U.S. Solicitor General’s Office at Main Justice. Credit: Mike Scarcella/ ALM

If doing something twice in a row makes a trend, then the court launched a significant one on Monday afternoon.

The court announced that Deepak Gupta of Washington’s Gupta Wessler was “invited to brief and argue” as amicus curiae “in support of the judgment below” in a Social Security case from Kentucky captioned Smith v. Berryhill.

Translated, that means that Gupta will argue a position in the case that the U.S. Justice Department—representing Social Security official Nancy Berryhill—no longer embraces. The U.S. Court of Appeals for the Sixth Circuit in January ruled against the Social Security claimant, who had sought additional income resulting from disability.

At the cert stage, U.S. Solicitor General Noel Francisco told the court that it now agreed with Social Security claimant Ricky Smith on how the agency’s Appeals Council reviews appeals from administrative decisions on disability benefits.

“The court may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals,” which the government no longer embraces, Francisco wrote.

When the court is presented with a case in which both sides agree that the lower court decision is wrong, it appoints a lawyer to make the case that the ruling was right, so that both sides can be aired fully.

By long tradition, the coveted invitation to argue in such a case has been bestowed mainly on justices’ former law clerks, and has helped launch their appellate careers.

In a 2016 Cornell Law Review article on the court’s amicus invitations, Benjamin N. Cardozo School of Law professor Kate Shaw said the practice smacks of “the cronyism and patronage that characterized government employment” over a century ago before civil service reforms were enacted.

Deepak Gupta. Courtesy photo.

Gupta is not a former Supreme Court law clerk. And neither is Amy Weil, an Atlanta solo practitioner who was invited in June to argue under similar circumstances—a Social Security case titled Culbertson v. Berryhill. The case, arising from the Eleventh Circuit, will be argued Wednesday at the high court.

There’s one twist in the Gupta appointment. Gupta’s legal career has been mainly consumer- and plaintiff-oriented, but in the Smith case, he will be arguing at odds with a Social Security claimant. Gupta was out of pocket and did not respond to a question on that point, but his Gupta Wessler partner Jon Taylor tweeted Monday afternoon, “I know he’s honored. We’ll do our very best to discharge our obligations to the court.”

 

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