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Supreme Advocate

By Donna Mallard | Jun. 2, 2015
News

Law Office Management

Jun. 2, 2015

Supreme Advocate

Jeffrey Fisher, co-director of Stanford's Supreme Court Litigation Clinic, has argued more than 22 cases before SCOTUS

On April 29, 2014, three law students were ushered out of the Lawyers' Room at the U.S. Supreme Court and into the chamber, hustling past the line of tourists, SCOTUS groupies, and other interested parties hoping to get in. They anxiously took their seats, waiting to hear oral arguments in Riley v. California, a case with major repercussions regarding the Fourth Amendment right to privacy, particularly as it applies to cell phones.

Arguments began with the petitioner's lawyer, a tall, lanky man with graying hair and glasses. When he started speaking, the trio nudged each other excitedly. "There's Jeff," one of them said.

"The case involves applying the core protection of the Fourth Amendment to a new factual circumstance," stated Jeffrey L. Fisher, co-director of Stanford Law School's Supreme Court Litigation Clinic and lead counsel for David Leon Riley. "It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers ... of somebody's house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets."

Justice Anthony Kennedy questioned Fisher about when police can seize evidence. The attorney also fielded questions and comments from the other justices - with the exception of Stephen Breyer and Clarence Thomas (per usual). The students listened as an apparently sympathetic Justice Elena Kagan asked Fisher what they later characterized as a "softball" question, on exigencies that would allow police to look at cell phones. "She's quoting from our brief!" one of them whispered.

The law students could be forgiven for being giddy. Kristin Saetveit and Tess Reed, both then 25, and Alec Schierenbeck, 27, had, as participants in the Supreme Court Litigation Clinic under Fisher's tutelage, crafted many of the arguments he delivered to the justices that day. Typically, Stanford's remarkably influential clinic has anywhere from five to eight cases on the high court's yearly docket, out of a total of about 70.

Indeed, the fact that the Riley case was before the Court at all was due in large part to a handful of students at the clinic. Riley was arrested in 2009 for driving with expired registration tags. The case quickly escalated to include a weapons charge and then charges in a gang-related shooting after police browsed through Riley's cell phone and found texts, videos, and photos that seemed to implicate him. Riley was convicted in the shooting and sentenced to a lengthy prison term, which was affirmed by the California court of appeal. (The state Supreme Court denied review.)

For more information on the clinic's pending docket and its merits cases, see "Recent Filing and Developments." In the overwhelming majority of criminal cases like this one, that's where Riley's legal story would have ended. But in 2013 the Stanford clinic unexpectedly found itself short one case to work on (the usual caseload is twelve per year). Fisher presented the students with two choices. When the students heard that Riley was about protecting cell phone privacy - a critical issue to them - Fisher says, "They ordered me, 'You are taking that case!' "

And so Riley was lifted from oblivion to the ranks of landmark Fourth Amendment cases.

Fisher himself was hardly a stranger to the U.S. Supreme Court, having appeared before it 22 times. In a special report on the high court, Reuters names him in the top tier among the few dozen lawyers who have argued before the justices multiple times. (See "The Elite of the Elite".) In 2008 he argued an astonishing five cases, including the Exxon-Valdez damages case (Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)) and Kennedy v. Louisiana (554 U.S. 407 (2008)), which led to the nullification of laws in several states that allowed the death penalty for crimes other than murder. At age 44, Fisher's is already a storied career.

Fisher grew up in Leawood, Kansas, a middle-class suburb of Kansas City. The son of a civil defense lawyer and a kindergarten teacher, the litigator/law professor spreads his arms and grins: "Look at me now. I'm a melding of the two."

He was an athletic boy, competing in regional-level tennis and high school basketball, and he went fishing and camping. When Fisher graduated from Duke University with a vague interest in a legal career, his father suggested that he test the waters working as a paralegal. After two years at Williams & Connolly in Washington, D.C., he enrolled at the University of Michigan Law School. He capped his final semester with Professor Deborah C. Malamud's Supreme Court Decision-Making seminar, in which students argued then-pending cases, role-played as the justices, and wrote opinions.

