Approaching The Nation's Highest Bench
Professor Jeffrey L. Fisher is the subject of a feature article in University of Michigan's Law Quadrangle Notes. Professor Fisher and Professor Pamela S. Karlan are quoted and the Constitutional Law Clinic is mentioned. A sidebar lists all Professor Fisher's cases:
Professor Fisher might have become a tennis player. Instead he became a lawyer, and at age 33 he argued his first case in the Supreme Court. In February of this year he argued that the Supreme Court should uphold $2.5 billion ($4.7 billion with interest) in punitive damages against Exxon Mobil for its role in the oil spill that befouled Alaska’s Prince William Sound in 1989. That event marked his seventh appearance before the Court.
Fisher says, clients "wouldn’t ordinarily have the funds to pay a Supreme Court firm.”
“I was down here for a conference that the school had put together on the Blakely case,” he recalls, “and I spent some time talking to Pam and other professors about this clinic they were getting going. The more we talked, the more we saw the potential for something really neat here and for me to come in and be a part of it. I guess when your mom’s a teacher and your dad’s a lawyer, you’re destined to become a law professor.”
Fisher says he acquired his “nose” in his clerkships, having worked for Ninth U.S. Circuit Court of Appeals Judge Stephen Reinhardt prior to Justice Stevens. “I came to understand what kinds of things catch a justice’s eye and make for a good case,” he says, “and I’ve been lucky enough in practice to be able to identify when one has a chance to get in the door. That’s one of the real tricks of the game. The Supreme Court takes one case in a hundred, but once you’re in the door, you have a 50-50 chance.”
The thread that runs through all his Supreme Court cases is, as he puts it, “helping people and helping causes that don’t always have an experienced and ready advocate, most often criminal defendants or civil rights or discrimination plaintiffs, two classes of systematically underrepresented parties in the Supreme Court.”
There are principles, and then there is strategy. “The other thing that I’ve tried to look for are areas of law where it’s possible to build cross-ideological coalitions,”Fisher says. “Especially after Bush v. Gore, so many members of the public, and even many lawyers, think of cases in stark liberal v. conservative terms. But it doesn’t have to be that way in a lot of issues. In criminal procedure especially, we’ve been able to show that there are deeper jurisprudential principles, like adherence to tradition and constitutional history, that can bring together justices from across the ideological spectrum. In Crawford, we got seven votes for a robust understanding of confrontation. In Blakely, we got five, but from different parts of the court, for a robust interpretation of the Sixth Amendment right to trial by jury. “That’s what I teach a lot in my clinic,” he adds. “If we get a case that the default stale lens says is on the wrong way of that 5-4 divide, then we need to figure out a way to slice the apple a different way."
According to Karlan, his colleague at Stanford’s Supreme Court Litigation Clinic, Fisher’s pedagogical prowess is on a par with his lawyering. “He combines incredible patience and support with real tough-mindedness,” she says. “He demands a lot from the students, but inspires them so that they’re eager to meet his expectations. If I could have designed a colleague from scratch, he’d be exactly like Jeff.”
“There probably aren’t more than a handful of people in the whole country who have Jeff’s combination of skills and interests,” Karlan adds. “Most Supreme Court practitioners don’t want to leave practice to teach and most professors with Supreme Court practices don’t want to involve students in the intensive way that clinical education requires. Jeff is a very rare bird in that respect.”
“The most intimidating thing about the Court, that it’s so powerful it can do whatever it wants, is also incredibly liberating,” says Fisher. “Lawyers in other courts spend so much time trying to box in judges and research every jot and tittle that it’s a great pleasure in the Supreme Court to be able to write a brief that relies most directly on just the strength of reasoning. Students are almost more prepared for Supreme Court arguments than any other kind because they’re used to thinking of every problem from first principles. What I really loved about law school is also what I really love about Supreme Court practice.”
“I’m incredibly happy right now at Stanford,” he says. “I want to take advantage of the academic environment I’m in to do more research and entrepreneurship in cultivating legal arguments that aren’t necessarily being put forth in cases right now. I have an unusual platform from which I can go look for clients or choose between competing opportunities, based solely on how the potential cases will seed my research and writing and provide learning opportunities for students. My great hope is that I can keep on for years and have my academic research cross-fertilize my Supreme Court lawyering. Each time I spend a good chunk of time in one direction, it makes the other part of what I do richer.”
As he said in an interview with CNN, “One of the jokes when you’re clerking (at the Supreme Court) is you spend a year working on 100 Supreme Court cases, and you spend the rest of your career trying to get No. 101. I’ve been very fortunate.”