In 2007, Mary T. Rogers, a Massachusetts sole practitioner, received a call from Stanford Law School Professor Jeffrey L. Fisher. Rogers had recently lost a case in which she argued that her client had a right under the Sixth Amendment to cross-examine at trial the lab technician in his drug case.
The Massachusetts Appeals Court ruled on the relevant issue in a footnote at the bottom of a three-page unpublished decision. Rogers planned to seek further review in the Massachusetts Supreme Judicial Court but did not expect to prevail. Instead, she took solace in the fact that she had preserved her client’s argument in case the law ever changed.
During their call, Fisher said he believed her case could change the law – and that he and students in the Stanford Supreme Court Litigation Clinic could help.
He was right. In June 2009, the U.S. Supreme Court issued its decision in Melendez-Diaz v. Massachusetts, ruling 5-4 that a forensic analyst’s lab report is a “testimonial” statement covered by the Sixth Amendment’s Confrontation Clause. The case, which Fisher argued, may have been Rogers’ first before the High Court, but by then Fisher and the clinic were well on their way to becoming one of this century’s most successful advocates for petitioners seeking to have their cases heard before the Court. On average, petitions for certiorari are granted 1 percent of the time; the last time Fisher ran the numbers, the clinic’s rate was over 30 percent.
The clinic, which is celebrating its 20th anniversary, was started in 2004 by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, along with SLS lecturer in law from 2004 to 2012 and now-retired Supreme Court litigator Tom Goldstein, and a handful of students in a library conference room they nicknamed the “Weenie Bin.” The participants built on a model Goldstein developed to identify cases and issues likely to find traction with the nation’s top jurists. In its first year, the team filed four cert petitions; all were granted.
What’s the likelihood that a law firm made up of two or three lawyers plus a dozen students could be one of the leading Supreme Court litigation firms in the country? Before we did it, nobody thought it could be done.”Pamela KarlanLaw Professor and Co-Director of the Stanford Supreme Court Litigation Clinic
“We haven’t had a 100 percent success rate since,” laughs Karlan, who today co-directs the clinic with Fisher and Easha Anand. Still, Karlan adds, “What’s the likelihood that a law firm made up of two or three lawyers plus a dozen students could be one of the leading Supreme Court litigation firms in the country? Before we did it, nobody thought it could be done.”
Since then, the clinic, the first of its kind in the country, has won landmark rulings in favor of gay rights, criminal defendants, and students with disabilities, among numerous other victories, and it has also been particularly effective at preserving wins in lower courts by keeping cases off the Supreme Court’s docket.
When Karlan and Goldstein – who met when Karlan spoke at a symposium on voting rights he organized as a law student – started the clinic two decades ago, they had no idea what to expect.
“It’s not as if we spent a huge amount of time plotting this out,” Karlan says. “It was like, ‘Tommy has this idea, I have these students, let’s try it out.’”
The model was so unique the instructors weren’t even sure how to handle acknowledging the students on their filings with the Court: They listed their names in a footnote until the Supreme Court clerk’s office sent them, as Mike Abate, JD ’05, describes it, a “polite but firm” note asking them to stop doing so since the students were not yet attorneys.
Real-time, real-world training
Some students sign up for the clinic because they know they want to be appellate attorneys; others are exploring their options and jump at the opportunity to get firsthand experience at the U.S. Supreme Court while learning from some of the finest attorneys in the country.
Masha Hansford, JD ’11, knew she wanted to participate when she was assigned one of the clinic’s briefs in her legal research and writing class as a first-year student. The brief was “the most beautiful thing I had ever read in my life,” she remembers. “Every sentence was perfect. It was stunning.”
Writing is a hallmark of the clinic experience and one that Karlan—and Fisher, when he joined as co-instructor in 2006 – emphasized from the start. Students work on cases in small groups throughout the quarter, drafting cert petitions and oppositions and merits, reply, and amicus briefs as needed.