Fisher graduated with honors in 1997 near the very top of his class. Next he had two back-to-back prestigious clerkships: the first for Judge Stephen Reinhardt for the Ninth U.S. Circuit Court of Appeals, followed by another for Justice John Paul Stevens at the U.S. Supreme Court.

Clerking for Judge Reinhardt at the Ninth Circuit was an eye-opening experience. "He had such a strong commitment to justice," Fisher says, describing the judge as a strident liberal, in the mold of the Warren Court. But what impressed the young Fisher most was how hard Reinhardt worked to find an ally on the court. "On the court of appeals you can have the greatest ideas in the world, but you can't get anything done unless you find at least one other person to agree with you," he says, referring to the three-judge panels that hear most cases. So you have to "put yourself in others' shoes."

At the Ninth Circuit, he recalls witnessing the steady stream of people who desperately needed help and had no other recourse. "Many people can't get redress for injuries or relief from harmful governmental policies from anyplace other than the courts," says Fisher.

When his time with Reinhardt was finished, Fisher moved to Washington, D.C., to begin his term with Justice Stevens. (Applications for the 34 clerkships at the high court in 1998 were due a year in advance, and Fisher had applied simultaneously to all nine justices. Stevens was the first to respond and hired Fisher - from a pool of roughly 1,000 applicants.)

Fisher says his year as one of Stevens's three clerks was "a phenomenal experience," describing the justice as "so smart, conscientious, humble, and unassuming." From Stevens, he learned "what makes the Court tick" and how to coax the other justices to take a case. "He'd say to us, 'Oh, there's a good historical argument here, so let's flesh that out because Justices Scalia and Thomas understand that,' " Fisher says.

Clerking for Stevens, Fisher says, he was struck by the stark disadvantages many criminal defendants faced getting their cases heard by the high court. "Many had trial lawyers with little appellate experience, or who were court appointed with limited time and resources, or not prepared to go against the U.S. government or state attorneys general."

Cert petitions in such cases - and even briefs at the merits stage - often garnered only one amicus brief, filed by the National Association of Criminal Defense Lawyers. "I always thought those briefs were really important, both to get the Court to accept the case and to decide it properly." Fisher later volunteered to write briefs periodically for the organization.

One day a colleague popped into Stevens's offices and implored Fisher to go listen to a lawyer delivering oral arguments in front of the justices, saying, "He's really good." That lawyer was future Chief Justice John Roberts.

On the final day of his clerkship, Fisher stood on the courthouse steps and wondered if he'd ever return. "The joke is, as a clerk you spend one year working on a hundred Supreme Court cases and the rest of your career trying to get to a hundred and one," he laughs.

The prospect seemed doubtful. His soon-to-be fiancé, whom he knew from law school, had been offered a coveted public defender position in Seattle, and Fisher would follow her there. Most of his fellow SCOTUS clerks stayed in D.C. or joined practices in New York or Chicago. When they learned where Fisher was headed, they ribbed him, saying, "Good luck in Seattle! Catch some salmon!"

"The irony is, of all the people I clerked with, I was the first one back arguing a case before the Court," Fisher says. "Many of them were as talented as me, but they were working under so many lawyers, or former solicitors general at the D.C. firms."

In Seattle, Fisher landed an associate position at Davis Wright Tremaine and quickly built a First Amendment and civil litigation practice. He also did pro bono work, mostly in criminal law.

At lunch time, Fisher liked to read opinions from the Washington state appellate courts. And that's how he chanced upon his "two big breaks." One was the Washington Supreme Court's unanimous ruling to reinstate a defendant's criminal conviction under the Confrontation Clause. (State v. Crawford, 147 Wash. 2d 424 (2002).) Fisher phoned Michael Crawford's appointed defense lawyer and asked if he planned to appeal the case to the U.S. Supreme Court. "I believe he thought I was a little crazy," Fisher says. "He said, 'Did you notice we lost 9-0? If you want the case, you can have it.' "

Around the same time, Fisher came across a criminal case that raised key Sixth Amendment issues-once again, in a unanimous ruling against the appellant. (See State v. Blakely, 111 Wash. App. 851 (Ct. App. 2002).) Fisher took that case over as well. He drafted two petitions to the U.S. Supreme Court and sent them off.

