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‘Expert’ Supreme Court Lawyers Blamed for Immigration Rulings

An interesting tidbit from this weekend’s New York Times article on lawyers who attempt to specialize on Supreme Court cases: Critics of such specialists argue that the practice could be to blame for a 2006 ruling that made it next to impossible for immigrants who had entered the country illegally to gain legal status. A 1996 law, the Illegal Immigrant Reform and Immigrant Responsibility Act, created harsher penalties for illegal immigration, including a near ban on legal status for illegal border crossers. When the Supreme Court took on the case of a man who had been deported despite illegally entering the country before the passage of the bill, the man was represented pro bono by a prominent lawyer who specialized in Supreme Court cases.

Why is this controversial? Mostly because he did not win the case, meaning the Court’s ruling set up the 1996 law to be interpreted retroactively on any immigrants who illegally crossed the border. Before the case of Humberto Fernandez-Vargas went to the Supreme Court in 2006, district courts differed on whether the law would apply to immigrants who entered the country illegally before the law was created. But that changed when the Supreme Court ruled against Fernandez-Vargas, who had been deported to Mexico and was represented by an attorney who offered free assistance as long as he could argue the case in front of the Supreme Court.

It’s impossible to know how the case would have gone with another lawyer, but critics of Supreme Court-seeking programs at law schools and prominent firms argue they often push cases to the court that arguably should be kept out. These programs and attorneys try to scope out cases with Supreme Court potential to gain experience and bragging rights arguing before the court.

Immigrant rights advocates argue the Fernandez-Vargas case might have been better off sticking to lower courts, claiming the ruling upped the chances of deportation for all illegal immigrants who entered before 1996. It’s a matter of philosophy: One side argues they want to do what’s best for their particular clients, the other argues they want to do what’s best for immigrants on the whole.

It’s an interesting question, particularly as more cases argued before the Supreme Court are going to so-called “expert” lawyers, which the Times defines as lawyers who have argued before the Court more than five times or work for a firm that has argued cases there 10 times:

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