The entire Supreme Court seemed to breathe a collective sigh of relief when the final “clean-up” orders list emerged Friday and the court's summer break officially began. We have a little “clean-up” work of our own as we take a look at the triple wins earned by the Northwestern Supreme Court Clinic in the term just ended. And Justice Neil Gorsuch caught our attention with his robust use of footnotes in one of the term's closely watched decisions. Have a terrific and safe Independence Day! Feedback and tips are welcome: Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!

Northwestern SCOTUS Clinic Won Three Criminal Cases This Term

As the dust settles from the busy final weeks of the Supreme Court term, some criminal cases that slipped under the radar warrant some attention. In three of them, backed by the Northwestern Supreme Court Practicum, the criminal defendants won:

• United States v. Davis: In the statutes that boost penalties for “crimes of violence” committed with firearms, the definition of “crimes of violence” was found to be unconstitutionally vague.

• Rehaif v. United States: In the same statutes, the court said the government must prove that the defendant knew he possessed a firearm and that he knew he belonged to the category of persons barred from possessing a firearm.

• United States v. Haymond: In a divided opinion, the court found that a statute that sent a defendant back to prison because he violated terms of his supervised release is unconstitutional because the sentence was not determined by a jury.

In all three cases, Justice Neil Gorsuch was in the majority along with the court's liberals. The cases also had something else in common, according to Sidley Austinpartner Jeffrey Green, a criminal law expert who also co-instructs the Northwestern practicum: The lawyers arguing for the defendants were Supreme Court first-timers.

All in all, the outcomes were cause for celebration for the Northwestern clinic, and an occasion for reflection on what the wins mean. Some takeaways:

➤➤ Last year Justice Sonia Sotomayor famously said that it's “malpractice” for novice criminal defense lawyers to argue before the high court. Green agrees: “Effective advocacy before that court requires special skills that are best developed through experience.”

➤➤ That said, all three lawyers in the clinic's cases—Orlando Federal Defender Rosemary Cakmis in Rehaif, Tulsa lawyer William Lunn in Haymond, and Northern Texas federal defender Brandon Beck in Davis—did well at the lectern. “We coached and coached, and the advocates did a very good job,” Green said. “They made us proud. I can't always say that.”

➤➤ In Gorsuch's second full term, Green discerns similarities between his views on criminal cases and those of his predecessor, Antonin Scalia. “This term has shown that criminal defense lawyers generally should be happy to have Justice Gorsuch on the bench.”

➤➤ The students involved in the cases were important contributors as the lawyers prepared. Northwestern clinical prof Sarah Schrup, who works with the Supreme Court students as well as the school's federal appellate clinic—which also scored a Supreme Court win in a civil case this term—said: “Working with the students on these cases is a lot of work, but it is super refreshing because they throw themselves into this. They were all very deeply involved. It was a different kind of energy this year.”

Justice Neil Gorsuch Is No 'Footnotephobe'

Nearly two decades ago, then-Judge Abner Mikva declared footnotes to be an “abomination” and urged judges to rid themselves of the “footnote virus.” Justice Neil Gorsuch obviously disagrees.

Gorsuch wrote a remarkable 119 footnotes in his 42-page concurring opinion in the federal agency case Kisor v. Wilkie. That tally amounts to nearly three footnotes per page. A modern record? Perhaps. But, surely, his footnote eruption was notable.

In a 2000 law review article, Mikva, a former federal appellate judge and White House counsel, tells the story of how he got rid of “my virus.”

“Judge Stephen G. Breyer, now Justice Breyer, and I were having lunch with his former employer and my former partner, Justice Arthur J. Goldberg,” Mikva wrote. “Both Judge Breyer and I were then on the court of appeals and Justice Goldberg was telling us that footnotes are terrible things, and we ought to get rid of them. We should not use them. And as we walked out after lunch, Judge Breyer said to me, 'You know, I think that is a good idea. We should just stop using them.' So we made a pact. From then on, we would not use footnotes in our opinions.”

Mikva said he believed footnotes add to the length of opinions and articles. He compared their use to having a trash can for semi-relevant material. And, he wrote, if God had intended their use to be a norm, “He would have put our eyes in vertically instead of horizontally.”

Not all of his colleagues agreed. The late Third Circuit judge, Edward Becker, took on the “anti-footnote crusade” in a 1996 law review article.

He wrote: “Footnotephobes seem to have missed the essential point that judges are professional writers and that well-conceived and well-crafted footnotes are valuable tools of their trade. Because the time seems ripe for a dissenting statement, I write to praise footnotes, rather than to bury them.”

Most of the current justices resist the footnote virus. But in recent opinions, Justice Sonia Sotomayor was another exception. In the social security case Smith v. Berryhill, she had 31 footnotes in her 16-page unanimous opinion.

The late Justice Antonin Scalia often said “I don't read footnotes,” former Scalia clerk William Jay wrote in a tribute after the justice died in 2016.

But Scalia did not shy away from writing footnotes. One of his most famous came in his dissent in the Obergefell v. Hodge ruling in 2015, when he mocked Justice Anthony Kennedy's lofty prose in support of same-sex marriage. “The Supreme Court of the United States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Scalia footnoted.

SCOTUS Headlines: What We're Reading

• Record Number of Companies Back LGBT Workplace Rights in SCOTUS Brief. “The 206 businesses that join this brief as amici collectively employ over 7 million employees, and comprise over $5 trillion in revenue,” wrote Quinn Emanuel partner Todd Anten, counsel of record on the amicus brief. [NLJ] More at NYT here: Prominent Republicans File Brief to Support LGBT Rights in Legal Case.

• Supreme Court's Business-Friendly Reputation Takes a Hit. “The chamber ended up on the winning side in 12 of 21 cases (57 percent) it weighed in on this term, among the lowest rates since the center began its tracking a decade ago. Three other cases that drew chamber interest did not reach a ruling or favor one side, the analysis noted.” [Reuters]

• Justice Roberts Is a Different Kind of Swing Voter. “The takeaway is that Roberts will be a centrist mostly when he is trying to channel [Felix] Frankfurter's spirit and avoid judicial partisanship,” Noah Feldman writes. [Bloomberg Opinion]

• SCOTUS by the Numbers: Liberals Score in More Close Cases. “Liberal justices prevailed more often in closely divided cases than did conservatives. The 10-7 count was partly due to every Republican appointee breaking ranks at least once in 5-4 or 5-3 cases.” [Bloomberg Law]

• Benjamin Eidelson, Constitutional Law and Legal Theory Scholar, Joins HLS Faculty. The former Jenner & Block appellate associate in Washington clerked for Justice Elena Kagan and, earlier, for Judge Merrick Garland on the D.C. Circuit. [Harvard Law Today]

• 13 Cases Added to Next SCOTUS Docket: Meet the Lawyers. Jones Day, Kirkland & Ellis, Williams & Connolly, Stris & Maher, Morrison & Foerster, Sidley Austin and Hogan Lovells are among the firms fielding veteran lawyers in cases granted for next term. [NLJ]

• A Supreme Court Term Marked by Shifting Alliances and Surprise Votes. “In what appeared to be a studied effort to keep a relatively low profile after Justice Brett M. Kavanaugh's ferociously divisive confirmation hearings and President Trump's casual attacks on the federal judiciary, the court tried to stay out of major controversies, denying review in abortionand gay rights cases. It decided many cases narrowly, often in coalitions that scrambled expectations. When it overruled precedents, it was in technical cases that attracted little attention.” [NYT]