"I thought maybe the Court would take one of the cases. When the Court took them both in 2003, it was 'Oh, my gosh!' " With Davis Wright's support, Fisher devoted a large chunk of the next four to five months to preparing the cases, working pro bono.

Crawford was calendared in November. Not surprisingly, Fisher calls his first appearance arguing before the justices "incredibly thrilling and nerve-wracking." Knowing that the justices take pride when one of their former clerks appears before them, he was anxious about not embarrassing Justice Stevens.

But seeing all of the justices seated just where he'd left them five years earlier put him at ease.

At the time Michael Crawford was tried for assault and attempted murder, Fisher says, trial judges routinely permitted prosecutors to introduce into evidence out-of-court statements, interviews, and documents from witnesses, doctors, forensic scientists, and assorted "experts" who weren't available for cross-examination, as long as the judge was convinced that such cross was unlikely to bear fruit. When Fisher brought Crawford before the high court, he says he was telling the justices, "I want you to hereby revamp your entire approach to this constitutional provision, which comes up in criminal courts every single day all over the country."

Fisher was heartened that three of the justices had already expressed reluctance in writing about how the Confrontation Clause was being applied. Also, "From my clerking experience, I realized the Supreme Court takes with a grain of salt what the lower courts have done."

The U.S. deputy solicitor general slated to oppose Fisher quickly learned how undaunted Fisher was: "Jeff called and asked whether I wanted to file an amicus brief in support of his client," says Michael R. Dreeben. Fisher explained that previous filings the government had made on the Confrontation Clause seemed to align with his client's position. Says Dreeben, "I thanked him for his advice and thought 'that was charming.' Not necessarily going to succeed ..."

Fisher rehearsed his arguments for weeks, holding several moot courts to prepare for every possible question from the justices. But four minutes into his oral presentation at court that day, he says, Justice Kennedy asked him a hypothetical he'd never thought of: whether the notes of a private investigator at an accident scene would be testimonial. "Crawford might still be the hardest one I ever did" before the Supreme Court, he says. "It just happened to be my first."

Four months later the Court issued its landmark decision in the case, ruling unanimously in favor of Fisher's client. (Crawford v. Washington, 541 U.S. 36 (2004).)

Two weeks after his victory in Crawford, a somewhat more confident Fisher appeared before the justices again, arguing in Blakely that jurors must be involved in making a determination about factual circumstances of a crime - such as whether the defendant acted with "extreme cruelty" - that affect prison-sentencing ranges. When the Court's 5-4 ruling was announced at the end of the term, Justices Clarence Thomas and Antonin Scalia joined three members of the liberal wing to reverse. (Blakely v. Washington, 542 U.S. 296 (2004).) Fisher was just 33 years old.

Tom Goldstein, co-founder of both SCOTUSblog and Stanford's Supreme Court clinic, says the significance of Fisher's double triumph is hard to overstate. "[Jeff] launched a revolution in American sentencing in the Crawford and Blakely cases, which will be defining rulings in American law for a century," says Goldstein. "And he's continued that same sort of path-breaking work in the sentencing area. He leads an entire field" in constitutional criminal procedure at the Supreme Court.

Dreeben says Fisher contributed to a paradigm shift at the high court, where over the past 15 years briefs have moved from emphasizing the purpose of a constitutional right and the Court's case law interpreting it to focusing on text and history. "Jeff was one of the first to zero in and make use of it, and now everyone has to do it," says Dreeben.

Fisher was also developing his own approach to oral arguments: presenting them to the nine justices as a dialogue. "The way I view them is, 'I've had the opportunity to write you a 50-page brief,' " he says. " 'Now I have a half-hour to learn what concerns and questions you have, so I can persuade you to my position.' "

Fisher made partner at Davis Wright less than five years after joining the firm. Steve Rummage, a partner who oversaw and collaborated with Fisher there, acknowledges that the two major Supreme Court wins were a boost. "It kind of puts him on the fast track to making partner, you know?"

