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View Diary: Obama moves to avoid Supreme Court case in order to preserve indefinite detention (36 comments)

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  •  Here's an article about the practice (1+ / 0-)
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    These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.

    In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer -- almost always a former clerk -- to make the orphaned argument.

    Why does the Court do this? As Justice Ruth Bader Ginsburg expressed it in a footnote in the 2003 case Clay v. United States, appointing a lawyer to defend the lower court judgment when no one else will "permits us to decide the case satisfied that the relevant issues have been fully aired."

    In a sense, it is the truest form of amicus curiae or "friend-of-the-court" representation, because the appointed advocate has no client -- and does not get paid. But the intangible rewards for the lawyer are great, representing yet another way in which a Supreme Court clerkship can be a ticket to top-tier career opportunities.

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