Jenner & Block Supreme Court and Appellate Clinic - Significant Achievements for 2022-23

The Jenner & Block Supreme Court and Appellate Clinic represented clients in several significant cases in the US Supreme Court this academic year. The Clinic’s students did important work on each of these cases—from researching legal issues, to assessing potential arguments, to developing case strategy, to drafting and editing briefs.

US Supreme Court Merits Cases

Indian Child Welfare Act Cases: Haaland v. Brackeen; Cherokee Nation v. Brackeen; Texas v. Haaland; Brackeen v. Haaland (Supreme Court Case Nos. 21-376, 21-377, 21-378, 21-380).

The Clinic was co-counsel for tribal respondents in the important US Supreme Court cases upholding the constitutionality of the federal Indian Child Welfare Act. In a 7-2 opinion, the Supreme Court rejected the petitioners’ many constitutional challenges to ICWA. The Clinic represented Respondents Cherokee Nation, Oneida Nation, and Morongo Band of Mission Indians in the Supreme Court.

ICWA is a federal statute that was passed in 1978 to protect Indian children. As Justice Gorsuch explained in his concurring opinion in these cases:

The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw. This is the story of ICWA.

Eventually, Congress could ignore the problem no longer. In 1978, it responded with the Indian Child Welfare Act. 92 Stat. 3096. The statute’s findings show that Congress was acutely aware of the scope of the crisis. “[A]n alarmingly high percentage of Indian families,” Congress observed, were being “broken up by the removal, often unwarranted, of their children from them by nontribal [state] public and private agencies.” 25 U. S. C. §1901(4). And “an alarmingly high percentage of such children” were “placed in non-Indian foster and adoptive homes and institutions.” Ibid. Removal at that scale threatened the “continued existence and integrity of Indian [T]ribes.” §1901(3).

The statute Congress settled upon contains various provisions aimed at addressing this crisis. At bottom, though, the law’s operation is simple. It installs substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life.

In these Supreme Court cases, petitioners challenged ICWA as unconstitutional on multiple grounds. They asserted that Congress lacks authority to enact ICWA. They argued that several of ICWA’s requirements violate the anti-commandeering principle of the Tenth Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged §1915(c)—the provision that allows tribes to alter the prioritization order—on the ground that it violates the non-delegation doctrine.

 In a 7-2 decision, the Supreme Court rejected all of petitioners’ challenges to ICWA. As the majority opinion, authored by Justice Barrett, put it: “The issues are complicated—so for the details, read on. But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” Justice Gorsuch wrote a separate concurrence that further explains the important considerations in this case—from protecting Indian children, to safeguarding tribal sovereignty. The decision upholding ICWA was a very important victory for Indian children, families, and tribes.

The Clinic’s students did outstanding work on these cases. The Clinic’s students analyzed some of the petitioner’s arguments, worked through strategy considerations, researched potential arguments, and did drafting work on the tribal respondents’ Supreme Court merits brief. The students’ work was all in collaboration with and under the supervision of the Clinic’s faculty members.

The Clinic was honored to be part of the team of lawyers representing tribal respondents in the Supreme Court. That team was led by the clinic’s partners at Jenner & Block, including Keith Harper and Ian Gershengorn, who argued the case in the Supreme Court.

US Supreme Court Amicus Briefs

Perez v. Sturgis Public Schools (Supreme Court Case No. 21-887).

At issue in this case was the extent to which children with disabilities must exhaust administrative procedures under the Individuals with Disabilities in Education Act before seeking relief under other federal antidiscrimination statutes, such as the Americans with Disabilities Act. The Clinic co-authored an amicus brief on behalf of Senator Tom Harkin, Representative Tony Coelho, and Representative George Miller—all former Members of Congress who championed the rights of individuals with disabilities throughout their careers. The amicus brief explained that in passing the IDEA, Congress intended to ensure that students with disabilities and their families could enforce all of the rights and obtain all of the remedies available to them under the Constitution and the federal laws protecting students with disabilities. It further explained that both the plain language and legislative history of the IDEA make clear that its exhaustion requirements were narrow ones—and did not require exhaustion when the relief sought was unavailable under the IDEA. In a unanimous opinion by Justice Gorsuch, the Supreme Court agreed with the position taken by the Clinic and the amici, holding that the IDEA does not require exhaustion when the remedy sought is not one the IDEA provides.

