As we reported here last year, one of the little-known paths a lawyer can take to achieving the goal of arguing before the Supreme Court comes when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal. When that happens, half the case falls away, so to speak. The Supreme Court, if it still wants an airing of the issue at stake, then appoints a lawyer — almost always a former law clerk to a justice — to advance the now-orphaned argument.
It happens rarely, once every year or so, and it happened again Thursday. The Court issued an order Thursday appointing Amanda Leiter, a professor at Catholic University’s Columbus School of Law and former clerk to Justice John Paul Stevens, to argue in favor of the decision below in an immigration case, Kucana v. Holder. Ordinarily, since the U.S. government is the respondent, the solicitor general’s office would be making that argument. But Solicitor General Elena Kagan in her brief in the case agreed with petitioner Agron Kucana, an Albanian facing deportation, that the 7th U.S. Circuit Court of Appeals was wrong. With no one supporting the 7th Circuit, the Court appointed Leiter.
