Elizabeth Wydra likes to say the Constitution is her portfolio. For Wydra and her litigation team at the Constitutional Accountability Center, the U.S. Supreme Court has fattened that portfolio considerably in the current term.
The center has filed amicus briefs in six cases this term, involving such issues as affirmative action, voting rights, same-sex marriage and property rights. And it recently filed an amicus brief in what is likely to be next term’s big recess appointments clause challenge—National Labor Relations Board v. Noel Canning.
The center, now five years old, says its mission is to promote "our conviction that the Constitution is, in its most vital respects, a progressive document, written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals our nation’s history—the Reconstruction Republicans after the Civil War, the Progressives and the Suffragettes in the early 20th Century, the Civil Rights and student movements in the 1950s and 1960s. Through Constitutional Progressives, a coalition of leaders, organizations and individuals, we seek to wrest the Constitution from tea partiers’ control and restore our Nation’s Charter as a document that unifies and inspires all Americans, rather than divides us across ideological lines."
Wydra, chief counsel, joined the center on the day before its official launch on June 3, 2008. A Yale Law School graduate, she left private practice at what was then Quinn Emanuel Urquhart Oliver & Hedges in San Francisco to take the job. While at Quinn Emanuel, she worked with Kathleen Sullivan in the firm’s Supreme Court and appellate practice.
"I really got the bug for appellate litigation when I was a teaching fellow at Georgetown University law school’s appellate litigation clinic," she recalled. "When I was deciding what to do afterward, I had the opportunity to work with Kathleen Sullivan. She was just starting her appellate practice [at Quinn Emanuel]. We had breakfast in D.C. Kathleen, as she is in court, is very persuasive. I jumped at the chance to be a part of her new practice group. Steve Goldblatt, the director of the clinic, gave me very good advice. He said, ‘Try to find someone who will help take you from being a very good lawyer to an excellent lawyer.’ There was no better mentor at that point—Kathleen is a brilliant lawyer and a phenomenal brief writer."
Wydra enjoyed the work at Quinn Emanuel, but when she saw the job opening at the center, "I thought there could not be a more perfect job for me. In fact, the day the listing came out, I had about a dozen people forward it to me, saying, ‘Did they write this specifically for you?’ "
A self-described "con law nerd," she said she has always been interested in the Constitution’s history and using it for progressive ends. "In law school, I took several classes from Akhil Amar and just loved his work and thought it would be something I would love to put into action."
Wydra oversees an eight-lawyer litigation team and, as that team has grown, so too has the number of briefs filed in the Supreme Court.
"We have primarily filed briefs in merits cases, but in the last couple of years we’ve expanded that to include more briefs filed at the cert stage. And in several important cases, such as health care and voting rights, we filed in the lower courts."
In choosing cases in which to file, the center evaluates whether there is a place for a text-and-history-based argument, she explained. "We look to see if we can illuminate the question for the Court. We feel in cases this term on marriage equality, voting rights and affirmative action, our brief on the meaning of what equality is in the Constitution is really important to those cases."
Since its launch, the center has filed more than 40 briefs on behalf of clients such as the League of Women Voters, the National League of Cities, the American Judicature Society, Justice at Stake, the National Association of Counties, and constitutional law scholars. It also has found common ground with usual opponents, joining with the Cato Institute in supporting same-sex marriage, for example.
"Previously our involvement was limited to how many briefs I could write," said Wydra. "Now that I have excellent colleagues who also can draft briefs, we’ve been able to expand into cert stage briefs as we did in the Noel Canning case. Right now, most of the groups very active in filing briefs at that stage are more conservative, like the Chamber of Commerce and the Pacific Legal Foundation. We would definitely like to expand in the lower courts, getting in earlier to shape the way constitutional issues are litigated. That’s also reflective of the fact that most cases don’t get to the Supreme Court."
In her prior job, Wydra argued about half a dozen cases in the U.S. Court of Appeals for the D.C. Circuit, the Fourth Circuit and the Ninth Circuit. But since joining the center, her arguments have been made in briefs and in the court of public opinion. She is frequently a guest on news shows, offering Supreme Court analysis.
The public appearances, she said, are "fun and important," but she does miss the give and take of oral arguments in court.
"That’s probably the only thing that keeps this from being my absolute dream job—not being in court," she said. "I really did enjoy it. I never argued in the Supreme Court, although I’d certainly love to. They’re always talking about not enough women advocates before the Supreme Court, and I’m ready, whenever they need me."
Contact Marcia Coyle at firstname.lastname@example.org.