An RBG Trifecta—A SCOTUS First?
It could be the first time that three former clerks of a single justice will be arguing before their justice.
February 20, 2018 at 05:48 PM
4 minute read
Justice Ruth Bader Ginsburg will appear before some familiar and friendly faces today.
No, it's not another talk before a law school or synagogue, like the nine such events she attended during the Supreme Court's winter break, many of them marking her 25th anniversary on the high court.
Today she will be hearing an oral argument in which all three lawyers who rise to speak were former law clerks of hers. Needless to say, they like her, and she likes them.
It could be the first time that three former clerks of a single justice will be arguing before their justice. (Please help us out here: Do you know of any other trifectas like this? University of California Hastings College of the Law professor Rory Little, who previewed the case for SCOTUSBlog, thinks it is a first, but it's hard to be certain.)
The case is City of Hays, Kansas v. Vogt, an important test of the Fifth Amendment's protection against forced self-incrimination. At issue is whether the Fifth Amendment is violated when incriminating statements are used at a probable cause hearing, not at a criminal trial.
The city of Hays argues that the Fifth Amendment is a trial right, not a pre-trial right, and will be represented by University of Virginia School of Law professor Toby Heytens, a director of the school's Supreme Court clinic and a Ginsburg clerk in 2002 and 2003. Heytens, formerly an assistant in the U.S. solicitor general's office, was appointed last month as Virginia's solicitor general. His first day on that job will be tomorrow, Feb. 21.
Arguing on the side of Hays will be Elizabeth Prelogar, a 2009-2010 clerk for Ginsburg and a current assistant to the U.S. solicitor general who has been detailed to the legal team of special counsel Robert Mueller.
On the other side of the aisle, defendant Matthew Vogt will be represented by Kelsi Corkran, a 2013-2014 Ginsburg clerk and partner at Orrick, Herrington & Sutcliffe. She will argue that the Fifth Amendment protection extends to forced incriminating evidence given at a probable cause hearing. (And if that's not enough RBG clerk power, it should be noted that Orrick senior associate Daniel Rubens, who will be sitting second-chair with Corkran, is also a 2013-2014 Ginsburg clerk.)
“I'm thrilled and excited to be sharing an argument with two other RBG clerks,” said Heytens. “The justice has been a great mentor and role model to me, and I'm sure the same is true of Elizabeth and Kelsi. I hope [Ginsburg] gets a kick out of it.”
Corkran said, “I've heard great things about Toby and Elizabeth for years, so I'm looking forward to arguing against them. I'm sure we will keep each other on our toes.” Prelogar declined to comment.
The coincidence is a perfect storm for Ginsburg; no one can say she is biased toward one side or the other. But she would not have to worry even if only one side was represented by one of her clerks. Former clerks who argue before their justice—it happens all the time—uniformly attest that they get no special favors during oral argument from their boss.
“It was as though he never met me before,” recalled Jones Day of counsel Donald Ayer, who argued 17 cases before William Rehnquist, the justice he clerked for. “It's not in a bad way, it was just his personality. He played it straight, all the way around.”
We hope you enjoyed this sample of Supreme Court Brief from Law.com— an insider's guide to what's happening at 1 First St. Veteran correspondents Tony Mauro and Marcia Coyle analyze the court's most consequential cases, uncover its unique personalities and traditions, and keep you up to speed on the day's arguments. Straight to your in-box every morning the court is in session. Learn more here.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllAmerican Bar Association Calls for Enforceable Supreme Court Ethics Code
Fired by Trump, EEOC's First Blind GC Lands at Nonprofit Targeting Abuses of Power
3 minute read‘What’s Different About Jarkesy?’ 5th Circuit Weighs if FCC Forfeiture Order Is Constitutional
Trending Stories
- 1Public Notices/Calendars
- 2Wednesday Newspaper
- 3Decision of the Day: Qui Tam Relators Do Not Plausibly Claim Firm Avoided Tax Obligations Through Visa Applications, Circuit Finds
- 4Judicial Ethics Opinion 24-116
- 5Big Law Firms Sheppard Mullin, Morgan Lewis and Baker Botts Add Partners in Houston
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250