The teams meet with an instructor frequently as the students brainstorm, outline, and workshop their case. When the team has a draft, an instructor meets with the students to go over the work line by line, editing the document in real time on a big screen for all to see.
“It was a hands-on teaching moment,” says Abate, who was a student in the clinic’s pilot phase. “It was such an eye-opening and enlightening experience.”
Rachel P. Kovner, JD ’06, who worked on a Fair Labor Standards Act case as a student and is now a federal judge, agrees.
“That was the fun thing about working in the clinic,” she says. “You worked on arguments that would actually wind up in the briefs but in a totally improved way. I can’t think of any other class where you got such a granular tutorial in writing.”
Rylee Sommers-Flanagan, JD ’16, worked on Endrew F. v. Douglas County School District, a case that resulted in a ruling that the Individuals with Disabilities Education Act imposes a “markedly more demanding” duty on school districts than courts had been requiring. She says the clinic’s collaborative writing process was both ego-filled and “ego-less.”
“You cared a lot about what you were putting into it,” she says, “but you cared more about the product being excellent at the end.”
Results-oriented
The clinic has handled more than 300 cases, representing parties on the merits in about one-third of those matters. Of the cases that have been decided, the clinic has won 55 and lost 41.
The numbers are even more striking considering that the clinic is usually on the side of the underdog and facing off against the federal government, a state, or a well-funded private business, each of which is typically represented by top appellate counsel.
Many of the clinic’s co-counsel are sole practitioners – like Rogers in Melendez-Diaz – or self-represented litigants without the means or expertise necessary to pursue a claim all the way to the highest court in the land. A call from the Stanford Supreme Court Litigation Clinic, therefore, is usually a pleasant surprise. It signals, as Fisher puts it, that “the cavalry has come in.”
“We try to come in on the less-resourced side of the v. and provide our resources to try to level the playing field – not just for those individuals but for everyone in their position,” Anand, an assistant professor of law, says.
Occasionally, those resources require a few adjustments.
In his first semester in the clinic (before Stanford switched to the quarter system), Abate worked on the merits brief for Smith v. City of Jackson, Mississippi, representing Mississippi police officers who claimed they were being discriminated against because of their age. One day, while toiling away on the case, he spilled coffee on his laptop, shorting the circuits. Goldstein overnighted him another computer so he could finish the draft. Although the clients’ claims were ultimately unsuccessful, the clinic won an important ruling that the Age Discrimination in Employment Act covers unintentional, or disparate impact, claims.
The next year, an attorney who was scheduled to argue a clinic case the week after Thanksgiving decided that a clinic instructor should handle the argument instead. Abate and others spent the holiday weekend preparing Karlan to step in. When the decision came down a few months later, the clinic prevailed 9-0.
Among its high-profile civil liberties cases, the clinic was co-counsel on U.S. v. Windsor, in which the justices held that the Defense of Marriage Act barring the federal government from recognizing same-sex marriages violated the Fifth Amendment’s Due Process clause; Obergefell v. Hodges, which held that states are required to license and recognize marriages between same-sex couples; and Bostock v. Clayton County, holding that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation or transgender status.
In addition to Melendez-Diaz, the clinic’s significant victories in criminal procedure include Riley v. California, which held that the Fourth Amendment prohibits searches of smartphones without a warrant, and Ramos v. Louisiana, in which the justices held that the Sixth and Fourteenth Amendments prohibit criminal convictions by non-unanimous verdicts.
Melendez-Diaz was just one in a line of cases involving the Confrontation Clause that Fisher has handled over the years – he is the leading authority in that area of the law. His first such case, Crawford v. Washington, which came before he arrived at Stanford, held that introducing an eyewitness’ “testimonial” statements against a criminal defendant without putting the witness on the stand violates the Sixth Amendment. Melendez-Diaz extended that holding to forensic lab reports.
