Q+A: Jeff Fisher, co-director of the Supreme Court Litigation Clinic

            Professor of Law Jeff Fisher is the co-director of the Law School’s Supreme Court Litigation Clinic and an expert on Supreme Court practice and criminal procedure. On April 17, Fisher argued Salinas v. Texas for petitioner Genovevo Salinas in front of the Court. The Daily sat down with Fisher to talk about Salinas, his legal career and the experience of presenting an argument to America’s highest judicial body.

 

The Stanford Daily (TSD): How did you first develop your interest in Supreme Court practice and criminal court procedure?

Jeff Fisher (JF): That’s a big question. I suppose through college and growing up, the same way I developed interest in the law: the importance of the way the law affects people’s lives. And the Supreme Court, of course, is one of the most important legal institutions in the country.

 

TSD: How many cases have you argued before the Court previously?

JF: Well, this is number 21.

 

TSD: How did you become involved with Salinas v. Texas?

JF: Through my work as co-director of the Stanford Supreme Court Litigation Clinic. What the clinic does is, we offer pro bono services in terms of student resources and faculty supervision to help people who have cases that are either in the Court or headed there, that don’t otherwise have the ability to pay for top-flight Supreme Court counsel.

We learned about the case after the highest court in Texas decided it. We called the local lawyers in Houston and offered our assistance to them, the client and his family, and they accepted it.

 

TSD: Can you talk about the basics of the case?

JF: The case is about the Fifth Amendment right not to be compelled to be a witness against yourself, which in common vernacular is the right to remain silent. And so the question in this case is whether somebody who’s asked by the police to do a voluntary interview before he’s under arrest has that same right to remain silent and is protected in legal proceedings the same way as somebody else who’s under arrest or already in the courtroom.

 

TSD: What is the precedent case law applicable here? Would your argument require an upheaval of that precedent?

JF: No, we don’t think it requires any significant change. You know, the reason the Supreme Court took the case, which is consistent with the reason they took most cases, is because the Supreme Court itself has never answered this particular question. And lower courts across the country — lower federal and state courts — are divided as to what the answer is.

 

TSD: You were presented with a lot of hypotheticals during the oral arguments. Were any of the hypotheticals presented by the judges surprising or unexpected?

JF: I don’t think this time we got any that were terribly surprising. When we’re developing our legal argument and then preparing to go to Washington and present it, we spent a lot of time in the clinic — the students and I — asking ourselves about all the different various implications of our position, and one way to test that out is to be conjuring up a lot of hypotheticals.

 

TSD: Which justice gave you the hardest time?

JF: It depends. They’re all incredibly smart and incredibly well-prepared. So, I don’t think there’s any particular justice I would single out. You know, when you’re doing a criminal case and representing a criminal defendant…people like, for example, Justice [Samuel] Alito, who was a former prosecutor [and] is not just incredibly smart but has a lot of personal experience in the system, can sometimes ask probing questions. But he was relatively quiet in this case, and many others asked questions. So I wouldn’t single anyone out, really.

 

TSD: Do you have any interesting anecdotes from the oral arguments?

JF: I think one moment that we hope is beneficial for us was when the lawyer representing the state of Texas was asked, “Well, if [you] prevail, won’t police officers tell people that they better not be silent, because otherwise that’s going to be used against them?”

He resisted that and said, “Oh, I don’t think they would do that. There’d be a problem if they did.”

I think he actually said it’d be coercive if they did. And so for us, that was a telling moment in the argument because the hypothetical is just an officer saying the law that they’re advocating, and if he’s not willing to defend it in practice, then one hopes you start to question the correctness of their position. But, we’ll see if it plays out that way or not.

 

<@CEBold>TSD: What will be the implications of the ruling for the criminal justice system?<@$p>

JF: I think it has the potential to be an incredibly important case, because, in our country, police conduct thousands of interviews a day of witnesses and suspects<\p>…<\p>who are not under arrest. And the ground rules for those interviews, and whether or not somebody has a sanctuary of silence, are enormously important both to individual rights and dignity, and to how cases will get prosecuted and how police will act in those interviews.

 

<@CEBold>TSD: Have you ever argued a case that you won or lost unanimously?<@$p>

JF: Yes and yes. The unanimous cases are easier to live with, because you sort of feel like, “Well, not much I could have done either way,” whether you win or lose.

It’s the 5-4 decisions that if you win, you’re thrilled with, and if you lose, you spend a lot of time with what-ifs.

 

<@CEBold>TSD: What kind of attitude do you have going into an oral argument?<@$p>

JF: You know, obviously part of you is nervous. Sure, I’m not as nervous as I was the first time, but it’s an intimidating setting and somewhat grand spectacle on some levels<\p>…<\p>part of you is just trying to deal with that.

But what I try to do is have as much fun with it as I can and be confident<\p>…<\p>and enjoy this amazing opportunity to interact with the country’s highest jurists<\p>…<\p>to hear what’s on their mind, what they’re concerned with, and to try to help them in a way.

It’s not every day that an ordinary person gets to go up before the highest officials in any branch of our government and have that kind of interaction. And so it’s kind of an incredible privilege.

 

<@CEBold>TSD: Do you ever try to tailor your argument to a particular justice?<@$p>

JF: Justice Brennan once said, “The most important rule in the Supreme Court is how to count to five.” So you try to get five of the nine justices to agree with you, and you spend a lot of time thinking about which individuals are more likely to be persuaded by your position, and how you might appeal to some justices who might not be as intuitively persuaded by it.

 

<@CEBold>TSD: And the decision comes out?<@$p>

JF: June, sometime in June.

 

<@CEItalic>This interview has been condensed and edited.<@$p>

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