Inside the Oral Arguments for Henderson: A Supreme Court Litigation Clinic Student Reports

Carine Stoick and Bill Curtin speak to the students in the Role of Counsel class

Clinic students Joel Johnson, Jennifer Maloney and Anna McDanal; Professor Dan Ortiz; clinic instructor David Goldberg; students Samuel Strongin and Peter Benson; and Professor Toby Heytens pause for a photo at the Supreme Court after the argument.

February 25, 2015

Jennifer Maloney, a student in the University of Virginia School of Law's Supreme Court Litigation Clinic, reports on the Henderson v. United States argument:

Members of the Supreme Court Litigation Clinic traveled to Washington, D.C. on Tuesday to hear clinic director Professor Daniel Ortiz argue Henderson v. United States.

Third-year law students Peter Benson, Joel Johnson, Anna McDanal, Jennifer Maloney and Samuel Strongin — collectively known as "Team H" — attended the argument with instructors John Elwood, David Goldberg and Toby Heytens. In the weeks preceding the argument, the students drafted the reply brief for the petitioner, mooted Ortiz and otherwise helped prepare for the oral argument. (More)

Representing petitioner Tony Henderson, Ortiz argued that the statute prohibiting felons from possessing firearms does not prevent courts from ordering the government to transfer firearms in its possession, owned by felons, to a suitable third party.

Rejecting the government and circuit court of appeals' position, Ortiz argued that courts "should have the power to approve sales and transfers so long as the recipients are not under the control or influence of the owner, [and] so long as they themselves are legally entitled to own and possess the guns."

Ortiz was able to establish the petitioner's position and exhaust the justices' questions in just over half his allotted time — leaving 14 of his 30 minutes for rebuttal.

For members of the clinic, though, the most gratifying portion of the argument came when Ann O'Connell, assistant to the solicitor general, took the podium. As O'Connell argued that only a sale by a federally licensed firearms dealer would avoid the constructive possession created when a felon selects the recipient of his firearms, the court criticized the government's change of position from that presented in the lower courts, and pointed out that position's flaws.

Justice Sotomayor went as far as to note she was "a little bit upset at [the government's] brief."

It was clear to clinic members that the petitioner's briefs framed the issue in a way that was helpful to the court. So clear, in fact, that the justices sometimes adopted the exact language of the reply brief. Both Justices Kagan and Scalia, respectively calling the government's position "internally contradictory" and "drawing a very artificial line," made jokes at the government's expense.

While it was thrilling to see the justices use the clinic's arguments while questioning O'Connell, it was also rewarding to see Ortiz argue before the court. Throughout the year, clinic students have countless opportunities to sharpen their legal research and writing skills under his guidance. By attending the argument, members were reminded they have much to learn about oral advocacy from Ortiz.

According to clinic student Joel Johnson, Ortiz "was impressive during the oral argument. He was never rattled by a question, and he was able to pivot smoothly from difficult questions to his key points. What I find most remarkable is that, when things seemed to be going his way, Professor Ortiz had the instinct to stop talking. He refrained from using nearly 10 minutes of the time" reserved for rebuttal. Ortiz also reinforced the importance of camaraderie in the legal profession, referring to O'Connell as "my friend" during rebuttal.

Of course, the clinic would not be as successful as it is without clients willing to allow students to work on their cases. Following the argument, "Team H" was able to meet, and have lunch with, Henderson and his wife, Linda. Amidst discussions about the oral argument and the clinic generally, both sides were able to express their gratitude to one another: Henderson thanked clinic members for their hard work and students thanked him for the great opportunity he gave them.

On a final note, the students who traveled to Washington were not the only contributors to Tuesday's argument. While "Team H" most recently worked on Henderson, many other clinic students worked on the case in previous semesters, while others tackled equally difficult and complex issues in other matters. Ryan Baasch, Matthew Brooker, Ryan Comer, Adam Crews, Nicole Frazer, Genevieve Hoffman, Trevor Lovell, Lide Paterno, Nicholas Reaves, Taylor Steffan, Jessica Wagner and Julie Wolf are also members of this year's clinic.

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