Fisher's back-to-back high-profile victories brought him invitations to speak around the country. One came from Robert Weisberg, a criminal law professor at Stanford who put together a conference in the fall of 2004 on Blakely's ramifications for sentencing. At the conference, Fisher had coffee with another Stanford law professor, Pamela S. Karlan, and Lawrence C. Marshall, then an associate dean who oversaw all the legal clinics; Fisher also knew him as a Stevens clerk alumnus. They discussed the pilot project Karlan had launched earlier that spring - the Supreme Court litigation clinic - along with Goldstein, a veteran Supreme Court advocate.

A few months later, Marshall asked Fisher to consider joining the budding clinic as co-director with Karlan. Says Fisher, "I had been doing some teaching at the University of Washington's law school, which I loved, but I wasn't prepared then-or now-to hang up my legal stirrups." He describes the clinic position as "the perfect meld between academia and practice."

After talking it over with his wife, attorney Lisa Douglass, and having a few more conversations with Marshall, Fisher decided to apply. He started work in the fall of 2006.

Stanford's Neukom Building houses nine of Stanford's eleven legal clinics. Visitors are greeted by colorful electronic screens on the walls that pose a rotating series of questions, such as, "What did you like best about law school?" "What is a law school's biggest responsibility?" and "What was the worst Supreme Court decision ever?" Smaller adjacent signs offer responses from an assortment of deans, students, and professors past and present. The main room is an open-architecture workplace with three-person workstations, grouped by clinic. Inside the Mills Legal Clinic on the first floor is Fisher's office, a modest-size box with neatly stacked legal papers everywhere. The walls are adorned with autographed photos of Justice Stevens and the rest of the Supreme Court, plus Fisher's own nature photography and pictures of his family. (He and Douglass-now a lecturer and supervising attorney at the law school's Community Law Clinic in East Palo Alto-live "a ten-minute bike ride" away from campus with their two daughters.)

About 150 students have participated in the Supreme Court clinic, according to Fisher. (Three or four law students apply for each available spot.) Candidates are chosen by a combination of factors that include law school performance, writing ability, and, because they work in teams of three or four, social skills. Diversity is also considered. Although the teams separately tackle different cases, they convene regularly to review and critique their peers' work. Fisher estimates that the clinic's success rate for getting cert petitions accepted is 35 to 40 percent - something none of its founders or directors anticipated. (See "Stanford Supreme Court Litigation Clinic by the Numbers," page 18.)

The clinic was the first of its kind when it opened its doors more than a decade ago. In those early days, it solicited cases much the way Fisher did for Crawford and Blakely. That still happens, but far more requests come in than it can handle. Because the clinic is built around the law school, the directors aim to line up a mix of cases: criminal and civil, constitutional and statutory, at the certiorari stage (both for and in opposition to the Court taking a case) and on the merits - and, of course, all must be appropriate for pro bono work.

At any given time, about a dozen students work full time at the clinic, splitting into teams of three, often joined by an advanced student who has already taken the clinic for credit but is working on a case with Fisher or another professor.

The clinic has now been around long enough that its alumni have progressed to arguing before the Court themselves: Last year Fisher found himself opposing Stanford Law graduate Rachel P. Kovner, who as assistant to the solicitor general prevailed 8-1 in Heien v. North Carolina (380A11-2). "I hope they don't keep beating us," Fisher deadpans.

Harvard, Yale, the University of Pennsylvania, and the University of Virginia are among the law schools that have since opened their own Supreme Court litigation clinics.

When students Kristin Saetveit, Tess Reed, and Alec Schierenbeck began working on Riley in March 2014, they had less than four weeks to construct the clinic's reply brief. That included debating which arguments were strongest. According to Reed, this required "spending hours and hours in a conference room with two of your close friends on a Friday, Saturday, and Sunday night."

