I never knew such a thing existed, until now.  Via Doug Berman, from Tony Mauro at Legal Times, here’s the setup:  What happens when cert is granted and a case is headed up to the big bench, but both sides have agreed that the decision appealed is wrong?  In other words, no one wants to defend the circuit?

Answer:  Someone from the Supremes calls up a former law clerk and asks if they would take on the “orphaned” decision. 

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.  Alito’s request: Would Jorgensen have time to argue a Supreme Court case in April — a case Jorgensen had never heard of — for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case.  So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

It had never occurred to me that a case would find its way to Washington and, between the circuit and the merits brief, would leave the decision below without a champion.  Go figure. 

My initial reaction was, if everyone agrees that the decision below was wrong, what becomes of the controversy?  But of course, it doesn’t mean that the sides agree on anything else, and it doesn’t mean that the reason for granting cert no longer requires the inclusion of argument in favor of affirmance lest the Supreme Court find its hands tied, it’s breadth limited, by this agreement between the parties.  SCOTUS isn’t saying it disagrees that the decision below is wrong, but that it wants to keep all its options open.

Apparently, this is the first time this has happened in 5 years, and now it’s happened twice in the same term.  What are the chances?  Well, they may actually be pretty good, given the sentencing decisions issued by the Supremes in the last term.  Great upheaval can do this to a circuit decision, and the lower decision may have been perfectly good law at the time, but things change.

So who does a Supreme Court justice call when he needs a friend?  Former law clerks, apparently.  After all, it’s not exactly a high paying gig.  In this case, former law clerks of Justice Alito (Jay Jorgensen) and Justice Thomas (Catholic University law professor Peter “Bo” Rutledge) have been tapped for the job.  But don’t feel too badly for them.  There is an upside:

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks.  Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

If they ever start a list of lawyers who would make themselves available to represent “orphan” decisions,  I’ll let you know.  But not until I put my own name on the list first.  Having never had the opportunity to argue before the Supremes, I think this is all very cool.

There is one particularly scary aspect to this unusual situation.  What if you represented the “orphaned” decision too well and won, undoing all the gains made?  Nah.