Fighting for Dignity and Justice in the Nation's Highest Courts: A Conversation with Amir Ali

Amir H. Ali serves as the Executive Director of MacArthur Justice Center, one of the nation’s leading civil rights firms. Mr. Ali, who is also a lecturer at Harvard Law School, has won nearly every appeal he has argued in the federal court system, including landmark Supreme Court cases Thompson v. Clark, Welch v. United States and Garza v. Idaho. Mr. Ali has worked with various clients across the country who have faced unwarranted violence at the hands of the police and wrongful convictions due to prosecutorial conduct. He also serves as Trustee of The Appellate Project and is a Fellow of the American Bar Foundation.

The interview below was conducted in Spring 2022 and has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Could you speak about your first experience arguing a case in front of the Supreme Court? 

Amir Ali: Arguing in front of the U.S. Supreme Court is an immense privilege, but also an immense weight. First and foremost, I represented a client who I cared deeply for, both personally and for his cause. I believed that he was serving an unconstitutional sentence. The nature of arguing a case in front of the U.S. Supreme Court meant that the outcome of the case would govern the whole country. And in that particular case, it would impact the hundreds or thousands of individuals who may have been serving unconstitutional criminal sentences, meaning they were behind bars even though there was no lawful basis for them to be there. 

I approached the process of arguing the case with that weight in mind. At the time, I was a relatively junior attorney who had practiced for five years. I knew I had to put enough preparation into the case, such that my client — and the others who’d be affected by the case — would get the same representation as if a person who had a career litigating before the Supreme Court had been arguing for them. What that meant, in my case, was a great deal of practice. I assembled panels of some of the Supreme Court practitioners who I respected most, including some who were likely to agree with me on the outcome I was seeking for my client and some who were likely to very much disagree with me on the outcome because I knew that some of the justices on the Supreme Court themselves would probably have some inclinations that went against my client to begin with. I sought out feedback from those attorneys, but also from mentors of mine who I was very lucky to have, and who could be available to me when I was trying to wrestle through some of the more difficult aspects of the case. 

And then finally, there was actually a crew of more junior attorneys who were critical to my preparation and to predicting and helping me work through what was likely to occur at the oral argument. Those attorneys were so selfless with their time. Although they might not have had the experience of some of the other folks who were in the room, they had their own fresh perspective on how we might tackle some of the issues and were very much willing to dig into the case at a level that made their input so valuable. 

For the argument itself, I would say that — as a result of the immense responsibility that I think applies in any case for the Supreme Court and even more so when the case concerns the liberty of so many people — my focus was to be present and to reflect the solemnity of the issue that was being argued. I think that that was important. Having the justices feel the equities of the case, what was at stake, and how antithetical to our constitution and laws it would be to have these folks remain in prison was important to persuade them to rule in our favor, as they later did. 

I’ll add one piece that made it all a little easier: my client in that case — a man named Gregory Welch — himself became an inspiration to me. He had brought his case all the way up to the Supreme Court by himself and was spending a lot of his own time in prison helping others. He was so engaged in the issues in his case and so positive despite being someone who has every reason to lose confidence in the legal system. That certainly didn’t lessen the weight, but it helped me get through some of the challenges. By the way, Mr. Welch is now out of prison. He has taken courses to become a paralegal and is still assisting others who are behind bars. So he remains an inspiration. 

HULR: Thank you so much for that response. Could you detail the experience of delivering your oral argument in the Supreme Court and paint a picture of the dynamics in the room for our readership? 

AA: Oral argument is best considered as a multifaceted conversation that the advocate is having with several people — each of whom may have different views — all at once. If you watch or listen to an oral argument — and I highly recommend that anyone interested in becoming a lawyer attend some — you might think that it looks a lot like a lawyer who is being asked a question, answering the question, and having a very one-on-one experience with each Justice. And to some extent that's true. It is very important to be answering the questions that I was asked. But when I argue, I am very conscious that when I have a question from one justice, the remaining justices are listening. They will have their own opinions as to what I say and the significance of the question I was being asked. So when I answer the question, I am conscious of how those other justices might react. 

