MacArthur Supreme Court Win Highlights Broader Strategy Success

A sweeping U.S. Supreme Court ruling for a civil-rights plaintiff marked the latest win for the MacArthur Justice Center, which has found success bringing cases in courts across the country.

The high court decision on Monday in Thompson v. Clark makes it easier to sue law enforcement for alleged rights violations, upending the more-burdensome status quo.

“We identified a rule that made little sense yet shut the courthouse doors regularly to people with really serious and valid civil-rights claims that alleged misconduct by police officers,” said Amir Ali, who argued the case in October and is now the center’s executive director.

The public-interest firm litigates law-enforcement misconduct, police shootings, wrongful convictions, prolonged solitary confinement, and other issues. To advance those claims, the center’s Washington-based Supreme Court and appellate program has been strategically pressing cases at the high court and in the lower federal and state courts as well, filling gaps in representation that might otherwise go unfilled.

Different Goal

Devi Rao, who took over for Ali this year as head of the Washington office and deputy director of the Supreme Court and appellate program, said the group is “trying to be strategic about when issues get presented to the court.” That means taking a different view of litigation than a big law firm might.

Rao, who, like Ali, previously practiced at Jenner & Block, noted that “everyone is interested in practicing before the Supreme Court, and each year they’re taking fewer and fewer cases, and there is more and more competition for those spots on the docket.”

But law-firm practice isn’t generally concerned with the development of the law.

“A cert. grant is not the ultimate win in our perspective,” she said of the justices agreeing to hear a case by granting certiorari. “It’s getting a favorable decision from the Supreme Court and moving the law in a positive direction.”

That development can start well-before the Supreme Court and, sometimes, avoid the justices entirely.

Impact Model

When a circuit split emerges in the federal appeals courts, lawyers focused on Supreme Court litigation compete for the chance to appeal to the justices and argue the case if it’s granted.

In addition to not appealing for its own sake, the center’s Supreme Court and appellate lawyers get involved earlier in the process. They look to the federal trial courts for cases that could be good vehicles for the appeals courts. That can lead to developing the law their way and even preventing circuit splits that could lead the justices to step in.

Rao, a former Ruth Bader Ginsburg clerk, pointed to the center’s work on Prison Litigation Reform Act cases as an example of its impact model. That law limits prisoner suits and disputes are often litigated pro se.

“These folks are representing themselves, and because the courts are busy and see a lot of these cases, and they’re not presented by lawyers, we see mistakes in district court opinions—not just one-off mistakes but what we consider to be wrong interpretations of the law,” she said. “And so we’re looking for those issues and then we’ll get involved in the courts of appeal, and we’ve been really successful in getting the courts of appeal to issue plaintiff-friendly rulings in cases where we’ve come in at the appellate level.”

State Opportunity

The current 6-3 conservative high-court majority is unlikely to be swayed in certain areas of the law, like the Eighth Amendment, which bans cruel and unusual punishment.

That doesn’t mean the center isn’t raising Eighth Amendment claims to the justices.

Supreme Court and appellate counsel Easha Anand is the lead attorney on a pending petition for Dennis Wayne Hope, who’s been in solitary confinement for nearly three decades.

A former Sonia Sotomayor clerk and Orrick lawyer, Anand noted the unlikely coalition supporting Hope’s petition. Former corrections directors and prosecutors are among his backers.

Whatever the outcome in that case or any other Eighth Amendment claim at the high court, it’s an issue that the public-interest firm is also pressing in the states.

“States are free to offer more protection to their citizens than is guaranteed under the federal constitution,” noted Kathrina (Kasia) Szymborski, an appellate attorney for the center. That includes states’ analogous provisions to the Eighth Amendment.

“Another reason to look to the state courts is because a lot of questions just are not decided yet under state constitutional provisions, because there hasn’t been as much civil rights and prisoners’ rights litigation going on in those forums,” said center appellate attorney Megha Ram.

Both lawyers stressed the importance of being strategic in state courts as well—as in the federal courts, it’s not always prudent to bring claims just because you can.