On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.
Alito's request: Would Jorgensen have time to argue a Supreme Court case in April -- a case Jorgensen had never heard of -- for free?
In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case. So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.
Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks. Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.
Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, 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.
"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.
These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons 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.
In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer -- almost always a former clerk -- to make the orphaned argument.
Why does the Court do this? As Justice Ruth Bader Ginsburg expressed it in a footnote in the 2003 case Clay v. United States, appointing a lawyer to defend the lower court judgment when no one else will "permits us to decide the case satisfied that the relevant issues have been fully aired."
In a sense, it is the truest form of amicus curiae or "friend-of-the-court" representation, because the appointed advocate has no client -- and does not get paid. But the intangible rewards for the lawyer are great, representing yet another way in which a Supreme Court clerkship can be a ticket to top-tier career opportunities.
Some appointed counsel have played major roles in landmark cases that have posed sticky political dilemmas for the executive branch.
Early in the Reagan administration, Justice Department officials decided they did not want to defend a lower court ruling that had upheld the IRS' rejection of tax-exempt status for schools and universities that discriminate on the basis of race. So the Court appointed famed civil rights attorney William Coleman Jr. -- also a former high court clerk -- to defend the decision in the 1983 case Bob Jones University v. United States. Coleman carried the day.
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, which he has since resigned to return to the university.
In Jorgensen's upcoming case, the issue is whether a federal appellate judge can, on his or her own accord, increase a defendant's criminal sentence when the government has not asked the judge to do so. The 8th U.S. Circuit Court of Appeals said the appellate judge does have that power, and defendant Michael Greenlaw appealed. But the government told the Court it disagrees with the 8th Circuit too -- prompting Alito's call to Jorgensen.
Rutledge's case asks whether a judge must notify both sides before rendering a sentence that deviates from federal sentencing guidelines. The 11th U.S. Circuit Court of Appeals said there is no such requirement, but the government agrees with the defendant that notice should be given. Rutledge will defend the 11th Circuit decision.
By custom, the job of finding a lawyer in these circumstances falls to the justice who handles emergency appeals and other matters from the circuit where the case originates.
Alito is the circuit justice for Minnesota, where Greenlaw's drug trafficking conviction took place. Jorgensen clerked for Alito on the 3rd U.S. Circuit Court of Appeals, then for the late Chief Justice William Rehnquist, and again for Alito in his first year on the high court. Jorgensen was also active in the campaign for Alito's confirmation. Rutledge's former boss Thomas is circuit justice for Alabama, where the Irizarry case originated.
THE ROBERTS TRACK
When Roberts, following up on Alito's invitation, called to tell Jorgensen the Court had approved his appointment, Roberts noted that he himself had snagged his first argument in similar fashion.
Roberts' debut at the Court podium came in United States v. Halper in 1989, a double jeopardy case in which the defendant had argued pro se in the lower courts. Nonlawyers don't argue before the high court, so Roberts, a former Rehnquist clerk then in private practice at Hogan & Hartson, was appointed to represent him. Roberts took it on pro bono -- and won.
Mahoney got a similar nod from Rehnquist in 1988, when he asked her to argue in Mackey v. Lanier Collection Agency, an employee benefit case. The respondent, a Georgia collection agency, decided its stake in the case was so small that it was not worth the cost of appearing to defend the lower court decision.
"The call came out of the blue," recalls Mahoney, who was at Latham at the time. "I felt that the way to be the Court's 'friend' was to defend the ruling as aggressively as I could."
Mahoney, a former Rehnquist clerk, said it makes sense that justices would seek out former clerks for these appointments. "We are people they know and have confidence in."
The appointment worked out well for Mahoney. She won the case, and not long after, she was named deputy solicitor general, a job she held until returning to Latham. Now she is often mentioned as a possible Supreme Court nominee.Mahoney says of her appointment, "It's a great way to get a start."