The Supreme Court on Tuesday appointed two outside attorneys to defend the lower-court decisions in two cases in which the federal government has declined to do so. In a brief order on Tuesday afternoon, the justices tapped Michael Huston to argue in Parrish v. United States, which they added to their docket for the 2024-25 term on Jan. 17, and Christopher Mills to argue in Martin v. United States, which they granted on Monday afternoon. Both cases will likely be argued in April, with a decision to follow by late June or early July.
In Parrish, the justices agreed to decide a procedural question relating to the appellate process – specifically, whether a litigant who files a notice of appeal after the time to do so has expired must also file a second notice when the time to appeal is reopened.
The federal government had urged the justices to deny review, telling them (among other things) that the question rarely comes up and is unlikely to make any real difference even in those cases. But, then-U.S. Solicitor General Elizabeth Prelogar conceded, the decision by the U.S. Court of Appeals for the 4th Circuit was “incorrect.”
When the federal government opts not to defend a lower court’s decision but the Supreme Court grants review, the justices often (although not always) select a lawyer who served as a clerk for the justice responsible for the judicial circuit from which the case hails. Huston, who is the co-chair of the appellate group at the Perkins Coie law firm, clerked for Chief Justice John Roberts, the circuit justice for the 4th Circuit. Before going into private practice, Huston served as an assistant to the U.S. solicitor general, arguing nine cases at the Supreme Court.
In Martin, the justices took up a pair of questions arising from a lawsuit brought by a Georgia family whose home was mistakenly raided by an FBI SWAT team. The federal government agreed with the family that the U.S. Court of Appeals for the 11th Circuit’s “reasoning for rejecting” their claims for false imprisonment and assault and battery “differs from the approach of other circuits.” But here too, the federal government insisted, that “disagreement did not affect” the outcome of the case, and it urged the court to deny review.
One day after granting review, the justices appointed Mills to brief and argue the question related to the false imprisonment and assault and battery claims. Mills is the founder of (and apparently only lawyer at) Spero Law LLC, a Charleston-based firm. He also served as a fellow at the Becket Fund for Religious Liberty, a non-profit law firm that frequently litigates cases relating to religious liberty at the court, and clerked for Justice Clarence Thomas. Mills has not previously argued at the Supreme Court.
As law professor Katherine Shaw has documented, the practice of appointing a lawyer as a “friend of the court” to brief and argue in support of the judgment below happens approximately once every term. But assuming that both cases are argued this term, Huston and Mills will not be the first lawyers to appear in that capacity during the 2024-25 term. In January, Michael McGinley, a partner at the Dechert firm and a former clerk to Justice Samuel Alito, defended a ruling by the U.S. Court of Appeals for the 5th Circuit in Hewitt v. United States. It was the first argument at the Supreme Court for McGinley, who served as associate counsel to the president during the first Trump administration.
This post is also published on SCOTUSblog.
