Supreme Court Advocates Share Expertise

BY SARAH MARCUS

Supreme Court Advocates Panel

You know that dream where you are taking an exam for a class you haven’t taken? David Moran, Dean and Professor of Law at Wayne State University Law School and appellate litigator, has lived it – before the Supreme Court. During oral arguments in Kowalski v. Tesmer (a case about an indigent criminal defendant’s right to an appointed attorney on appeal after a guilty plea) in 2004, the Justices asked repeatedly about another case Dean Moran had never heard of. It turned out the Court had just granted certiorari in a nearly identical case which he had no way of knowing about. He later took on that case- Halbert v. Michigan-argued before the Court again, and won.

This anecdote was one of many to entertain, inform, and perhaps frighten the audience at the Progressive Supreme Court Advocates Panel that took place on campus on Monday, February 27. The American Constitution Society, Harvard Law Students for Choice, and ACLU-HLS co-sponsored the event, bringing four panelists to discuss their recent Supreme Court cases, as well as their strategies for advancing progressive issues with litigation, particularly before a conservative court. Professor Carol Steiker moderated.

The panelists shared advice about how to bring a case to the Supreme Court, suggesting various routes: work for an organization like the ACLU that frequently has cases there; watch for particularly interesting, and perhaps troubling, cases in your state Supreme Court; get appellate experience in a defender’s or prosecutor’s office; and volunteer to write cert petitions for overloaded attorneys.

Panelist Jennifer Dalven is the Deputy Director of the ACLU Reproductive Freedom Project. She argued Ayotte v. Planned Parenthood, a challenge to a New Hampshire law restricting teenagers’ access to abortion, which raised questions regarding the legal standard by which courts consider abortion restrictions and whether laws regulating abortion must protect women’s health.

David Moran was an Assistant Defender with the State Appellate Defender Office in Detroit before joining the Wayne State faculty. He has argued four cases before the United States Supreme Court since joining the faculty, most recently Hudson v. Michigan. The issue in that case was whether the exclusionary rule requires the suppression of evidence found by the police inside a home immediately following a violation of the Fourth Amendment knock and announce requirement.

Harvey Schwartz, of Rodgers, Powers & Schwartz, LLP, explained that he uses the money he wins in employment discrimination cases to represent clients in civil rights cases pro bono. In 1997, he argued Daniel Bogan and Marilyn Roderick v. Janet Scott-Harris, a First Amendment case in which the Supreme Court, for the first time, discussed standards for personal liability for members of local governing boards in civil rights cases.

Brian Wolfman is the Director of Public Citizen Litigation Group, a public interest law firm in Washington, D.C. that is home to the Supreme Court Assistance Project, which helps attorneys fight cert petitions in cases they don’t want reviewed as well as prepare and litigate cases the Court decides to hear. His most recent case before the Court was in 2005, when he argued Lockhart v. United States, which concerned whether the federal government can withhold social security benefits to collect outstanding student loan debt.

The audience learned about the upcoming issues in the areas of expertise of each speaker: reproductive rights, criminal defense, civil rights in a time of terrorism hysteria, and access to the courts. Despite the variety of areas of focus and experiences of each attorney, they could all agree on one point: no matter what happens in oral argument, you can never tell what the Justices are going to do.