In this week's Legal Times, we reported on the unusual coincidence of the Supreme Court having two cases argued on the same day by first-time advocates (and former high court clerks) who were appointed to do so by the Court. The Court appointed them as amicus curiae to defend, on a pro bono basis, lower court decisions that the United States, as respondent, decided it did not want to defend.
Today was the big day for these appointed counsel: Jay Jorgensen of Sidley Austin (who clerked for Samuel Alito Jr.), arguing in Greenlaw v. United States, and Peter Rutledge, a law professor at Catholic University (who clerked for Clarence Thomas), arguing in Izararry v. United States. Both were sentencing disputes, and both Jorgensen and Rutledge acquitted themselves well -- possibly even carrying the day.
Jorgensen was especially sure-footed in arguing that an appeals court can increase a defendant's sentence even when the government did not ask it to do so. He handled questions deftly, faltering only momentarily when he could not remember the name of a decision he wanted to cite. "I wish I could remember the name of the case ... but Justice Scalia was the author," he said. “Me too,” interjected Justice Antonin Scalia lightheartedly.
Rutledge's case asks whether a judge must notify both sides before sentencing a defendant outside the range set by the federal sentencing guidelines. Rutledge said notice was unnecessary in the "new era" when the guidelines are only advisory.
Chief Justice John Roberts Jr. who got his first shot at a Supreme Court argument in 1989 with a similar appointment went out of his way at the end of each argument to thank Jorgensen and Rutledge for "undertaking and discharging" the assignment from the Court.