To give a specific example, in my first oral argument before the Supreme Court, I fielded a barrage of questions from Justice Alito. A casual listener of the argument would have thought that they were hostile questions for my client. And at some level that was true — the implication behind the questions was that my client should lose. On the other hand, because of the practice and preparation that my team and I had put into the oral argument, I understood that those particular questions actually left us on a pretty strong footing. They were not questions that were likely to persuade a majority of the Court to rule against us. So I handled the barrage of seemingly hostile questions as best as I could, and Justice Alito cracked a joke at my expense, knowing that I could hold my ground and it was not a particularly consequential exchange.

That was the plan going in, and fortunately, I can say now that it worked. In fact, although the casual observer in the courtroom that day would have assumed that Justice Alito was very much against our position, he ended up joining the majority opinion in favor of my client. That’s why I say it is a multifaceted, dynamic conversation that the advocate is having with multiple justices while, of course, trying to address the concerns of the justice who is presently asking them a question.

HULR: Though many argue the American criminal justice system is broken, various voices are both in conversation and conflict with one another regarding how best to restructure it. In your opinion, what are the most critical steps towards reimagining and actionably transforming our current criminal justice system? 

AA: We always need bold ideas. But what we need even more is bold action — an unwavering determination to get those ideas accepted and implemented.

I argue in front of courts and in front of judges, and often the most we can talk about in that context is reform. That is because we are, by definition, working within the system. Judges are called upon to apply the laws that have already been enacted and are constrained by those laws. Now, that’s not to say that there can’t be reasonable disagreement about what those laws mean, and as an advocate, there is some potential for important and meaningful change within that system. But the relief available is inherently limited, and in fact, the vast majority of the legal system is about representing an individual client and obtaining a result for that individual client without regard to broader reform or the direction of the law generally. 

So what we need, again, are bold ideas and the determination to implement them. The ideas should look at how we might change the overall system, potentially in dramatic ways. I’m talking about changing the laws and policies themselves — the things that happen in council meetings and legislatures. I think most people paying attention would say that we are doing pretty well on the bold idea front. There are so many brilliant and data-driven ideas that would be popular, effective, and make an immediate difference if implemented.  There is an immense body of popular writing and scholarship on those questions. 

What we need to do is start communicating those ideas to people in a way that is accessible and will allow the policies to change. For example, police are not suited to respond to — and, frankly, do not want to be responding to — a great number of circumstances that society presently asks them to respond to. It turns out, that can cause harm to people. That’s not a controversial proposition– the fact that police are called upon to do things they are not even trained for is something that most individual police officers would agree with. 

It tends to be when you talk to the folks who have an interest in large police budgets that police officers are cast as a jack of all trades who should be doing everything. The concept that there are these situations in which we ought to rethink what we’re doing is a popular one, but we need to put the work in. And this is happening now, to educate people about that and to turn these popular ideas into popular ideas that register with folks when they think about what needs to change in society. 

Another important observation is that incarceration causes so much harm to people that were not accounted for when we adopted our present, overly-harsh system of laws and penalties. It is harmful to people who are sentenced for far too long and become less likely to be successful in reintegrating as a result. It is harmful to the families of the people who are separated from their loved ones for so long. One of the greatest family-child separation crises in the world is right here in the United States, domestically, with families and children who are separated from parents who are serving sentences of a length that is often required by law but ought never to have been imposed in the first place. Anyone who has ever visited a prison would know that a single prison visit is a whole day affair of waiting that is quite unpleasant. And many prisoners are sent across the country, so that’s not even possible. The disruption to families is palpable and has real consequences for society.

This damage we are doing to individuals and to families, and as a result to society as a whole, is something that needs to be made part of the mindset of the general public. That’s a big task because for so long harsh punishment has been what sells. We need to change that narrative and educate folks that harsh punishment costs us a lot. 

