How Big Law Teamed Up to Clinch Supreme Court Dreamer Victory

July 3, 2020, 1:00 PM

Winning a case doesn’t usually make veteran Covington & Burling litigator Jeffrey Davidson start to cry — or dance.

Davidson did both after clicking on the Supreme Court’s website and learning he helped convince the justices to protect young undocumented immigrants known as Dreamers from deportation. Davidson’s 9-year-old son commented on his unusual reaction, prompting him to explain, “We won the case about the young immigrants,” before he ran upstairs to tell his wife.

Lawyers across the U.S. from Gibson, Dunn & Crutcher, Jenner & Block, and Covington & Burling worked on the case for years, culminating in the 5-4 decision that Davidson said ensures nearly “700,000 people get to continue their lives without worrying about being thrown out of their jobs or arrested and deported.”

The case had “human consequences that make it different from any case I have worked on,” Davidson said.

Early Beginnings

The three firms came to the litigation from different directions, shortly after the Department of Homeland Security announced plans to end the Obama-era Deferred Action for Childhood Arrivals program in 2017.

Covington represented the University of California and its president while Gibson filed suit on behalf of six individual DACA recipients. Both of the firms worked pro bono.

Jenner represented Princeton University and one of its students, as well as Microsoft Corp. These were the only private universities and companies to file suit, and Jenner didn’t represent them pro bono.

Covington joined forces with Gibson on the West Coast early on, while Jenner filed its own lawsuit in Washington, D.C.

The firms made sure to also collaborate with the Dreamer community, which was “involved at every step of the way,” Jenner Partner Lindsay Harrison said. “We all worked so hard to try to listen and make sure that we were incorporating their wishes into our legal strategy and our argument,” she added.

The matter was personal for some members of the legal team, which also included lawyers from state attorneys general offices, small firms, the public interest law firm Public Counsel, and immigrant rights organizations.

Luis Cortes Romero, managing partner at the Washington-based Immigrant Advocacy & Litigation Center, is himself a DACA recipient. The designation provides temporary protection from deportation and permission to work legally.

Because of his legal status, Cortes Romero never imagined himself going to law school, let alone having a seat at the table when the case was argued in front of the Supreme Court. He learned the consequences of not having citizenship in small ways growing up, such as not being able to go on a class trip to Europe or get a driver’s license.

Collaboration between firms and advocates began at the district court level. Cortes Romero met Ethan Dettmer, a partner at Gibson, during a whirlwind weekend focused on getting DACA holder Daniel Ramirez Medina out of a detention facility in 2017.

Dettmer assembled a team of Gibson associates and law professors to talk strategy on Ramirez Medina’s case, while rumors circulated about a potential DACA rescission in summer 2017.

Highest Court

Many DACA legal team members saw the case challenging the Trump administration’s effort to end the program as a potential candidate for Supreme Court consideration from the beginning.

The need “for coordination and cooperation got even more intense,” once the case reached the Supreme Court, Dettmer said.

Cross-firm collaboration is not unusual, especially for cases heard by the Supreme Court. But the collaboration on this case was on a “different scale,” in terms of meetings, phone calls, and coordination, Dettmer said.

The DACA team brought together experts in many fields, spanning immigration law, constitutional law, administrative law, as well as activists, government lawyers and lawyers in smaller firms, Dettmer said.

The firms debated the best way to present their arguments, how many amicus briefs to file, and, most importantly, who would present the argument to the justices.

Ultimately, “everybody had exactly the same goal. Everybody understood that we had to hang together if we were going to be successful,” said Covington Partner Robert Long.

They ultimately landing on Theodore Olson, the seasoned Gibson partner who held high level positions in two Republican administrations, including solicitor general under George W. Bush.

Cortes Romero thought the seat next to Olson would go to a Covington lawyer. But Covington gave up the seat so that Cortes Romero could act as co-counsel. “I was so surprised,” Cortes Romero said. “It was the opportunity of a lifetime for any lawyer.”

Decision Day

While the decision was pending, Cortes Romero said he was constantly worried “about whether the end of DACA means my clients get deported, and me with them.”

“I didn’t realize how heavy that weight was until it was off me,” Cortes Romero added.

After the decision came down on June 18, Cortes Romero got so many phone calls that his phone shut off, and he couldn’t talk to his own mother about the news until later that day.

He credits the win to the firms’ investment in the DACA team. Covington and Jenner “never told me a number,” Cortes Romero said, but guesses they invested millions of dollars in the case. They also put their “best people” on the case, for which Cortes Romero said he is “so grateful.”

It was well worth the investment of time and energy, say the Big Law attorneys who worked on the case.

“Over the last three years, we have met so many DACA participants, and to think that as a result of this work they have a continued chance to make their lives as Americans, that is something special,” Davidson said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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