At high court, a good use of homework: convincing justices

WASHINGTON, D.C. — The Supreme Court chamber is small, but it makes its occupants feel even smaller. Thick marble columns stretch toward the soaring ceiling, adorned with sculpted flowers and Classical friezes depicting figures such as Moses, Aristotle and Caesar.

As police and U.S. Marshals screened visitors, directed them to their seats and prowled the chamber, more than a dozen Yale Law students sat on padded dark-wood pews and waited for the nine justices to emerge from behind the gold-tasseled scarlet curtains.

When the clock suspended above the chief justice’s chair struck 10, everyone stood as the clerk introduced John Roberts. Smiling broadly, he appeared and took his seat in the middle, followed by the associate justices — including two who shared the students’ alma mater, if not always their ideologies.

***

For over six months, 16 Yale Law School students have tirelessly discussed and debated a case involving mandatory sentencing for repeat-offenders. For just over 60 minutes here Tuesday, it was the U.S. Supreme Court’s turn.

The Yale Supreme Court Clinic, a joint venture between the Law School and Mayer Brown LLP that puts Law students to work on real clients’ cases with faculty supervision and professional partners, represented Gino Gonzaga Rodriquez in United States v. Rodriquez. The case hinges on a narrow technicality in the interface between federal and state criminal codes. But to Rodriquez — and hundreds of other defendants — that technicality could make the difference between five and 15 years in prison.

For the students involved, the experience ranked among their highlights of law school. While they said they may not see another opportunity to work at the Supreme Court level for some years, they hope to one day return to the Court’s imposing chamber.

“It’s worrying on a serious level that I feel like we’re getting spoiled,” Michael Kimberly LAW ’08 explained Tuesday. “We’re all going to go from working on Supreme Court cases to helping federal judges write opinions [as clerks] to becoming big-law-firm fodder. The likelihood that I’ll be working on another Supreme Court case in the next decade is slim.”

Since last summer, Kimberly has worked closely with Madhu Chugh LAW ’08, Ethan Davis LAW ’08 and Paul Hughes LAW ’08 on Rodriquez’s case. In August, they petitioned the Supreme Court to deny the government’s appeal of the Ninth Circuit Court of Appeal’s ruling. But the Supreme Court took the case, so the students began preparing a respondent’s brief, with the guidance of faculty members Charles Rothfeld, Dan Kahan and Sarah Russell, and with the research assistance of Jonathan Donenberg LAW ’08, Fred Liu LAW ’08 and 10 second-year law students.

The Clinic has worked on more than a dozen cases since launching in 2006, and Rodriquez was its second to be argued before the Supreme Court.

***

The oral arguments began with the government’s counsel, Kannon Shanmugam. He faced tough questions from Justice Antonin Scalia, on Roberts’ right, and then from the chief justice.

“You seem to flinch from the natural consequences of your position,” Roberts challenged, peering from behind the reading glasses on the tip of his nose.

Shanmugam, wearing a tailcoat, responded stoically, always addressing each justice by name. Justice John Paul Stevens, on Roberts’ left, arose from his shut-eyed repose to whisper something to Justice Clarence Thomas LAW ’74 and shake his head.

Justices Ruth Bader Ginsburg, Anthony Kennedy, Stephen Breyer and David Souter joined Roberts and Scalia in posing hypothetical situations, trying to discern Shanmugam’s proposed interpretation of the Armed Career Criminal Act of 1984 by differentiating the case at hand from alternate possibilities. The penalty considered for ACCA purposes should be the maximum potential sentence, Shanmugam contended.

The case revolves around the application of the federal ACCA, which mandates a 15-year minimum sentence for possession of a firearm by a felon convicted of three prior drug offenses “for which a maximum term of imprisonment of 10 years or more is prescribed by law,” according to court documents.

When Rodriquez was found carrying a gun in Washington state in 2003, he already had three convictions on his record, the first two of which are not being challenged by the defense in the current trial. Instead, the third offense is the focus of the case.