HULR: You are one of only several attorneys in the United States who has convinced the Supreme Court to release wrongfully-sentenced individuals at the certiorari stage, and you accomplished this twice. When arguing wrongful convictions cases in front of courts at the certiorari stage, are there unique challenges to the process? Could you speak about your experience doing so? 

AA: I appreciate you highlighting this. So often, folks are dazzled by the act of arguing at the Supreme Court. I think that focus misses the fact that clients who have a lot at stake would much rather never have to go to the Supreme Court in the first place. They would prefer to get what they want without that trouble. Focusing on the oral argument, therefore, really centers the attorneys involved in the case instead of the people who have concrete interests at stake. And in my cases, it’s often their lives or liberty at stake. 

The cases you’re referring to involve two individuals in very different circumstances and different times who were in prison and would have had lengthy sentences to serve — one of them, the rest of their life, and the other, many years remaining on their sentence. But they had a few things in common. Neither of them had any place being in prison for that remaining time. And they were both asking the courts to overturn their conviction in one case and sentence in the other case. I was able to achieve that result for them at the screening or “certiorari” stage at the Supreme Court, without having to brief or argue their case to the justices — a result that anyone in their position would take a million times over the risk of having to persuade five justices to rule in their favor. 

The challenge in getting this done is that seeking Supreme Court review is generally a last-straw effort, and the prosecutors often aren’t willing to reconsider earlier positions in the case at that point. The Supreme Court doesn’t hear many cases each year — between 60 to 80 cases total in the modern age of the court. Yet the justices get roughly a hundred times that number of petitions at their door each year. Because it is an incredible challenge to get the attention of the U.S. Supreme Court at that screening or “certiorari” stage, prosecutors often feel little incentive to come to the table and hear your client. 

Consider one of the cases you referred to. My client was a man named Corey Williams, from Shreveport, Louisiana. He was a man at the time I represented him before the U.S. Supreme Court, but he was just a boy at the time he was sent to death row in Louisiana’s maximum security prison. He was wrongfully convicted of capital murder in a case that was replete with prosecutorial misconduct that went so far as suppressing and concealing evidence of his innocence, of witnesses who said that he could not possibly have committed the crime.

Despite being the victim of an absolute tragedy, Corey was connected with some tremendous lawyers who litigated on his behalf in the state courts in Louisiana for two decades. And the State of Louisiana’s District Attorney Office defended the wrongful conviction for that period despite the really serious indications that there had been some misconduct. 

By the time I got involved in the case, the DA had stood by Corey’s conviction for 20 years. 

But if anything, this is a story of not losing hope — of realizing that most people at the end of the day want to do what’s right and want to be good, including your adversaries. We filed a petition with the U.S. Supreme Court that highlighted the injustice in Corey’s case, knowing that the odds of the Supreme Court granting certiorari were very slim in any case. And so we also maintained a willingness to engage with our adversaries. Rather than solely focus on persuading the justices to hear the case, which would have then required us to persuade five justices that Corey should be set free, we were able to use the advocacy in our petition to bring the District Attorney’s Office to the table. 

What we learned was that there were folks on the other side of the “v.” who wanted to do the right thing. Even if it took them far longer than we would have liked to get to that point, and even if they weren’t willing to admit all of the injustice we wanted them to admit, we could get to a result in which Corey would walk out of prison rather than spending the rest of his life in prison. And that’s what happened. We reached an agreement with the District Attorney, in which we would dismiss our petition and Corey walked out of prison the very next day. 

HULR: In Welch v. United States, the Supreme Court held that hundreds of individuals subject to mandatory minimum sentences were entitled to be resentenced. Could you speak about the importance of such a precedent, and why it did not previously exist? 

AA: The legal system is not designed to acknowledge past mistakes. If anything, it is designed to look past them in the name of what judges refer to as finality.

