good writers produce and think about what makes it good,” he said.

For about a year, Heytens worked under Elena Kagan, who served as solicitor general prior to her appointment to the Supreme Court. Because he was part of the office, Heytens was able to attend the public announcement of her nomination in the White House’s East Room, one of two times he was in the same room as President Barack Obama.

“She is incredibly smart,” Heytens said of Kagan. “I don’t know if it’s something that she learned as dean at Harvard Law School, or if it’s just something that made her such a great dean, but she is very good at listening to people and very good at soliciting opinions. And then she is very decisive when she makes up her mind about what she wants to do.”

Though he enjoyed the experience of working for the Solicitor General’s Office, Heytens said he’s also excited about his return to the classroom.

“The longer that I was away from here the more I missed being here. I had this realization the year before last that everybody I had ever taught here had graduated,” he said.

Heytens said he’s already been impressed with the quality of the students he has taught, including in first-year classes.

“Their credentials are amazing,” he said.