Roman Martinez and Prof. Stewart Schwab speak at the Federalist Society on Wednesday.

Anne Charles / Sun Staff Photographer

Roman Martinez and Prof. Stewart Schwab speak at the Federalist Society on Wednesday.

November 8, 2017

Former Supreme Court Law Clerks Spotlight Legal Questions in Trump’s America

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Since the election of President Donald Trump, public attention has appeared to be focused on the executive branch.

But, on the eve of the New York State elections 2017 on Tuesday, Prof. Stewart Schwab, law, and Washington D.C.-based law partner Roman Martinez highlighted the role of the often-overlooked but undeniably powerful branch: the Supreme Court.

“It’s a very exciting time to be practicing Supreme Court litigation. The docket is jam-packed with big cases. It’s the rookie season for Justice Gorsuch, [and] some people think it may be the swan song of Justice Kennedy,” Martinez said. Martinez is a partner at a D.C. firm that largely handles Supreme Court and U.S. Court of Appeals cases.

In 2009, Martinez served as a law clerk to Chief Justice John Roberts. The clerkship was hard work, he said, but also an essential experience. He outlined the mathematics of the thorough and complicated case selection process.

“Each year the Supreme Court gets about 6,500 to 7,500 petitions for certiorari,” Martinez said, referring to the writs or order by which the Supreme Court reviews the decision of a lower court. “There are nine justices, so there’s no way they’re going to be able to pour through each one. That is why they have you, their trusty law clerk.”

The clerks are each given cases to evaluate and write memos in order to convince the justices to hear the case. However, in the end, the chances of a specific case making it into the docket are slimmer than Cornell’s undergraduate admissions rate.

“Each year, out of the 6,500 to 7,500 petitions that come in, the court ends up granting somewhere between 65 to 70 petitions.” Martinez said. “I’m not a math major, but your chances are low.” The Supreme Court accepts as low as less than one percent of its incoming cases, according to Martinez’s figures.

Martinez outlined several legal issues that will be prominent in cases of the near future.

First, the consequences of Trump’s disruptive legal decisions maybe interesting to observe, he said. The Supreme Court will be deciding on cases pertaining to the immigration travel ban and his actions against sanctuary cities.

The “intersection between freedom of speech, freedom of religion and anti-discrimination law,” such as the highly publicized Colorado Masterpiece Cakeshop refusal to bake for a same-sex wedding, is another pertinent topic to be deliberated soon by the Supreme Court.

Schwab, on the other hand, served under Justice Sandra Day O’Connor during her second year. He described her as a “tremendous mentor” and recounting the intense scrutiny that she faced as the first woman on the bench. “The entire United States, if not the world was watching ‘what is this woman going to do?’” he said.

Martinez also recalled a high-stakes atmosphere, but maintained that the justices performed exceptionally under this pressure.

“All of the justices across the board are super engaged, super smart, super committed to getting the right answers on all the cases. They often disagree with each other, of course, but they’ve learned how to disagree with each other without being disagreeable.” Martinez said.

“It’s really an institution that all Americans should be proud of.”