To Fisher, Riley was a classic constitutional problem: taking a centuries-old protection (the Fourth Amendment) and applying it to a new circumstance (smartphones) that was unimaginable at the time it was adopted. He and his student team went back to basics: Why do we have these rights? What were the Framers trying to protect?

The students say Fisher took them seriously and gave them a lot of autonomy. Says Reed, "Even as you wonder, 'Is he just asking us which is the strongest argument so we can practice using our brains?' he really does care what our opinion is."

"It's very encouraging to work with someone so prominent and successful who wanted to know what we thought, and incorporated our ideas," adds Saetveit.

When drafting the clinic's final Riley brief, the students pressed Fisher to take out a few hackneyed phrases ("through the looking glass" was a target). "But I really like them," Fisher insisted. Still, he ended up cutting them - and not just to be collegial.

"You're not writing a brief for yourself, but for the justices and law clerks," he says. "And if four or five smart Stanford students - who are not far removed in age and experience from the clerks - are telling you they really don't like something, you have to take that very seriously."

"We have this joke in the clinic that we all worked on the case but we let Jeff take the oral argument," says Reed.

Edward C. DuMont is the California solicitor general who argued Riley against Fisher. He credits the students on the team with devising a savvy argument centered on "facts out there in the world today about cell phones and electronic devices and rapidly changing technology." And although it was untraditional for the petitioners to include a screen shot of an iPhone in a reply brief, DuMont says, the Court referred to the image in its opinion. The approach was "creative, aggressive-appropriate, but very forward," DuMont says.

Chief Justice Roberts wrote the opinion for the Court: "Modern cell phones ... [w]ith all they contain and all they may reveal ... hold for many Americans 'the privacies of life.' ... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple - get a warrant." (Riley v. California, 134 S. Ct. 2473, 2494 (2014).)

____________________________________________________________

The Elite of the Elite

Last December, Reuters issued a special report titled "The Echo Chamber," in which the news agency identified 66 attorneys who repeatedly argued cases before the U.S. Supreme Court from 2004 to 2012 - from among more than 17,000 petitioners. The report questioned whether this insularity created a rarified atmosphere in which SCOTUS and the attorneys (63 Caucasian and all but 8 male) were, in essence, talking to themselves and excluding a large segment of viewpoints and sectors across America as they interpreted constitutional law.

Eight of those 66, all men, were named as the elite of the elite, accounting for almost 20 percent of the arguments made by private-practice lawyers before the Court during that period. One of them was Jeffrey Fisher, co-director of Stanford Law School's Supreme Court Litigation Clinic.

But Fisher is an outlier, even in the larger group. Fifty-one of the counsel identified work for firms that mostly represent corporate interests. Fisher was one of only two attorneys whom the Supreme Court justices themselves named as regularly representing individual criminal defendants.

Fisher attributes this repeat phenomenon in large part to the relatively recent rise of a "Supreme Court Bar" - attorneys who specialize in bringing cases to the high court's attention. Almost half of the 66 previously clerked for a Supreme Court justice, where they learned how to appeal to the Court's sensibilities.

In some ways, Fisher says, drafting briefs the Supreme Court will accept is easier than drafting them for lower courts. "It's no mystery who you're writing to," he says. "The essence of your job is to think of how to appeal to at least five justices."

Pamela S. Karlan, co-director of Stanford's litigation clinic, adds, "The Court accepts cases on the basis of whether a question of federal law has to be answered. The merits are usually, but not always, subsidiary." While the justices won't grant cert for a case just because a particular lawyer submits it, Karlan says, "If a case is badly presented, they may wait for a case with a better presentation (i.e., lawyer)."

In the report, Justice Clarence Thomas concurred. "Any number of people will vote against a cert petition if they think the lawyering is bad," he said. "[In a tough case], you need really good lawyers to tee it up, to make the best arguments."

Stan Sinberg is a San Francisco-based writer who has worked as a columnist, satirist, and radio commentator.

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Donna Mallard

Daily Journal Staff Writer

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