AKIN GUMP STRAUSS HAUER & FELD
Akin Gump’s 21-member team is led by Patricia Millett, a former assistant solicitor general, former appeals judges William Norris and Murry Cohen, and Rex Heinke, who has argued hundreds of appeals and writs. Beside the cases listed here, the firm won rulings defining “foreign state” under the Foreign Sovereign Immunities Act and preventing Allen Stanford from necessarily sticking his insurers with the costs of his civil and criminal defense.
• U.S. v. Stevens. Lead attorney Patricia Millett (argued). The firm represented Robert Stevens, an author and documentary producer convicted of animal cruelty charges stemming from an investigation into the selling of dog-fighting videos. The U.S. Supreme Court affirmed a court of appeals’ judgment vacating the conviction, holding that federal statute criminalizing the commercial creation, sale or possession of depictions of animal cruelty was overbroad and invalid under the First Amendment.
• SEC v. Rajaratnam. Lead attorney Patricia Millett (argued). Vacating a district court order, the 2d Circuit concluded that the trial court exceeded its discretion by ordering Danielle Chiesi, a hedge fund analyst, and Raj Rajaratnam, a hedge fund manager, to disclose wiretaps to the SEC that were obtained by the U.S. attorney’s office during a criminal investigation into allegations of insider trading. The 2d Circuit said the order was premature because the defendants’ motion to suppress the wiretaps on the grounds that they were illegally obtained had not yet been ruled upon.
• United Technologies Corp. v. U.S. Department of Defense. Lead attorney Patricia Millett (argued). In a reverse Freedom of Information Act case, United Technologies Corp. fought to prevent the Defense Contract Management Agency from releasing documents evaluating its quality-control processes. The D.C. Circuit reversed a summary judgment order, holding that disclosure of the documents was arbitrary and capricious because it failed to properly apply an exemption that protects confidential business information.
Baker Botts’ appellate and Supreme Court practice group has represented clients before the U.S. Supreme Court, all 13 U.S. courts of appeal and the Texas Supreme Court. Since January 2010, the group, which includes former Texas Chief Justice Tom Phillips, has secured more than 20 favorable rulings before federal and state appeals courts, including the U.S. Supreme Court.
• Shell Oil Products Co. v. Mac’s Shell Service Inc. Lead counsel Jeffrey Lamken, David Rodi and Macey Reasoner Stokes (Lamken left midcase to form Molo­Lam­ken but continued to work on the case with the Baker Botts attorneys). In its first interpretation of the Petroleum Marketing Practices Act, the U.S. Supreme Court rejected a raft of retailer claims of “constructive termination” and “constructive nonrenewal” after Shell imposed more onerous terms on its franchisees. The Court noted that the franchisees continued to operate under the Shell brand. The firm argued that the outcome resolved a circuit court split and, consequently, uncertainty about what the law required.
• Taylor v. Acxiom Corp. Lead counsel Aaron Streett (argued), Chad Pinson. Baker Botts represented a raft of retailers in a Driver’s Privacy Protection Act class action filed on behalf of 20 million Texas driver’s license holders over the sale by the state of their license information. Streett drafted an appellate brief joined by all 75 appellees and secured amicus support from the state of Texas. In a precedent regarding bulk data sales, the U.S. Court of Appeals for the 5th Circuit rejected the plaintiffs’ argument the data sale violated the law, or that resellers must have a permissible reason to pass the information along to other buyers.
• Salazar v. Buono. Co-lead counsel Aaron Streett, Chad Pinson, Ryan Bangert. The firm co-wrote an amicus brief on behalf of the Veterans of Foreign Wars, American Legion and Military Order of the Purple Heart in this challenge to a cross-shaped World War I memorial on federal land in the Mojave Desert. A splintered Supreme Court ruled that the cross was never intended as a Christian symbol, but rather to honor the war dead.
**This item has been corrected to reflect the fact that Baker Botts argue Salazar v. Buono before the U.S. Supreme Court, but rather contributed an amicus brief.
COVINGTON & BURLING
Covington & Burling’s appellate group includes 56 attorneys led by Robert Long, who has argued 16 cases before the U.S. Supreme Court. The group, which also includes former federal judges Michael Chertoff, Rod McKelvie and Sarah Wilson, employs former law clerks from the Supreme Court and every federal court of appeals as well as six former assistants to the solicitor general. During the past year, Covington clients prevailed in two cases before the Supreme Court and won 13 cases in the courts of appeal, including controversies worth more than $1 billion.
