Supreme advocate: Menlo Park's Jeff Fisher has argued 31 times before U.S. Supreme Court | March 15, 2017 | Almanac | Almanac Online |

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Cover Story - March 15, 2017

Supreme advocate: Menlo Park's Jeff Fisher has argued 31 times before U.S. Supreme Court

by Kate Bradshaw

Before the Supreme Court's current Chief Justice John Roberts was a judge, he argued cases before the Supreme Court. According to Menlo Park resident Jeffrey L. Fisher, Justice Roberts once told a colleague that the night before every argument, he would ask himself: "Why do I do this to myself?"

Afterward, he would ask, "When do I get to do it again?"

"That's probably an accurate description of how I feel too," said Mr. Fisher, 46 and a co-director of Stanford University's Supreme Court Litigation Clinic, referring to the emotional about-face that comes before and after practicing law in the nation's highest court.

He should know.

He's argued before the Supreme Court 31 times since 2004, and is scheduled to add to that number on March 21 when he is due back before the high court.

As part of Stanford's clinic, Mr. Fisher instructs and works with Stanford Law students to take on pro bono cases that could become candidates to be heard by the Supreme Court.

According to its website, the clinic has a higher rate of convincing the Supreme Court to take on its cases than any law firm or public interest office in the country.

Mr. Fisher has petitioned, briefed, argued and in many instances, won cases before the court on a wide range of the nation's toughest legal questions.

For instance, he was co-counsel for the Kentucky and Oklahoma plaintiffs in marriage equality litigation, drafting more than 100 pages of briefs arguing for the rights of gay and lesbian people to marry on equal terms as heterosexual couples.

He argued on behalf of the plaintiff in Riley v. California (2014), which resulted in a unanimous decision by the court that the Fourth Amendment prohibits police officers from searching without a warrant cell phones that have been taken from people who are arrested.

Most recently, he learned on March 6 that he had won yet another case: Pena Rodriguez v. Colorado. The court ruled 5-3 that courts must order a verdict review if it is shown that one or more jurors made racially biased statements about a defendant during jury deliberations.

To prepare for each case, he said, he usually does two or three practice arguments with a "moot" or mock court, and spends several days preparing in Washington, D.C., beforehand.

Mr. Fisher grew up in Kansas City, and played basketball and tennis through high school. He compared the anxiety of a trip to the Supreme Court to the stress he used to feel before a game. The nerves are at their peak before the event starts, but after things begin, the anxiety settles down.

Speaking before the justices, he said, is "not for the faint of heart." The attorney has to be prepared to answer any question the justices might have, and try to weave in an argument between questions.

"It's not a presidential debate, where you can ignore the question or filibuster. If you give a sentence or two that's not answering the question, they will immediately cut you off and force you to answer," he said.

Mr. Fisher quoted Alexis de Tocqueville, a Frenchman who visited the U.S. shortly after it was founded. He observed, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one."

Mr. Fisher said he enjoys immersing himself in, and encouraging his students to grapple with, those challenging judicial questions.

Among the recent questions his cases have raised is: How much funding should school districts be required to provide for children with special needs? (Mr. Fisher presented oral arguments on that case, Endrew F. v. Douglas County School District, on Jan. 11.)

Another case he plans to take on with his students will ask: should police be allowed greater leeway to stop and frisk people in states where it's legally permissible to carry a gun?

On the current court, he said, there seems to be a growing interest in reviewing cases involving race (both in terms of discrimination, and the constitutionality of affirmative action programs in education), as well as religion and business interests, particularly intellectual property, he said.

While it might sound like an added burden to have to teach fledgling lawyers while also preparing arguments for the nation's top court, Mr. Fisher said that in reality, the law students he works with make real contributions to the cases they work on together.

"A lot of the law is technical, but a lot of the law is just insight, common sense and practical problem solving — and 20 and 30 year olds can do that quite well sometimes," he said.

Teaching Stanford Law School students is a task that's become a family affair. Mr. Fisher's wife, Lisa Douglass, also teaches at the law school. She worked as a public defender in Seattle before the family moved to Menlo Park in 2006, and in 2007, she started Stanford's Social Security Disability Project. The initiative teaches law students how to help eligible people, many of whom are homeless or formerly homeless, to secure disability payments through Social Security. The organization works with clients at Palo Alto's Opportunity Center and Menlo Park's LifeMoves, which provide homeless services.

There is significant local need for the program, she said in an interview. Since 2007, the project has helped 300 people gain access to Social Security disability benefits.

Many clients are eligible for benefits because they suffer from mental illness, developmental disabilities or cognitive impairment due to head injuries, she said. The project currently has about 100 clients, and appointments for new clients are booked through April.

Ms. Douglass doesn't think of her job as being less glamorous than her husband's, she said. At the law school, she said, one thing faculty often talk to students about is finding what they enjoy doing on a day-to-day basis within the world of legal practice. For her personally, she said, she finds it most satisfying to spend her days providing legal support to high-need individuals in crisis.

Shying away from accolades, she said about herself and her partner: "We're just lawyers," she said with a laugh. "We can't always fix everything."

The couple has two daughters who are in fifth and eighth grade at Oak Knoll Elementary School and Hillview Middle School. On weekends, the family stays busy playing youth sports, going to the beach or Tahoe, and hiking new trails.

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