That’s what was going on in Mr. Welch’s case. The Supreme Court had held just a few months earlier that a federal statute imposing a mandatory minimum sentence of 15 years to life in prison was unconstitutional because the language of the law was so vague that it led to completely arbitrary sentences. In the wake of that ruling, an important question emerged: What about the hundreds, or maybe even thousands, of folks who had been subject to those arbitrary sentences and were already serving that 15 to life? That was the issue I argued in Welch. That question — and the importance of the precedent — comes back to that fundamental question of when the legal system will recognize the mistake that it made. 

It turned out that different courts across the country were answering it differently. Some courts said the mistake could not be corrected — in other words, “sorry, but you’re staying in prison.” Other courts said it was necessary to give people new sentences that were not premised on the unconstitutional provision — the result was that many of those people were free to go home. It’s hard to imagine a greater disparity: people in the exact same circumstances, with some told to remain in a cell and others going home, based simply on where they happen to live. 

That gross disparity allowed us to persuade the Supreme Court to take Mr. Welch’s case and decide the issue. Fortunately, we established a precedent that this type of mistake must be righted. 

HULR: In Garza v. Idaho, you persuaded the Supreme Court to expand the constitutional right to counsel to include the right to accept a guilty plea, even when the plea agreement purports to waive the right to appeal. Could you explain what precisely this decision means, and how it altered the status quo? 

AA: The vast majority of our criminal legal system takes place behind closed doors. In particular, behind closed doors in the prosecutor’s office. Somewhere between 95 and 99% of prosecutions in this country are resolved not in front of the jury as we see in movies and on TV, but by agreement between the prosecutor and the person who’s being charged with the crime. And behind that is an immense arsenal of penalties that the prosecutor wields. 

Prosecutors are given the discretion to “throw the book” at a person accused of the crime unless that person agrees to admit their guilt. If the person is willing to do that, the prosecutor will cut them a break. That break can quite literally be — and not infrequently is — the difference between spending the rest of your life in prison or a few years of it in prison. Think about how you would possibly weigh that decision, even if you were innocent — if you thought there was some chance you would have to spend the rest of your life in prison. That’s not an extraordinary hypothetical by any means. And once an agreement is made in those coercive circumstances, as it almost always is, the parties go into court, ask the judge to approve the agreement, and the judge sentences the defendant. All resolved behind closed doors. 

This case I argued before the Supreme Court, Garza, involved the next level of lack of transparency in our system. In that case, the prosecutors had not only come to an agreement on the threat of greater sanctions if Mr. Garza didn’t agree, but they had also said that Mr. Garza would waive his right to any review of the legality of that agreement in a Court of Appeals. So not only would the agreement just be entered by the court, but afterward, there would be no potential for further review by a higher court of what had taken place. 

We established a precedent recognizing that there is always a role for Courts of Appeal in reviewing these plea agreements. The Supreme Court decided it was not going to let the door close that final few inches. 

HULR: In addition to arguing cases, you have also worked to challenge certain executive policies or decisions that harm minorities and people of color. This included your brief detailing President Trump’s history of hatred toward Muslim people, which was later cited by Justice Sotomayor in her dissenting opinion in Trump v. Hawaii. In what ways are writing briefs and efforts to challenge executive policies different than arguing a case in front of a court, and can you speak about their unique significance?

AA: It is important to remember that just because a case has reached a court and you have two parties arguing on each side of the case does not mean that everyone who will be impacted by that case has been given a seat at the table. And so the ability to file a brief even when a person is not party to a case is an essential means of trying to have the court appreciate the full consequences of its decision. 

Perhaps the most common example — and Trump v. Hawaii, the Muslim ban case, is one of these — is a case where it is the government on both sides of the case. There, it was a state versus the federal government. There may well be people or communities who are going to be affected by the outcome of the resolution of that position, who otherwise would not get to weigh in on a single word of what is being argued in court and therefore, what’s being decided by the judges. And so there’s incredible importance in communities paying attention to the cases that they are not involved in that are being decided by the courts, offering their perspective, and making sure that the concrete harm or consequences that they may face are taken into account by the court. 

