A Good Path to a Supreme Court Argument? Clerk for a Justice

[WSJ_law_blog]

The perques to a U.S. Supreme Court clerkship? Let us briefly go through them: there’s the massive resume fodder, of course. And these days, huge bonuses often attach post-clerkship. Not to mention, we hear that working inside one of the Court’s inner sactums is pretty darn cool, even if the hours are long. And as a SCOTUS clerk, you can feel safe in the knowledge that we here at the Law Blog are more than a tad bit envious of you.

Now if all that’s not enough, here’s another reason, courtesy of a Tony Mauro story in this week’s Legal Times: getting calls from justices asking for you to handle arguments in front of the high court.

According to Mauro, occasionally a respondent in a Supreme Court case will abandon the lower court decision that the petitioner is challenging. “That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated,” he writes. When that happens, often the respondent needs a Supreme Court advocate and most often taps a former clerk.

An example, according to Mauro:

In the 2000 case Dickerson v. United States, a convicted bank robber challenged a controversial decision by the 4th U.S. Circuit Court of Appeals. The appeals court ruled that a long-ignored federal law trumped the famed Miranda v. Arizona decision requiring police to inform arrestees of their right to remain silent.

But the Clinton administration did not want to defend the appeals court ruling, so the Court appointed Paul Cassell, a former Warren Burger clerk, to do so. Cassell, then a University of Utah law professor, had long espoused the view taken by the 4th Circuit. Cassell lost, but a year later, President George W. Bush appointed Cassell to a federal judgeship.

Getting that call can reportedly open up possibilities to a career as a SCOTUS advocate. Mauro calls it “a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks,” including John Roberts and Maureen Mahoney.

It hasn’t happened in five years, says Mauro, but two instances have recently cropped up. One involves an upcoming case which asks whether a federal appellate judge can increase a defendant’s criminal sentence even if the government hasn’t asked for it. The Eighth Circuit said yes, prompting an appeal from defendant Michael Greenlaw. But the government told the Court it disagrees with the 8th Circuit too.

So Justice Samuel Alito called Sidley Austin’s Jay Jorgensen (pictured), who clerked for Alito at the Third Circuit and then again at the Supreme Court.

In a separate sentencing case, Catholic University law professor Peter “Bo” Rutledge, a former Clarence Thomas clerk, will also be appearing as “amicus curiae in support of the judgment below,” as the Court phrases it. This will also be Rutledge’s first time before the Court.

Says Jorgensen: “I’ve been talking to Bo. We’re both honored and both scared.”