Federal Defenders Combine Forces to Argue at US Supreme Court

Andrew Adler will make his third trip to the US Supreme Court lectern on Monday as one of a handful of federal public defenders to argue more than once.

Federal defenders from across the nation have argued at least one case every term except for one since at least 2000, according to Adler. Most often, it’s their first and only time in front of the justices.

With the Supreme Court hearing fewer and fewer cases each term, the criminal defense attorneys—like most first-time advocates—face intense pressure from elite law firms to turn over their Supreme Court cases to experienced advocates.

In response to that pressure, and to criticism from the justices, federal defenders have developed support systems to help prepare for a successful argument—both of which Adler took advantage of again this time around.

The Defender Supreme Court Resource & Assistance Panel, for example, partners first time advocates with federal defenders with high court experience.

The goal is to provide resources to offices that want to argue their cases themselves, according to Fran Pratt, an assistant federal public defender in the Eastern District of Virginia who co-chairs the group.

“I think the work product and advocacy has improved immeasurably, the best of both worlds,” said Michael Caruso, the federal public defender for the Southern District of Florida, which is based in Miami.

Stinging Criticism

The group that brings together defenders from across the country started informally, according to Pratt. Sometimes the informal exchange worked out well. Other times it didn’t.

But the defender community as a whole was “stung” by criticism from the justices, said Caruso, who leads Adler’s office and is listed as co-counsel on the briefs in the upcoming case, Jackson v. United States, which is about sentencing for federal firearm and drug offenses.

Justices have lamented the quality of representation criminal defendants often receive before them, blaming attorneys who refuse to hand over their cases to seasoned Supreme Court advocates.

Justice Sonia Sotomayor said in 2014 it was “malpractice for any lawyer who thinks this is my one shot before the Supreme Court and I have to take it.”

The Supreme Court bar is dominated by a small group of big firm lawyers who specialize in arguing before the justices and other appellate courts.

Brandon Beck, a former assistant federal defender in the Dallas-based Northern District of Texas who argued at the Supreme Court in 2019, said there’s a degree of elitism in thinking that only big firm lawyers are capable of doing Supreme Court work.

There’s often an overconfidence that a generalist lawyer can just “get up to speed” on the law if they work hard enough, said Beck, who is now a law professor at Texas Tech University.

But federal defenders are the subject matter experts and are often going to know the case and its implications better than a Supreme Court specialist, Beck said. And most, he added, have extensive experience arguing in the federal appellate courts and filing petitions for review at the high court.

Adler, for example, has signed on to dozens of Supreme Court briefs starting in 2015, and second-chaired two cases before taking the lectern himself.

The Pitch

As a result of the pressure and criticism, “we’ve worked hard to put our defenders in the best position to succeed,” Caruso said.

The pitch from DSCRAP “has always been that if an office would like to keep the case, we will provide them with resources,” said Pratt, who is based in Alexandria, Virginia.

In addition to setting up moot courts and providing strategic planning, the group can help with the “nuts and bolts” of Supreme Court practice. This can include figuring out the briefing schedule and how to send an appendix to the printer, Pratt said. More significantly, DSCRAP often assists with editing, researching, and drafting briefs, she added.

What offices and individual attorneys are interested in will vary, Pratt said. That’s because some offices have substantial experience litigating Supreme Court cases or have partnered with experienced Supreme Court litigators.

They have less need for assistance, she said.

Experienced Attorneys

In Jackson, DSCRAP worked with Adler to brainstorm argument strategy and questions. And the program planned a moot for him closer to the actual argument date, Pratt said.

And while she said DSCRAP wasn’t involved in the preparation of the briefs in this case, Adler worked with Supreme Court veteran Jeff Fisher to prepare them.

Fisher, who co-directs Stanford’s Supreme Court Litigation Clinic, says the program doesn’t insist on arguing cases and will assist “if we feel like we can help play a valuable role in the briefing and meaningful support in argument prep.” Still, of the 12 cases in which the clinic has partnered with federal defenders, its attorneys—usually Fisher—have argued 10.

The partnership with outside attorneys is part of a separate policy Caruso has instituted for his office—namely, an attorney must partner with an experienced Supreme Court advocate at the briefing stage and to prepare for argument.

“Working with high court veterans can give attorneys insight into particular justices, particularly those who aren’t inclined to side with us,” Caruso said.

David and Goliath

The partnerships can help equalize what often seems like a David and Goliath scenario.

J. Matthew Wright, an assistant federal public defender in the Northern District of Texas, made his Supreme Court debut this term in a gun ban case. He was pitted against the Biden administration’s top lawyer at the high court, US Solicitor General Elizabeth Prelogar.

Prelogar, widely considered one of the best high court advocates, has argued two dozen cases. Those include blockbusters like abortion and affirmative action.

Federal defenders almost always face attorneys from the Solicitor General’s Office, those responsible for handling the government’s cases at the Supreme Court.

Adler will appear opposite Austin Raynor, an assistant to the solicitor general who has argued six cases since joining that office in 2019.

O’Melveny partner Michael Dreeben spent more than 30 years in the SG’s office arguing some of the government’s most important criminal cases as the longtime deputy in charge of that docket.

Dreeben said it’s true that repeat players have a sort of home court advantage because they know what the justices are looking for.

But, he said federal defenders are “a group of people that have a pretty good support system.”