The latter decision “basically stands for the proposition that the prosecution in a criminal case cannot introduce a forensic report without giving the defendant the opportunity to cross-examine the forensic examiner,” Fisher explains. “That’s a critical right because forensic evidence is very persuasive to juries – sometimes called the ‘CSI effect,’ after the TV show.”
Yet such evidence is sometimes faulty or outright fabricated.
Rogers, who recalls that Fisher’s phone call in 2007 came “out of the blue,” says the ruling “had a huge impact on cases all over the country.”
In 2011, Hansford worked with Fisher on another Confrontation Clause case, Bullcoming v. New Mexico, which applied the Melendez-Diaz holding to blood alcohol tests. She says working with Fisher and watching him argue the case before the U.S. Supreme Court was an incredible experience.
“Seeing those answers come to life was really wonderful,” she says.
The clinic has also played defense, helping clients keep their cases out of the Court and preserving a lower court’s ruling. That’s something the team has done more of as the Court has grown increasingly conservative on civil rights matters.
In a 2020 case called J.K.J. v. Polk County, the clinic worked on the opposition brief at the certiorari stage on behalf of two women who had won jury verdicts against a county for repeated sexual assaults against them by a correctional officer. The Court declined to take the case, and the verdicts in the women’s favor were left standing.
“A lot of firms aren’t as interested in representing respondents at the cert stage because, if you’re successful, you don’t get an argument,” Karlan says. “But some of my proudest moments in the clinic are when we’ve kept the Supreme Court from taking the case. If the Court takes the case, there’s always a risk you’ll lose the victory you’ve already achieved.”
Leveling the playing field
The Stanford Supreme Court Litigation Clinic has been involved in high-profile cases on behalf of less-resourced clients since its inception more than two decades ago. Here are just a few of the other merits cases the clinic has handled over the years.
Brackeen v. Haaland (2023): The clinic successfully represented the Navajo Nation in a case in which the Court rejected constitutional challenges to the Indian Child Welfare Act’s requirement that states make every effort to place Native children who have been removed from their homes with members of their family, tribe, or another Native nation.
Peña Rodríguez v. Colorado (2017): The clinic won a ruling that the Sixth Amendment requires courts to consider post-verdict testimony from jurors when such testimony is offered to prove racial bias expressed during deliberations deprived the defendant of the right to an impartial jury.
Samantar v. Yousef (2010): The clinic represented Somali torture victims who sued a former Somali governmental official, persuading the Court that the defendant was not entitled to immunity from suit.
Ledbetter v. Goodyear Tire & Rubber Company (2007): The Court ruled 5-4 against the clinic’s position on behalf of Lilly Ledbetter, who argued that her employer violated the federal ban against sex discrimination in employment each time it paid her less than co-workers who identify as male. But the case led to the Lilly Ledbetter Fair Pay Act signed into law by President Barack Obama, which enshrined the clinic’s view into law.
Career connections
Clinic students have gone on to great success in appellate litigation and other areas of the law. They have served in the U.S. Solicitor General’s Office, as top appellate attorneys for states, and as leading counsel at major law firms and a wide range of nonprofit organizations. Others have gone into academia, taken positions in corporations or the government, or hung up their own shingle, as Abate and Sommers-Flanagan have.
And former students often run into one another. Kovner remembers watching Eric Feigin, JD ’05, moot a bankruptcy case when they were in the clinic, wondering, “How is it that a law student is ready to stand up and argue a case in the U.S. Supreme Court?” They both went on to work at the Office of the Solicitor General (Feigin is still there, now as a deputy solicitor general; Kovner was appointed as a judge in the Eastern District of New York in 2019).
When Scott Stewart, JD ’08, Mississippi’s solicitor general, successfully argued the case that overturned Roe v. Wade, Erica Ross, JD ’09, an assistant to the U.S. solicitor general currently on detail to the U.S. Department of Justice’s Office of Legal Counsel, was one of the attorneys for the United States on the other side.