The nature of Rodiguez’s third offense normally carries a maximum sentence of only five years. But Washington State law authorizes judges to increase the sentence of repeat offenders to 10 years, which the judge chose to do in Rodriquez’s trial. The question is whether Rodriquez’s third strike — which only met the 10-year maximum under this separate state law that applied to him as a repeat offender — counts toward triggering the mandatory sentence under the ACCA.

***

Though technical, the case was easy to get excited about, the students said, because of their passion for law paired with their commitment to their client.

“Yale Law School is a special place that draws people who just get excited about the law,” Kimberly said. “When you combine the high stakes of actually having a client with the intellectual challenge, it’s easy to get Yale Law students motivated about that.”

Working on a case with the Law students in an educational context had mixed implications, Rothfeld said. While he said the case benefited from the students’ eagerness, enthusiasm and willingness to invest “unlimited” time in research, the writing process also took longer. Instead of simply taking their work and rewriting it, as might occur at a law firm, Rothfeld said the faculty returned the drafts to the students with suggestions for revision.

After submitting the brief, Rothfeld exhaustively prepared for his 21st appearance before the court, trying to anticipate the justice’s questions.

“At the argument stage, the ball was in [Rothfeld]’s court,” Kimberly said.

***

After 27 minutes, Shanmugam asked to reserve the balance of his time and yielded the floor to Rothfeld, who began by saying the government’s interpretation could not reflect the ACCA’s intent. But Roberts said that a federal statute tailored to address the problem of repeat-offenders would logically take state laws targeting repeat-offenders into account.

“Suppose it was your own children,” Stevens posited. “You say, ‘I told you half an hour ago not to hit your sister.’ Isn’t the behavior worse the second time?”

“It’s a familiar situation, Your Honor,” Rothfeld quipped, drawing chuckles from the gallery.

“It’s not a more serious offense, just a more culpable offender,” Scalia suggested.

But Kennedy said a subsequent offense is more injurious than the first, since the state had already invested corrections resources in the convict only for him to relapse.

Breyer, in one of the hearing’s rare references to constitutional law, said the offense must be judged individually because holding the offender responsible for the current and past offenses could comprise double jeopardy.

“It’s incredible seeing a case you’ve worked on for so many months and spent hundreds of hours on be dissected by the nine justices,” Hughes said. “To hear the justices discussing the same problems you’ve been dealing with is humanizing.”

Rothfeld finished by saying that too much liberty — 10 years of the defendant’s life — was at stake for Congress’s intent to be unclear.

“He had the right answers on the tip of his tongue,” Hughes said. “It’s instructive for all of us and something we all aspire to reach at some point in our careers.”

When Rothfeld’s time expired, Shanmugam returned for three minutes.

Roberts then concluded. “The case,” he said, “is submitted.”

***

The oral arguments offered few clues to the justices’ inclinations, especially since some appeared equally hostile to both sides.

“One has a hard time predicting what the justices think about a case based on the questions they ask,” Hughes said. “It’s hard to know until the opinion is handed down.”

Arguing before a panel that has a reputation for sternness toward criminals and on an appeal from the most frequently overruled federal circuit, the Yale students faced an uphill fight.

“The consensus was that this was the Solicitor General’s case to lose,” Kimberly said.

But the students said the oral argument went as well as they could have hoped for.

“The justices seemed particularly troubled by some of the arguments made against the government’s position,” reflected Hughes. “We’re hopeful that they saw the flaws in the government’s posture.”

Rothfeld resisted making any prediction.

“It’s often the case that people think the argument went fantastic and you lose unanimously,” he said.

While the students said they can relax after having finished the casework, they said they will not have closure until the case is decided.

In the meantime, it is like the waiting game between turning in an exam and receiving the grade, Hughes said: “All you can do is guess and be hopeful.”

Comments

  • Anonymous

    Did anyone notice that the print version of this story had the word "sen10cing" slipped in? Thank you for that - I got such a kick out of it.

  • DocHollidaye

    Must have accidentally gotten into archives, this made for a good read, would like to see an updated version.