It's a slow week at the Court, with no oral arguments or scheduled opinion announcements, so we're bringing you another installment of SCOTUS Ladies Q&A. This month, we sat down with Erin Murphy. She’s the Murphy in Clement & Murphy PLLC, a boutique Supreme Court and appellate firm that’s just a year and a half old but already racking up SCOTUS wins. If you aren’t already familiar with Erin, allow me to introduce her.
Erin is one of the leading Supreme Court and appellate advocates in the country. She has earned accolades such as National Law Journal’s “Litigation Trailblazer” and “Outstanding Woman Lawyer.” She’s litigated a wide variety of constitutional issues, but her specialty is cases involving the Constitution's structural protections of liberty (the best kind, IMHO). In her spare time (ha!), Erin teaches as an adjunct professor at her alma mater, Georgetown University Law Center. Before entering private practice, she clerked for Chief Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit and Chief Justice John Roberts and served as a Bristow Fellow in the Solicitor General’s office.
Without further ado, here’s our interview with Erin Murphy.
SCOTUS Ladies: What inspired you to become a lawyer?
Erin Murphy: I don’t come from a family full of lawyers, so I honestly didn’t know that much about what it is to be one before I decided to give it a try. But teachers were always telling me I should be a lawyer, probably because I had an annoying habit of insisting on arguing the other side of whatever they were trying to teach. Eventually I decided maybe they were right. But I didn’t come into law school with much of an idea of what I planned to do when I got out. Appellate practice just sort of found me.
SCOTUS Ladies: After law school, you clerked for Judge Sykes and Chief Justice Roberts; tell us about them. What has it been like appearing before your former boss for oral arguments?
Erin Murphy: They are both exceptional people. Brilliant jurists and extraordinary writers, of course, but what I admire most about them is how they approach the job with genuine humility, and with unfailing kindness to everyone around them. That’s an inspiring thing to see as an impressionable young lawyer.
Clerking for the Chief was also excellent practice for arguing before the Court. The Chief doesn’t do bench memos; you just come in and talk through cases with him. It’s a very intimidating experience, especially when we weren’t quite seeing eye-to-eye about something, as that would inevitably lead to what was essentially a mini oral argument. But at least now I know what to expect when the Chief starts to peer out over the top of his glasses with that increasingly skeptical look.
SCOTUS Ladies: You’ve worked with Paul Clement for several years. How did you first meet?
Erin Murphy: I first met Paul back when I was a Bristow Fellow in the Solicitor General’s Office during his final year as the SG. He returned to private practice shortly before I finished clerking at the Court the following year, so I joined him when I came out. We’ve been working together ever since, now 14 years across four firms.
SCOTUS Ladies: What’s the most important thing you’ve learned from him?
Erin Murphy: The most important thing I’ve learned from Paul is that you can always find a path forward without compromising your case or your integrity. No case is perfect; there will always be tough questions, tricky precedents, and bad facts. But there is always a way to deal with them, and you are much better served by figuring it out than by hoping you can duck the hard stuff or hide the ball. People respect Paul so much because he is candid and consistent about where he draws his lines.
SCOTUS Ladies: In the summer of 2022, you and Paul started Clement & Murphy, leaving a big firm that announced (in the wake of winning a landmark SCOTUS case!) it would no longer represent clients in Second Amendment cases. Tell us about coming to that decision. Was it daunting to start from scratch? And, a year and a half in, how’s it going?
Erin Murphy: The decision itself was easy to make. We both knew we couldn’t walk away from our clients in the midst of ongoing representations, so the only hard part was figuring out how to get a new law firm up and running on such short notice. While we’d both been in small practice before at Bancroft, Bancroft had been around for a while before we got there, and it’s a different set of challenges creating a firm from scratch.
But the good news was that we had plenty of work and plenty of people wanting to come do it right from the start. So we hit the ground running and have been going strong ever since. We’re now 15 attorneys and counting, we continue to be blessed with exceptional clients and interesting work, and people seem to genuinely enjoy working here. You can’t get much better than that.
(You can read more about Erin and Paul's decision to start their firm in this op-ed for the Wall Street Journal.)
SCOTUS Ladies: Have there been any surprises (good or bad) about the shift from Big Law to a boutique firm?
Erin Murphy: Probably the biggest surprise has been the volume of district court work. We both thought that was the area that was likely to drop off most leaving big law since a fair amount of that tends to come from partners in other practices. In fact, it’s been the opposite. We still predominantly do Supreme Court and appellate work, but we’ve been involved in a lot of litigation from the ground up too, which is great since that presents more opportunities for younger lawyers to get into court.
SCOTUS Ladies: A recent study showed that amicus briefs filed by Big Law tend to be in favor of liberal causes. Are boutique firms the best way for conservative causes to get support from attorneys in private practice? Do you have other reactions to the study’s findings?
Erin Murphy: For sure. It’s an incredible disservice to the profession that big firms have become so homogeneous when it comes to anything remotely controversial, but that is unfortunately how it’s been for several years now. We fought the good fight for as long as we could, but we all saw how that ended. What these firms don’t seem to appreciate is that they are only hurting themselves. The judiciary is not nearly as homogenous as big law is becoming, so there is no avoiding having to persuade judges who share the views that so many firms have apparently decided are anathema.
Yet big firms are systematically driving out of their ranks talented young lawyers who actually understand how to appeal to those judges. That is a disservice not only to their clients, but to the attorneys who do choose to work at these firms, as it’s harder to learn how to spot and overcome the weaknesses in your argument if you are surrounded by an echo chamber. That’s why we’ve always worked to have genuine diversity of thought among the lawyers in our practice. It makes all of us better at what we do.
SCOTUS Ladies: Have you observed any notable changes in legal research and case preparation due to technological advancements?
Erin Murphy: I’m too set in my ways at this point to try things like Chat GPT, but I’m sure some of our attorneys are finding good uses for it. For me, the biggest change in preparation style came from the pandemic. I had always been pretty old school with my argument prep, binders full of cases and the like that I spent lots of time highlighting and tabbing. But with all the remote work and arguments, I finally started to shift to doing everything electronically. The first time I went back to an in-person argument, I realized I didn’t have anything to bring with me beyond a few pages of notes, so I had to throw a key docs binder together at the last minute.
And it seems more and more appellate courts are letting arguing counsel have laptops and tablets with them, so you really don’t even need all the paper at this point. I still can’t bring myself to take electronics up to the podium, but I’m seeing more and more people do that, and I bet it will become the norm pretty soon with younger lawyers.
SCOTUS Ladies: If you hadn’t become a lawyer, what do you think you’d be doing today?
Erin Murphy: I went to journalism school undergrad, and while I never really liked the reporting, I loved the writing, especially persuasive writing. If I hadn’t found an outlet for that in brief writing, I think I would have enjoyed being a columnist or editorial writer. I actually dabbled a bit in column writing while I was in law school and had a lot of fun with it. Some similar skills to appellate work, of course, but there’s an even bigger premium on the writing when you only have 750 words or so to persuade your audience.
SCOTUS Ladies: Who is your favorite “SCOTUS Lady”?
Erin Murphy: Chief Judge Sykes, of course! Who could top her? But Justice Barrett is fast becoming a close second.
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Which legal luminary should we interview next? Send us your suggestions!