Hansford, also an assistant to the U.S. solicitor general, and Karlan once argued opposing sides in separate but related cases heard by the Court on the same day.
“It was fun to hang out in the lawyers’ lounge together,” Hansford recalls. “Not as equals – no one could ever be equal to Pam. But, on that day, I had the same job.”
Sometimes, clinic instructors even argue against former students, with mixed results.
“It is especially gratifying, at least on one level, to argue against former students and have them beat us,” Fisher says. “But hopefully,” he adds wryly, “we won’t have that happen too often.”
Supreme Court Litigation Clinic Co-Directors Jeffrey L. Fisher, Easha Anand, and Pamela S. Karlan | Christine Baker
Lasting legacy
Twenty years later, the clinic is busier than ever and its efforts continue to have a lasting impact – on students, on clients, and on the law in this country. Working with the instructors, full-time students and advanced students (who are taking the clinic for a second or third time, in addition to other classes) file about half a dozen petitions for certiorari each year, in addition to briefs in opposition and merits-stage briefs.
Recent cert petitions include Zuñiga-Ayala v. Garland, on the question of when the Immigration and Nationality Act allows the government to remove a noncitizen for violating state law, and Gross v. United States, which deals with whether and under what circumstances a criminal defendant who has been released to a halfway house is in “custody” and therefore can commit the crime of escape, which is punishable by five years in prison.
Anand had never argued a case before the U.S. Supreme Court when she joined the clinic, initially as a visiting professor, in 2022. Since then, she has argued four. Her first case was Murray v. UBS Securities LLC, in which the clinic successfully represented a former financial analyst who claimed he was fired in violation of the whistleblower protections of the Sarbanes-Oxley Act.
Most recently, she argued Medical Marijuana v. Horn on behalf of a man who was fired after unknowingly ingesting THC from a wellness product and is seeking treble damages under the Racketeer Influenced and Corrupt Organizations Act.
Leo Rassieur, JD ’25, an advanced student in the clinic, helped Anand prepare for argument in that case, including by researching ways to defend the clinic’s interpretation of the word “damages” in the relevant statute. He also got to attend the argument at the Supreme Court in October (it was his first time in any court).
“I feel like I’m walking away from the clinic with a set of incredibly valuable skills,” he says. “In particular, the public interest mission of the clinic has taught me a great deal. For every case the clinic takes, we have conversations about how the case will affect others dealing with the same issue in other parts of the country and how courts will think about the problem if we win or lose. Those are questions that are really difficult to answer.”
Clinic alumni say they continue to draw on lessons they learned in the Weenie Bin and its more suitable successor, the Mills Legal Clinic space in the Neukom Building.
Ross says she learned from Karlan to be herself when she’s at the podium.
“You can’t be someone you’re not,” Ross says. “You try to be a very well-prepared, respectful, and concise version of yourself.”
Grace Zhou, JD ’17, an assistant solicitor general in New York, says the clinic taught her that “appellate litigation can be used as an advocacy tool for positive social change.”
“I learned how persuasive and creative legal writing can be and how much of a difference that can make,” she says.
Stewart adds that he can remember sitting behind Fisher’s desk watching him edit a reply brief, cutting a sentence from “19 words down to 13.”
“You could see how he did it – it wasn’t an abstraction,” he says. “I came to appreciate that people get really good at these things not accidentally. They hold themselves to a very high standard and try to get every sentence just so.”
Abate, who went on to handle national security and state secrets litigation for the U.S. Department of Justice before entering private practice, still marvels at the fact that “I worked on a dozen U.S. Supreme Court briefs before I graduated from law school.”
“That’s pretty surreal,” he says.
Kovner agrees.
“Most lawyers go their whole careers without working on a merits case at the U.S. Supreme Court,” she says. “The clinic gets them every term.”
For more information
This story was originally published by Stanford Law School.