The Catholic University of America

A dress rehearsal before a friendly panel: Professor Amanda Leiter is mooted by faculty colleagues in advance of her arguments before the Supreme Court on Nov. 10.


A Dry Run Leading Up to a High Court Argument

There were four faces instead of nine lined up in front of her to ask difficult questions and probe for legal weaknesses of argument. One of the questioners was her own father, and the others were faculty colleagues.

The conditions in the law school’s Walter Slowinksi courtroom faced by Professor Amanda Leiter were somewhat different than those she will face on Nov. 10, when she argues before the U.S. Supreme Court for the first time in her career. Even so, the mooting session offered to her as preparation on Oct. 28 was a valuable opportunity to air out her arguments, brace for oral combat and otherwise get her game on.

Leiter, a clerk to Justice John Paul Stevens in 2003-04, was asked by her former boss last summer to brief and argue Kucana v. Holder, 08-911. The case raises immigration and administrative law issues, specifically whether the 2005 REAL ID Act strips courts of jurisdiction over discretionary decisions made by the Board of Immigration Appeals.

Leiter’s involvement in the case arises from a rare circumstance: she is advancing an “orphaned” argument before the high court so that both sides of the case receive a full airing. Although infrequent, it sometimes happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the court will name a lawyer—almost always a former clerk—to step in and present arguments that have no other advocate in the case.  

The case to be decided focuses on a narrow area of statutory law. At issue is whether, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, federal courts have jurisdiction to review the Board of Immigration Appeals’ denial of an immigrant’s motion to reopen proceedings—in this case, of Agron Kucana, an Albanian native. The U.S. Court of Appeals for the 7th Circuit said no in a divided ruling. The solicitor general’s office, which would ordinarily be in the position of defending the 7th Circuit decision, told the Supreme Court in its brief that “the court of appeals erred.”

Assisting Leiter in talking through the complicated particulars of the case were Allison Larsen, a visiting assistant professor at the Columbus School of Law for the spring semester of 2010; Carter Bishop, another visiting professor from Suffolk University Law School; faculty professor Marshall Breger; and Louis Cohen, senior counsel at Wilmer Cutler Pickering Hale and Dorr, and himself a former high court law clerk who has 16 Supreme Court arguments under his belt. Cohen is also Professor Leiter’s father.