U.S. Supreme Court
Pro Bono Counsel Loses Supreme Court Case, But Gets Ginsburg Shout-Out
Posted Jun 23, 2008, 09:54 am CST
By Debra Cassens Weiss
A former law clerk for Justice Samuel A. Alito Jr. has lost his first U.S. Supreme Court case, but he got important praise from Justice Ruth Bader Ginsburg that is likely to boost his career.
Ginsburg’s majority opinion (PDF posted by SCOTUSblog) held that a federal appeals court can’t increase a defendant’s sentence on its own initiative. A government appeal or cross-appeal must be filed before the appellate court can act, Ginsburg wrote.
Jay Jorgensen, a partner at Sidley Austin, had been appointed as pro bono counsel to argue the appeals court’s point of view. “Mr. Jorgensen accepted the appointment and has well fulfilled his assigned responsibility,” Ginsburg said in the opinion.
Jorgensen is one of two former law clerks who were tapped to argue cases this term as pro bono counsel. Such appointments have helped helped jump-start the Supreme Court careers of several former high court clerks, including appellate litigator Maureen Mahoney and John G. Roberts Jr., now the chief justice.
“Obviously, it’s a big deal in my life and career," Jorgensen told ABAJournal.com. Ginsburg's mention of his work "means a lot to me.”
Jorgensen clerked both for the late Chief Justice William H. Rehnquist and for Alito when he was a federal appeals judge. He says he met Ginsburg when he clerked for Rehnquist and considered her to be "a gracious and kind person."
He got the appointment in the sentencing case because Solicitor General Paul Clement opted not to defend the appeals court's action.
"There is an indication it’s an uphill battle when the solicitor general thinks the argument completely lacks merit," Jorgensen observes.
The Supreme Court ruled in the case of Minneapolis gang member Michael Greenlaw, who had been convicted on drugs and weapons charges. The St. Louis-based 8th U.S. Circuit Court of Appeals increased Greenlaw’s sentence by 15 years, saying the applicable law plainly required it.
Ginsburg quoted a previous opinion by Justice Antonin Scalia in which he said courts “do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.”
Alito apparently agreed with his former law clerk, writing in dissent that appeals courts have the discretion to correct errors sua sponte for the benefit of nonappealing parties. He was joined by Justice John Paul Stevens and partly joined by Justice Stephen G. Breyer.
The case is Greenlaw v. U.S.
The other former law clerk appointed this term as pro bono counsel, Peter "Bo" Rutledge, won his case when the U.S. Supreme Court ruled that judges do not need to notify the defendant when considering a sentence that deviates from federal sentencing guidelines.
"Way to go, Bo," Jorgensen says. "Very impressive."