Case Spotlight

Supreme Court

“Sidley’s Supreme Court Pro Bono Program has been representing clients for many years. We are committed to pro bono at the highest level, and our presence in the Supreme Court is well reflected in our body of work. We are proud that our work has resulted in precedent-setting decisions and made a lasting impact on our clients.”
— Jeffrey T. Green, Pro Bono Committee Chair and Founder of Sidley's Supreme Court Pro Bono Program

Northwestern Supreme Court Clinic

Sidley’s partnership with Northwestern University’s Pritzker School of Law gives students the opportunity to work on cases pending before the Supreme Court. Second and third-year law students are supervised by Sidley lawyers in researching and drafting briefs in cases at the petition stage and on the merits. The students also monitor lower court decisions to identify potential candidates for petitions for writs of certiorari. Sidley partners Carter Phillips and Jeffrey Green serve as the Northwestern Supreme Court Clinic’s directors, along with Northwestern Professor Xiao Wang, Sidley associate Meredith McBride, and Sidley project assistants Maggie Bahnson and Kelsey Handschuh.

In 2022, the Clinic filed 13 petitions for a writ of certiorari, two reply briefs at the petition stage, and three amicus briefs on a range of issues detailed below. Students also contributed to briefing and oral argument preparation in one case on the merits, Golan v. Saada. The questions presented in the students’ petitions were:

Timothy J. Smith v. United States (No. 21-1576): Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the Fifth and Eighth Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held.

Arizona, et al. v. Alejandro Mayorkas (No. 22-592): Whether the State applicants may intervene to challenge the District Court’s summary judgment order.

United States v. Helaman Hansen (No. 22-179): Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Thompson v. Dewine (No. 21-1120): 1. Whether ever-changing and ongoing government-issued COVID-19 restrictions moot First Amendment challenges to ballot access restrictions. 2. Whether and how the First Amendment applies to regulations that impede a person’s ability to place an initiative on the ballot.

Von Taylor v. United States (No. 21-7329): Does a federal court violate principles of federalism and comity enshrined in the Tenth Amendment by selecting one possible interpretation of an ambiguous substantive state law rather than certifying a question to the highest court of the state?

Henderson v. United States (No. 21-7391): Whether “controlled substance[s]” in the Federal Sentencing Guidelines§ 4B1.2(b) are limited to those substances defined and regulated under the federal Controlled Substances Act, 21 U.S.C. § 801 et seq.

Calderon v. United States (No. 21-7309): 1. Whether district courts, serving as Daubert/Kumho Tire gatekeepers, have a duty to assess the reliability of law enforcement officers testifying as experience-based experts, rather than rely on their qualifications alone, before allowing them the wide latitude afforded to experts testifying to a jury? 2. Whether Congress violated the Commerce Clause and the Tenth Amendment when it criminalized purely intrastate drug transactions on the basis that at some historic point, those drugs had crossed state lines?

Moshrefi v. United States (No. 21-7468): Whether the Fifth Amendment protects an individual who invokes her privilege against self-incrimination during pre-arrest, non-custodial questioning by police officers.

Wortham v. United States (No. 21-7703): When a law enforcement officer’s purportedly biographical question to a suspect is reasonably likely to elicit an incriminating response, does it nonetheless fall under Miranda’s booking exception?

Hunter v. United States (No. 21-7700): May a district court consider — among other factors and on an individual, case-by-case basis — nonretroactive changes in sentencing law as a possible “extraordinary and compelling” reason warranting a sentence reduction?

McGill v. Shinn (No. 22-5073): The Ex Post Facto Clause prohibits retroactive increases in criminal punishment. When Mr. McGill committed the crime for which he was convicted, Arizona law did not allow the State to sentence him to death. Instead, the State sentenced him to death under a provision enacted after the crime occurred. Did the Ninth Circuit err in holding that Arizona did not violate the Ex Post Facto Clause by sentencing Mr. McGill to death under the later-enacted statute simply because that statute could be characterized as “procedural?”

Womack v. United States (No. 22-5892): When a state statute is facially broader than its federal counterpart, must a defendant still offer examples of overbroad state prosecutions to confirm the statute’s scope?

Miclaus v. United States (No. 21-8129): Did the Sixth Circuit err in holding that “trafficking” a means of identification does not also constitute “transferring” such identification under Sentencing Guidelines § 2B1.6 Application Note 2’s prohibition on additional enhancement contrary to the Sentencing Guidelines and five other courts of appeal?

Rodriguez v. United States (No. 22-6145): Whether the Ninth Circuit incorrectly applied Arizona law in finding that multiple instances of prosecutorial misconduct, including falsely representing key evidence, commenting on the defendant’s silence, vouching evidence not admitted at trial, and misstating the law, did not prejudice petitioner under Strickland v. Washington.

Alvarez v. New York (No. 22-6350): Must a client object in open court to invoke their Sixth Amendment right to maintain actual innocence as the objective of their defense?

Brown v. United States (No. 22-6389): Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

Santos v. United States (No. 21-1418): 1. If a physician’s good faith is a complete defense to a prosecution for prescribing controlled substances without a legitimate medical purpose or outside the usual course of professional practice 21 U.S.C. § 841(a)(1), as this Court may hold in Ruan v. United States, No. 20-1410 (oral argument convened Mar. 3, 2022), may an expert provide incorrect legal opinion testimony that the test is purely objective? 2. At sentencing, may district courts find relevant conduct that has a wag-the-dog effect on the guidelines calculation by using a mere preponderance-of evidence standard (as four circuits have held), or must they instead apply a clear-and-convincing-evidence standard (as one circuit has held)?

Barrieta-Barrera v. United States (No. 21-8229): Section 1326(b)(2) of Title 8 provides an elevated penalty for illegally re-entering the country following an “aggravated felony.” Does a district court’s finding that the defendant should be punished under Subsection (b)(2) bind future decision-makers on the question of whether he has ever been convicted of an “aggravated felony”?

Golan v. Saada (No. 20-1034): Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.