• Robertson v. Watson. Lead counsel Robert Long (argued), Jack Metzler, Mark Mosier, Greg Rubio. Sometimes discretion is the better part of valor. During oral arguments in a test of a District of Columbia law permitting private citizens to pursue criminal contempt charges against people who violate civil protective orders, a faction of the court expressed open hostility. Long gave the justices a way out: Drop the appeal as improvidently granted. A narrow majority agreed, preserving a raft of similar laws in the district.
• UFCW Local 1776 v. Eli Lilly and Co. Lead attorneys Robert Long (argued), Michael Imbroscio, Mark Lynch, Jonathan Marcus and Mark Mosier. The 2d Circuit rejected class certification for third-party payers who claimed that Eli Lilly and Co. made misrepresentations about the effectiveness and safety of the drug Zyprexa. They sought $7.7 billion in damages. Under RICO, the court said, there’s “no question” that plaintiffs must allege and prove “third-party reliance as part of their chain of causation.” The firm says the precedent could head off a cause of action that has been growing in popularity.
• Conkright v. Frommert. Lead counsel Robert Long (argued), Robert Wick, Richard Shea, Jonathan Marcus and Christian Pistilli. Xerox Corp.’s pension administrator told retirees during the 1980s that their benefits would be handled in a manner it later determined violated the Employee Retirement Income Security Act. The retirees sued to enforce the original interpretation. The 2d Circuit said they could, but, in a 5-3 decision, the Supreme Court rejected the lower court’s “one-strike-and-you’re-out” approach. The justices said that “a single honest mistake” in plan interpretation does not justify stripping a plan administrator of deference in subsequent interpretations of the plan.
GIBSON, DUNN & CRUTCHER
Lawyers at Gibson, Dunn & Crutcher turned to an often ignored section of U.S. law to obtain depositions, documents and outtakes of a documentary film in an effort to prove that environmental contamination claims brought in Ecuador against their client, Chevron Corp., are fraudulent. The case, filed by a group of Ecuadorian citizens, alleges that a subsidiary of Texaco Inc., which was acquired by Chevron in 2001, contaminated the water while extracting oil in the region.
NLJ VIDEO : Interview with Gibson Dunn’s Theodore Boutrous Jr.
Led by Cate Stetson, one of NLJ affiliate The American Lawyer‘s “Top 45 under 45″ women, Hogan Lovells’ appellate practice has national reach, representing a range of clients in the firm’s regulation and litigation practice. Last year, the firm scored important victories in the area of energy regulation and a case against the committee responsible for organizing the inaugural festivities for President Obama.
• Newdow v. Roberts. Lead attorneys Dominic Perella (argued), Craig Hoover. The D.C. Circuit made short work of atheist Michael Newdow’s challenge to religious components of Obama’s inauguration. A federal trial judge had refused to block the ceremony, and the circuit court rejected Newdow’s constitutional arguments in May 2010 for want of standing and as moot. Judge Brett Kavanaugh agreed with the outcome, but added that the words “so help me God” in the presidential oath are not “proselytizing or otherwise exploitative” and that the use of the phrase is “deeply rooted in the Nation’s history and tradition.” The Department of Justice represented the official parties and Hogan represented the Presidential Inaugural Committee.
• Washington Gas Light Co. v. FERC. Lead attorneys Christopher Handman (argued), J. Patrick Nevins. Client Dominion Transmission Inc. wanted to undertake a $1 billion expansion of its liquefied natural gas facility on the Chesapeake Bay, but a Washington distributor feared greater gas flow would overwhelm its infrastructure. The 3d Circuit initially agreed, but sided unanimously with the client after the Federal Energy Regulatory Commission made a relatively modest clarification that Dominion must restrict gas flow.
• South Coast Air Quality Management District v. FERC. Lead counsel Cate Stetson (argued), Lee Alexander, Stefan Krantz. Client North Baja Pipelines Inc. won Federal Energy Regulatory Commission approval to expand an existing natural gas pipeline and send liquefied natural gas from Mexico to California and other Southwestern states. The air management district objected that the commission had failed to account for elevated nitrous oxide emissions from burning the Mexican gas. The 9th Circuit ruled that the commission had indeed accounted for that factor, and “imposed what it reasonably believed to be reasonable efforts to mitigate the impact” — clarifying the standard for environmental review of important infrastructure project.
JENNER & BLOCK
During the past eight years, Jenner & Block has argued 25 cases before the U.S. Supreme Court. During the past year alone, the firm delivered a significant First Amendment win and another victory that could affect thousands of asylum seekers and immigrants seeking safety in the United States.
