Orphaned U.S. Supreme Court Cases

It’s rare that a party declines an opportunity to present their case to the U.S. Supreme Court, but it does happen. When the Supreme Court grants cert in a case and the prevailing party no longer wishes to defend their position, what happens?

In a little known and infrequently used procedure, the Supreme Court can invite an attorney to defend the case as an amicus. It’s obviously an honor to be selected by the Supreme Court to defend a case. Appointees have included former SCOTUS law clerks and even Chief Justice John Roberts, back when he was a practicing lawyer.

Stanford Law grad Brian Goldman, however, argues that in some instances, the Supreme Court is practicing judicial activism and should instead wait for the issue to be presented in a more traditional case.

You can read more on this topic in the New York Times and Goldman's article on SSRN. For a recent case that had counsel appointed by the Supreme Court (and revolves around the infrequently used Tenth Amendment), see another New York Times article and a post on SCOTUSblog.

--Ellen Richardson, law librarianship intern