The role we played in Trump v. Hawaii was to ensure that whatever the U.S. Supreme Court did, it would do with the full record of President Trump’s history of animus and hatred towards Muslim people. We felt that that record was not adequately detailed in the papers that had been filed with the Court. We thought it was critical that the record be before the Court, at a minimum, for posterity. We wanted to be sure that when we look back as a society to the Supreme Court’s decision upholding the Muslim ban, no one could say the Court wasn’t fully aware of the record of bigotry. 

HULR: As an attorney who has been in the profession for many years, and who has won nearly every appeal you have argued in federal court, in what ways has your approach to selecting and arguing cases both evolved and remained consistent? Are there specific moments that challenged you to change? 

AA: I like to think, and certainly hope, that I am constantly self-assessing where there is the most need within the areas that I litigate in courts. The principles that generally drive me are to identify recurring barriers to justice in civil rights litigation or criminal prosecutions and to establish precedents that remove those barriers and ensure that people involved in the criminal legal system are treated with dignity and are heard. 

Where self-assessment comes into play is to ensure that the progress we’re making reflects the needs of the people and communities we represent, even if, as I mentioned before, it is constrained by the fact that we are arguing in courts. Within that, we are mindful of views in the judiciary that may be less open or even hostile to the types of people and legal issues that we litigate. I believe in the principle of standing up for injustice even when the odds are very much against us while maintaining a strong bond to the people we represent and what is needed most. And that’s how I at least aspire to practice.

HULR: Aside from your work with the MacArthur Justice Center, you also serve as the Treasurer of the Appellate Project, a nonprofit that focuses on making the appellate profession more accommodating and accessible for students of color. In what ways does the current profession exclude or discourage aspiring attorneys of color, and how is the Appellate Project working to reverse that? 

AA: The easiest way to respond to this question is by speaking from my own experience. Within the Supreme Court bar in Washington, D.C., I am one of few people of North African or Middle Eastern descent, one of few immigrants to the country, and one of few Muslim Americans. That’s true of many other backgrounds as well, and it is a problem. 

As our discussion highlights, appellate courts decide important issues that have concrete consequences and potentially harm for communities. Representation is critical to a just resolution of those issues. What the Appellate Project is doing here is tremendously important and urgent work. It is breaking down the barriers to the representation of people of color and other minorities in the appellate profession. And that means rethinking and opening up the door to the credentials that folks in the profession look for, which may currently be subject to exclusionary or biased processes. It also means rethinking where folks recruit from and broadening the scope of the schools that typically feed into the profession. Perhaps more than anything, in my view, it means facilitating connections and relationships that tend to be needed or are helpful in having folks succeed within the profession. 

One of the things that the Appellate Project has done is create a mentorship project that connects experienced appellate attorneys with law students who may frankly have barely heard of the appellate profession level, let alone know the game that typically and unfortunately needs to be played to advance in the appellate bar. Just connecting folks, and giving them the opportunity to learn about what the appellate profession is and what is required to break through — breaking down that informational barrier — is alone a huge step forward.

HULR: Do you have any final words of wisdom for aspiring attorneys? 

AA: Focus on finding the balance between having an open mind, yet developing and adhering your own system of values. In society, lawyers are often thought of as hired guns, and we see the worst of the profession highlighted all the time in the media — people who will go into court and argue for injustice simply because there’s a paycheck at the end of the day. I believe that a person who comes into this profession and leaves law school without any set of core values risks doing more damage to society and to our profession than improving it. 

Importantly, that doesn’t mean you adopt a set of values, turn off your ears and plow forward. If you are the best listener in the room and the most willing to process, learn from what others are saying, you are likely to be the one with the most potential to persuade. But it does mean that you need to stay true to who you are and your own principles so that you are using your skills to better the world we live in.