A Supreme Court Clinic’s Place in the Supreme Court Bar | Jeffrey L. Fisher at Stanford
Fisher, Jeffrey L., A Supreme Court Clinic’s Place in the Supreme Court Bar (February 29, 2012). Stanford Law Review, Vol. 65, 2012 ; Stanford Public Law Working Paper No. 1921430 . Available at SSRN: http://ssrn.com/abstract=1921430 or http://dx.doi.org/10.2139/ssrn.1921430
The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no-one yet has written about their public interest mission. This article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by local counsel instead of Supreme Court specialists are generally at a distinct disadvantage. Finding that assumption to be accurate, the article identifies and discusses opportunities that Supreme Court clinics have to serve the public interest. Most importantly, such clinics can level the representational playing field to the benefit of traditionally underserved litigants and bring balance to certain areas of the law that otherwise tend to be skewed by inequalities in lawyering. At the same time, operating a Supreme Court clinic presents special challenges and responsibilities. Unlike most other kinds of clinical work, Supreme Court cases generate reverberations far beyond the specific parties involved — indeed, sometimes beyond the courts themselves. Consequently, insofar as clinics have control over which cases they bring to the Court and can cause the Court to hear cases that it might not otherwise have heard, the clinics’ work can implicate sometimes-latent tensions between client-centered representation and cause-based advocacy. The article is forthright that when it comes to selecting (and, to lesser extent, handling) cases in the Court, there are not always easy ways to navigate these competing approaches to public interest lawyering. But it explores the ethical, practical, and normative issues that operating a Supreme Court pro bono practice raises.