Pugin v. Garland; Garland v. Cordero-Garcia (Supreme Court Case Nos. 22-23 and 22-331).

Federal law provides that noncitizens are removable from the United States if convicted of an “aggravated felony,” defined to include an offense “relating to obstruction of justice.” See 8 U.S.C. § 1101(a)(43)(S). At issue in these cases was whether “relating to obstruction of justice” requires some nexus to some pending investigation or proceeding. The Clinic co-authored an amicus brief on behalf of the National Immigration Justice Center, National Immigration Project, and Capital Area Immigrants’ Rights Coalition. The amicus brief explained that the government’s broad reading of this statute would expand this category of “aggravated felonies” to include a wide range of conduct that is not obstruction of justice, not aggravated, and not a felony. In a 6-3 opinion authored by Justice Kavanaugh, the Supreme Court held that an offense may “relate to obstruction of justice” for purposes of this statute even if the offense does not require that an investigation or proceeding be pending.

Justice Sotomayor’s dissenting opinion explained that this broad reading of the statute “opens the door for the Government to argue that many low-level offenses that fall outside of core obstruction of justice are ‘aggravated’ felonies, even though the INA reserves that label for ‘especially egregious felonies.’” Justice Sotomayor’s dissent cited the amicus brief on which the Clinic worked. See Slip Op. at 17-18 (“For example, misdemeanor convictions for failing to report a crime, presenting false identification to an officer, refusing to aid a police officer, leaving the scene of a crime, or purchasing a fake ID could be taken to count as ‘relating to obstruction of justice.’ See Brief for National Immigrant Justice Center et al. as Amici Curiae 10–25 (collecting offenses).”).

United States v. Hansen (Supreme Court Case No. 22-179).

At issue in this case was a federal law that prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U.S.C. §1324(a)(1)(A)(iv). The Ninth Circuit held that the statute criminalizes immigration advocacy and other protected speech, and thus held that the statute is unconstitutionally overbroad under First Amendment. The Supreme Court granted certiorari to review that decision.

The Clinic represented amici religious and religiously affiliated organizations that provide charitable services to undocumented immigrants as a core part of their faith. Their amicus brief explained that this statute required religious organizations to either turn away those in need based on immigration status, cease to perform certain charity and advocacy work entirely, or face the realistic possibility of criminal prosecution. In a 7-2 decision authored by Justice Barrett, the Supreme Court held that the statute forbids only the intentional solicitation or facilitation of certain unlawful acts—and thus does not violate the First Amendment. Justice Jackson’s dissent cited the amicus brief on which the Clinic worked, for the proposition that this statute can plainly chill speech even in the absence of a formal investigation or prosecution. See Slip Op. at 20-21.

The Clinic students who worked on these cases included Class of 2022 students Anna Boardman, Wilson Boardman, Ryne Cannon, Jay Clayton, Becca Hansen, Crofton Kelly, Jacob Mitchell, Lazaro Donis Munoz, Jeff Murphy, Samantha Sherman, Carolina Veniero, and Henry Walter; Class of 2023 students Tomas Villafana Arriaga, Avery Broome, Joseph Downey, Simmy Engelen, Bryan Gray, Alex Hall, Ian Howard, Narayan Narasimhan, Alex Petrillo, Adam Rowe, Charles Tammons Jr., and Erik Ubel; and Class of 2024 students Rachel Abrams and Alex Newman. The students’ work on these cases was in collaboration with and supervised by Clinic faculty members David Strauss and Sarah Konsky, both from the Law School, and Matt Hellman, from Jenner & Block.