Adam G. Ciongoli, the general counsel of a big insurance company, argued a case before the Supreme Court last week. But he was not representing his employer. Indeed, he was not representing any client at all.
Mr. Ciongoli was there because neither the prosecution nor the defense was willing to support a particularly harsh sentencing decision from the federal appeals court in St. Louis. The Supreme Court had appointed him to defend the decision because no one else would.
The court uses that odd procedure roughly every year or so. It is a great honor for the lawyer involved, but it raises questions about whether the court is engaged in a kind of judicial activism in shaping the case before it.
The adversary system generally allows the parties to decide which issues to present. And the Constitution says that federal courts should decide only actual cases and controversies.
In an article to be published in the Stanford Law Review in April, Brian P. Goldman analyzed the phenomenon of appointing lawyers to argue positions abandoned by the parties.
He found that the Supreme Court had named more than 40 lawyers to argue such positions, and he concluded that about a third of the appointments were problematic examples of “judicial agenda-setting” at the expense of “party autonomy.”
But Mr. Goldman said Mr. Ciongoli’s appointment was “not improper” because it concerned a point that the parties were not free to decide for themselves. The question in the case, Pepper v. United States, was whether judges who resentence defendants after an appellate reversal may take account of the defendants’ conduct in the meantime.
Prosecutors had said that Jason Pepper’s heroic efforts to rehabilitate himself — kicking drugs, attending college, earning straight A’s, getting married and obtaining a good job — should count for nothing. An appeals court agreed. But when Mr. Pepper asked the Supreme Court to hear his case, the government reversed course and said that the judge had been entitled to base a new sentence on what Mr. Pepper had done since the first one.
Under the appeals court’s reasoning, Mr. Pepper, who completed a two-year sentence on drug charges in 2005, could be sent back to prison for three more years. Since neither side was prepared to defend that decision, the Supreme Court appointed Mr. Ciongoli.
In an interview a few days before the argument, Mr. Ciongoli, a former Justice Department official and law clerk to Justice Samuel A. Alito Jr., said the assignment was “an incredible honor and not something you say no to.”
Though he has a demanding day job as general counsel of Willis Group Holdings, Mr. Ciongoli said he had prepared for the argument relentlessly. “From July to Dec. 6,” he said, referring to the argument date, “it’s probably going to be a couple of hundred hours, almost entirely nights and weekends.” He was paid solely in prestige.
Mr. Ciongoli appears to be the first in-house lawyer appointed to argue an orphan position in the Supreme Court.
The practice started in 1954, with the appointment of Erwin Griswold, then dean of Harvard Law School, in a divorce case. The latest appointment was announced last month, in what some call the case of the poisoned paramour.
In between, a host of prominent lawyers have made their way to the lectern to argue for proposition rather than a client. One was a 33-year-old lawyer named John G. Roberts Jr., who is now chief justice of the United States.
He may have done his job a little too well, convincing the court in 1989 to rule unanimously that the Constitution’s double jeopardy clause applies not only to criminal penalties but also to some civil fines. The court overruled that decision in 1997.
Chief Justice Roberts wrote last year that he considered that shift in the court’s position “a cautionary tale” about “yielding to the desire to correct the extreme case, rather than adhering to the legal principle.” He did not mention his own role in persuading the court to take a wrong turn.
At his own argument last week, Mr. Ciongoli made his points gamely. To allow judges to consider a criminal defendant’s conduct between an initial sentencing and a resentencing could, he said, create “a procedural merry-go-round.”
A day later, Mr. Ciongoli said he was still replaying every question and answer in his head. “There’s nothing that I wanted to get out that I didn’t get out,” he said.
At the end of the argument, Chief Justice Roberts thanked him for having “ably discharged your responsibility.”
That bit of gratitude “took me a little by surprise,” Mr. Ciongoli said.
“I’m honored and thrilled to have had an opportunity to do it,” he said. “I’m still a little wired.”