Our Supreme Court practice is one of the largest and most highly credentialed in the country. Five of our partners have argued before the Court, with 26 arguments between them. In total, our appellate group boasts more than 50 attorneys who collectively have more than 20 district court clerkships, 60 court of appeals clerkships, and more than a dozen U.S. Supreme Court clerkships for 10 different Justices. Our attorneys have litigated hundreds of cert stage and merits cases in the Supreme Court, spanning the full range of the Court’s docket—from copyright and patent law to tort and criminal law; from labor and employment to punitive damages and preemption; statutory domains like environmental law; national security; and almost every constitutional challenge available, from the First Amendment to the dormant Commerce Clause.
Our Supreme Court record during the 2018 Term is a testament to the depth of our first-chair appellate bench, producing five successful results in five cases argued by four different partners. Setting significant precedent for the protection of Fourth Amendment rights, we achieved a unanimous win in Byrd v. United States. We represented Microsoft in a fight to prevent the U.S. government from unilaterally searching private emails stored in foreign countries—a case described by the Washington Post as one of the “most intriguing, consequential, and complex legal cases having to do with technology now in the courts.” In Hughes v United States, the Court rejected the views of 10 courts of appeals to side with us in an important case at the intersection of the Federal Sentencing Guidelines and rules of stare decisis. In City of Hays v. Vogt, we achieved a clear victory for our client, Officer Vogt, allowing him to pursue his civil rights claim under the Fifth Amendment’s self-incrimination clause. And in Sessions v Dimaya, we persuaded the newly seated Justice Gorsuch to side with the Court’s liberal wing, for a 5-4 win, in an immigration case affecting thousands of deportations a year.
In 2020, three different Orrick partners argued three Supreme Court cases in a six-day period in October—including two on the same day. In Oracle v. Google—a case the media has called the Copyright Battle of the Century—we represent Oracle in a $9 billion copyright infringement suit against Google raising important questions about the Copyright Act’s application to software. In Torres v. Madrid, we urged the Supreme Court to clarify that the Fourth Amendment does not require victims of police brutality to submit to the police in order to preserve a claim of excessive force. We defended the rights of noncitizens to seek relief from removal from the United States in Pereida v. Barr. And just a few weeks later, in November 2020, we won summary reversal in Taylor v. Riojas, marking the first time in 16 years the Supreme Court has denied qualified immunity to government officers charged with constitutional violations.
Preparation for Supreme Court litigation often begins years in advance, identifying certworthy issues for our clients and assisting them in deciding whether—and, if so, how—to craft a strategy that will position their case for review. For other clients, we counsel them on how to avoid Supreme Court review.
When cases do reach the Court, Orrick employs its distinctive writing style and meticulous approach to oral argument to effectively tell our clients’ story and win their case. In the Supreme Court, every case really is different, and our deep institutional knowledge allows us to craft the right strategy for each client. Sometimes that means persuading the Department of Justice to weigh in in our favor, like in Torres, where we successfully urged the Trump Administration to participate as amicus in support of an originalist interpretation of the Fourth Amendment that protects victims of police brutality. Other times, as in Kirtsaeng, it is persuading a justice to reverse their vote from an earlier case, thereby saving the multi-billion-dollar market for imported copyright goods in a presentation that, according to one media outlet, “well might be the rare case of a victory at oral argument.” Similarly, our success in Vogt turned in part on the decision to suggest during argument that the Court dismiss the case as improvidently granted, which it ultimately did.
As part of our group’s stated commitment to racial and social justice, we have provided valuable amicus support in many of the most important civil rights cases of recent terms. We filed an amicus brief on behalf of 59 civil rights organizations in Bostock v. Clayton County, in which the Supreme Court issued a landmark decision strengthening protections for LGBTQ employees against workplace discrimination. The Supreme Court recently preserved the Deferred Action for Childhood Arrivals (DACA) program, protecting immigrants who entered the U.S. as children. And in this case, we made a double impact—we filed a brief on behalf of Apple and its CEO Tim Cook, emphasizing the program’s importance to the company, its culture of innovation, and the 478 Dreamers who work there, and another on behalf of 36 leading children’s advocacy organizations and child health and development experts. We also filed an influential amicus brief on behalf of former officials of the U.S. Customs and Border Protection Agency in support of Jesus Hernandez, a 15-year-old Mexican national who was shot and killed by a U.S. Border Patrol Agent on the Mexican side of the border, in Hernandez v Mesa.