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In House May be First GC to Argue Orphaned Supreme Court Case

By Jason Beahm on December 30, 2010 5:47 AM

Who brings a dead argument back to life?

On occasion, the parties to a U.S. Supreme Court case will abandon their own positions, which results in a so-called "Orphan Position." In such a situation, the U.S. Supreme Court appoints an attorney to argue on behalf of the position. To date, 42 different attorneys have been selected over the years to make such arguments. However, only one has been an in-house counsel: Adam Ciongoli, The New York Times reports.

Ciongoli is a former clerk for Justice Samuel A. Alito and the general counsel of Willis Group Holdings.

Earlier this month, Ciongoli argued to defend an 8th U.S. Circuit Court of Appeals sentencing decision. Ciongoli said being asked to make the argument was "an incredible honor and not something you say no to." Ciongoli's position was an orphan position originally held by the government, but it had later abandoned it. The case involved a ruling by the 8th Circuit that efforts by a defendant to rehabilitate himself after his initial sentence (later reversed on appeal) do not count at re-sentencing.

The phenomena of the orphan position is an interesting legal situation because it seems to fall outside of the concept of the adversarial system. According to The New York Times, "it raises questions about whether the court is engaged in a kind of judicial activism in shaping the case before it." That is because the system usually has the parties decide which positions to argue and courts only decide upon actual cases and controversies.

So in the end, how did Ciongoli do? Well enough to get a thank you from Chief Justice Roberts, who said that he "ably discharged your responsibility." The compliment "took me a little by surprise," Ciongoli said.

Now it's back to work for Ciongoli at Willis Group Holdings. He found it quite an honor to argue before the Supreme Court, but was paid only in prestige. Unfortunately prestige alone doesn't keep the lights on.

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