Professor Wang Talks SCOTUS Arguments, Clinic’s Future

Professor Xiao Wang (B.A. ’08, M.P.P. ’09) joined the Law School in July 2023 to head the Supreme Court Litigation Clinic. This past year, the Court granted two of the Clinic’s petitions for certiorari—a win that has kept Wang and the Clinic’s students working around the clock for the past several months.

Professor Wang argued the two cases, Cunningham v. Cornell University and Ames v. Ohio Department of Youth Services, just months ago, marking his first two oral arguments in the Supreme Court. Back from his stint at One First Street, Professor Wang kindly agreed to an interview with the Law Weekly to discuss the Clinic’s work and its future.

When our esteemed Editor-in-Chief Emeritus, Nikolai Morse ’24, interviewed you last year, you had just started as the new SCOTUS Clinic director, and you talked to us about your plans to get the clinic before the Court. Now, a year later, the clinic got two cert grants this term. How does it feel to see these results so quickly?

So incredibly fortunate. It’s an amazing reflection of the students and staff here. They’re all so hard-working. It was largely the students from my first year who worked on the cert petitions for these cases, but obviously there’s been continuity with me and with our staff, including our wonderful assistants, Billi Jo Morningstar and Cindy Derrick. The students are all really fantastic, and it’s been a success in terms of appearing before the court, getting them great experiences, and learning a ton.

I personally am pretty tired. It takes a lot out of you. I marvel at someone like Ed Kneedler [’74] because I put in so much effort and time this semester, and he’ll do three or four [Supreme Court arguments] in a year. Sometimes it’s a little different because some of his arguments will be for the United States as amicus, so he’ll do ten minutes instead of twenty or thirty-minute arguments. But it’s still ten super high-pressure minutes. And often, with the way the Court holds arguments these days, it goes much longer than that!

You had argued in federal circuit courts before, right? How is that different from the Supreme Court, and how did you prepare differently?

It’s different because there are fewer people in the circuit courts, unless you’re appearing before an en banc court. And in the Supreme Court, you can sort of glean, based on what they’ve written before, where their questions might come from. You might think, for instance, that someone like Justice Thomas or Justice Gorsuch will be interested in a textualist perspective on whatever issue is before them.

The circuit courts are a terrific preview of appellate advocacy, but I think once you get a Supreme Court merits case, you’re going ten or twenty times deeper into everything. Everything’s got to be right. If you overlook something, your opposing side will figure it out, the U.S. government will figure it out, the justices and their law clerks will figure it out, the amici will figure it out. Even one of the judges at one of our moots pointed out what they thought was a misread of a case we cited from 1875!  It’s just a different level of intensity. I probably did four or five moots for these arguments, and usually, for circuit court arguments, I’ll probably do one, maybe two.

Hopefully, preparation will get better with time as I get more comfortable. But I think no matter how many times you’ve argued before for the Court, it’s probably a good thing to be a little bit scared so that you’re preparing.

The Clinic’s two cases are Cunningham v. Cornell University and Ames v. Ohio Department of Youth Services. Could you explain what they’re about?

Cunningham v. Cornell involves ERISA [the Employee Retirement Income Security Act], which is a federal retirement benefits statute. The statute defines what a prohibited transaction is and also defines what a prohibited transaction isn’t. And the main question is: which side needs to plead and prove the various elements of the statute? It’s very technical, but hugely impactful, in the sense that everyone has a retirement plan, and whether a plaintiff needs to prove this, or a defendant needs to prove—that could mean, in practice, that hundreds of dollars are at stake for every person’s retirement plan depending on who prevails in our case.

The Ames case is about a woman who alleges that she was subject to discrimination on the basis of sexual orientation because she was heterosexual, and she was passed over for a promotion in favor of an LGBT individual and was later demoted and replaced by a different LGBT employee. Neither LGBT individual applied or interviewed for the job and, according to the EEOC, one LGBT individual was objectively less qualified than Ms. Ames. What prevented Ames’s claim from going forward is something known as the “background circumstances requirement.” About a third of federal courts apply this requirement, which says that if you’re a member of a majority group, in addition to everything else under Title VII, you need to show more—and sometimes a lot more—to get past the first step at summary judgment.

We challenge it and say that it’s inconsistent, because the text doesn’t say anything about background circumstances, the case law is inconsistent with that understanding, and we don’t think it’s workable because it’s really hard to figure out who’s in the majority and who’s not in the majority.

I would be remiss if I didn’t mention that the Appellate Litigation Clinic had another case, a prison litigation case before the Supreme Court [Perttu v. Richards]. It was argued the day before Ames by Lori McGill, who’s a lecturer with the Appellate Clinic, with her and Professor Scott Ballenger [’96] leading the team on that one. They—unsurprisingly—did a superb job. All three cases are still pending.

