Sarah O’Rourke Schrup
Sarah O’Rourke Schrup

Earlier this month, Northwestern Pritzker School of Law professor Sarah O’Rourke Schrup made her first oral argument before the U.S. Supreme Court.

Sitting in the courtroom that day were several of the Northwestern Law graduates who helped work on the case while they were students in the Bluhm Legal Clinic’s Appellate Advocacy Center.

“It was really very special,” said Schrup, who is the director of the Appellate Advocacy Center and Clinical Assistant Professor of Law.

Schrup, along with Sidley Austin LLP partner Jeffrey T. Green, supervised the law students who helped draft briefs, prepare for moot courts and research relevant areas of law in the case Kahler v. Kansas.

The case asks the high court to decide whether the Eighth and 14th Amendments to the U.S. Constitution allow states to abolish the insanity defense.

Schrup’s and Green’s team represented James Kahler, who killed four members of his family in 2009. Kahler was not allowed under Kansas law, to argue an insanity defense to his murder charges.

Kahler appealed his conviction, which was upheld by the Kansas Supreme Court in February 2018.

A Northwestern student in the appellate advocacy center found the Kansas Supreme Court’s decision and brought it to Schrup’s attention, she said.

“We try to keep up to speed on what’s happening in the country,” Schrup said. “We assign students to various courts, and if they see something interesting, they let us know and reach out to the lawyers. That’s what happened in this case. That’s not how we get all our cases, but that’s how we got this one.”

Schrup, Green and the students argued the state’s decision to abolish the insanity defense is unconstitutional.

Green, a partner in Sidley’s Washington, D.C., office who has argued multiple cases before SCOTUS, said Kansas law provides that defendants must show they did not form the requisite mental state in order to be acquitted of the crime.

“You don’t get to present an affirmative defense of insanity. You just get to try and negate the prosecution’s evidence that you did what you did deliberately,” he said.

Schrup handled the oral argument before the justices as the court opened its new session on the morning of Oct. 7.

She claims a place in court history as the first lead counsel to take advantage of the court’s new “two-minute rule,” implemented in a change to the court’s Guide for Counsel earlier this month.

The new guidance says the justices “generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument.”

During her opening remarks, Schrup told the justices that Kansas’ law deviates from a centuries-old recognition that guilt was based on the ability of a person to know between right and wrong.

The state “uproots the deeply rooted by eliminating any mechanism to assess whether a defendant's capacity for moral judgment was intact or was irretrievably compromised by mental illness,” she told the court.

In his turn, Kansas Solicitor General Toby Crouse argued the state’s new law is sufficient to protect a defendant’s due process and Eighth Amendment rights.

Justice Stephen G. Breyer posed a hypothetical to Crouse where two men are charged with murder.

“Both defendants, one and two, are certified by whatever board of psychiatrists you want as totally insane. All right? The first defendant shoots and kills Smith. The second defendant shoots and kills Jones,” Breyer explained.

“The first defendant thinks that Smith is a dog. The second defendant knows it’s a person, but thinks the dog told him to do it. OK? What’s the difference?” he pressed Crouse.

Breyer’s wanted to demonstrate that in the first case, the man would be acquitted under Kansas law because he intended to kill a dog, while the second man might be convicted. He wanted the Kansas government to justify how it could treat the two cases differently.

“Justice Breyer’s point was, ‘Can you explain to me how this makes any sense? Why does your system make sense if it sets this person free but locks up and potentially kills the other one?’” Schrup said.

Schrup said she also faced tough questioning by the justices.

“I don’t think the answer is clear cut in this case, which way it’s going to come out. But there were hard questions on both sides,” she said.

Schrup traveled back to the U.S. from Bhutan in early September to begin preparing for the case. She accepted a Fulbright Scholarship to study in the remote Himalayan kingdom before the Supreme Court granted a petition for a writ of certiorari in the case.

She said she’s grateful to the groups and individuals that supported her team throughout the process, including the nine amicus briefs filed on their behalf and many moot courts held for their benefit.

“This was my first time of being on the receiving end of the support and assistance that people give so freely for these cases,” she said. “That was the most gratifying piece of this — to see so many smart and well intentioned people come together and work together on a really tricky legal issue.”