We’ll be eagerly waiting to see the results. Do you have any advice for students interested in the Clinic’s work and case selection?

I think the first is to always ask. I want to be an open door for all students. But there’s also a way to ask. I can’t really answer questions about an active case through an online open letter. Being able to have those conversations [in-person], I’m totally open to them.

I’m happy to do a coffee chat to talk about the Clinic, how you can get involved in appellate work, why we do the work we do. It’s just—given the sensitivities of our casework and the fact that we’re in active litigation, it just makes better sense to have these conversations in person rather than in some online back and forth.

I’m always open to talking to folks and giving them advice. In the end, everyone’s journey into the appellate world looks sort of different. The only other person from my [graduating class in] law school who’s argued before the Court—his journey was: clerk on the Supreme Court for Justice Alito, work at Jones Day, and then become Solicitor General for Georgia.

About the political environment…. One highly visible bit of legal news lately has been the Trump administration’s targeting of certain law firms and universities. Do you think that will affect the kind of cases the Clinic takes on?

All clinics have to think about that. For instance, we have an environmental law clinic, and the Trump administration is trying to set environmental law policy in a different direction. So, one has to always think about it.

There’s probably still a core number of disputes that are just things that need to get resolved, regardless of administration. To pick an easy example, people just need to know what they can and can’t do with their retirement plans. I think that many of the cases before the Court are still like that today, and I’m hopeful that we can stay competitive in the marketplace.

I don’t think—given the fact we’re a law school, and we have to take cases according to our student resources, our faculty resources, our time—we’re probably not going to be the counsel of record on, say, hot-button emergency cases like birthright citizenship, even though it’s an issue that I care about, and I think that the executive order is wrong. I understand why the individual plaintiffs would probably go to the ACLU, or a law firm, or some place that can be both always on-call (without exam and summer/winter breaks) and part of an organization that identifies strongly with a particular cause. But I don’t know how much of the Supreme Court’s docket this sort of emergency litigation will take up.

Last time we interviewed you, you mentioned wanting to work with state solicitors general and law firms to get more arguments before the Court. Those two groups have been quite busy lately. Are you seeing new opportunities there?

One thing that I’m really happy about is that once you get your name out there, more people come to you. One case that we have right now is a question about mootness and standing in the voting rights context.[1] I think it’s got a decent shot of getting granted; the Supreme Court’s already called for a response from the other side.

We got that case because someone reached out to me and said, “I heard you guys are doing really great work, and I’d love for you to represent me and my clients before the Supreme Court.” If we get all our cases that way, it will save a lot of stress in my life. And then maybe I can have more hobbies.

But we’re always trying to figure out different ways to find cases. I’ve been working with the library to see if we can use machine learning to help figure things out. But so much of it will always come down to hard work—getting up super early, reading what cases have been decided, seeing what cases might be a good fit for UVA. There’s really no shortcut for that.

The first time I met you, you were giving a talk at the Batten School about the use of state constitutional referendums in response to unpopular Supreme Court opinions. That research could be understood to be critical of judicial supremacy at a time when the Supreme Court is under increased public scrutiny. Do you worry at all about how your research could affect your work as a Supreme Court advocate?

That paper hasn’t been published yet, and I was co-authoring it with one of my former students at Northwestern. We’re still tweaking it. But what I was trying to say in that paper is: these decisions, according to polls, have been unpopular. What is the best response to it? Is it through legislative action, or is it through direct democracy? I’m trying not to cast a normative judgment on whether the judicial decisions themselves are right. Instead, let’s accept that the polls are correct, that most people are disappointed with these decisions. What’s the response for our system?

I understand that sometimes that’s a fine line to walk. There are times when I’ve thought about how to balance that. I would say I’m a Supreme Court litigator first and an academic second. I don’t know of anything that I’ve written that is directly critical of the Court as an institution. I believe [the Justices] can appreciate the difference between descriptive research and institutional criticism of the Court.  And to be candid, I just don’t agree with broadside attacks against the Court.

I have a few other academic pieces coming out. One is about criminal law, popular fiction, and prison abolition. I’m pretty sure these issues will not come before the Supreme Court soon; it’s definitely a more theoretical take. I have another piece that’s coming out about how appellate clinics perform. So, not necessarily tied to the Supreme Court. And finally, I have a third piece coming out about some of the Supreme Court’s religion cases that builds on my prior research.

Do you see any potential for the Law School to expand the SCOTUS Clinic, given its recent successes?

I hope so, that would be fantastic. That’s something that is a little bit out of my control, but I’d hope so. Now that I’ve lived through it, I know how much work it takes. Sometimes in the last couple of months, I’ve thought, “God, I feel like it might be a little bit less stressful to just write law review articles.”

[1] The case is Meadors v. Erie Cnty. Bd. of Elections, www.scotusblog.com/case-files/cases/meadors-v-erie-county-board-of-elections.