• Christian Legal Society v. Martinez. Lead counsel Paul Smith. Jenner represented Hastings Outlaw, a gay student group, in this case. The group sided with the University of California Hastings College of the Law in defense of a law school policy against officially recognizing student groups that discriminate against gays. A Christian group refused to admit members who refused to disavow homosexual conduct. The school’s open-membership policy for student groups, Justice Ruth Bader Ginsburg wrote, was reasonable and “textbook viewpoint neutral.”
• Kucana v. Holder. Lead counsel Elaine Goldenberg. The case of Agron Kucana, a citizen of Albania who applied for asylum after his visa expired, turned on the Supreme Court’s interpretation of a federal statute that the government claimed limited judicial review of Board of Immigration Appeals decisions. The team persuaded the Court that the plain language of the law refuted the government. The outcome will help determine the future of thousands of immigrants who depend on the federal courts to remain in this country.
• Hui v. Castaneda. Lead counsel Elaine Gold­enberg. The appellant was an immigration detainee who had his penis amputated and subsequently died of penile cancer after state and federal officials refused his repeated requests for treatment and a biopsy of a bleeding lesion over a period of 15 months. The client was a Public Health Service worker being sued as an individual. The Supreme Court concluded unanimously that federal law shielded the client from individual claims. The firm argued that the outcome was essential to the health service’s ability to recruit qualified doctors.
Jones Day lawyers argued three cases during the U.S. Supreme Court’s 2010 term and its attorneys practice at all appellate levels. Practice Chairman Glen Nager, for example, won Ledbetter v. Goodyear Tire & Rubber Co. Michael Carvin argued the disputed 2000 election before the Florida Supreme Court and helped defeat the government’s RICO claims against the tobacco companies. The list goes on. The practice includes a core team in Washington plus attorneys in 10 offices around the country, giving the firm truly a national scope.
• Free Enterprise Fund v. Public Company Accounting Oversight Board. Lead attorneys: Michael Carvin (argued), Noel Francisco, Christian Vergonis. The Supreme Court struck down a key provision of the Sarbanes-Oxley Act of 2002, ruling that Congress had impermissibly given the Public Company Accounting Oversight Board enforcement authority while simultaneously immunizing its members from presidential oversight and control. The team had argued that this subverted the president’s ability to ensure that the law was faithfully executed and undercut the public’s ability to judge his efforts.
• Weyhrauch v. U.S. Lead attorneys Donald Ayer (argued), Nathaniel Garrett. This was among a trio of landmark rulings in which the Court restricted prosecutions for honest services fraud to allegations of bribery and kickbacks. (The others were U.S. v. Skilling and Black v. U.S.) Here, the Supreme Court reversed a 9th Circuit ruling allowing federal fraud charges against Bruce Weyhrauch, a former Alaska state senator who hadn’t disclosed that he sought employment from an oil services company with an interest in a tax bill that he voted on.
• American Needle Inc. v. National Football League Inc. Lead attorneys Glen Nager (argued), Joe Sims, Meir Feder. The Supreme Court unanimously reversed the 7th Circuit in a decision that potentially opened the NFL to antitrust challenge. The firm represented a clothing manufacturer that challenged a pact among the teams to grant Reebok an exclusive license on sports gear. The Court ruled that, although the teams necessarily must collaborate, they remain “separate, profit-maximizing entities” under antitrust law.
KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL
David Frederick describes himself and his colleagues at Kellogg, Huber, Hansen, Todd, Evans & Figel as “pike lawyers,” a term he first heard from a venerable local practitioner, Jacob Stein. “We take whatever comes down the pike,” Frederick said. In recent years, more and more clients have been coming down the pike to see Frederick and his colleagues for appellate help, especially at the U.S. Supreme Court level.
KING & SPALDING
Former Solicitor General Paul Clement leads a team of veterans of the Justice Department and solicitor general’s office and former appellate clerks. The firm often gets involved before a case gets anywhere near an appeals court, the better to set the stage for that eventuality. To name one example, the National Football League has retained the practice in the litigation attending a lockout by the league of the players’ union.
• McDonald v. Chicago. Co-lead counsel Paul Clement, with Jeffrey Bucholtz, Adam Conrad. Clement filed an amicus brief on behalf of 58 U.S. senators and 251 members of Congress and contributed oral arguments on behalf of the National Rifle Association, helping to persuade the U.S. Supreme Court to apply its Second Amendment precedent in D.C. v. Heller to the states.
• Perdue v. Kenny A. ex rel. Winn. Lead counsel Paul Clement, with Daryl Joseffer, Adam Conrad. The Supreme Court ruled that judges may award fee enhancements for lawyers who do exceptional work in class actions and public-interest cases. However, the justices ordered further proceedings regarding whether a $4.5 million enhancement was justified in this class action challenging Georgia’s foster care system.
• Henderson v. Shinseki. Counsel Paul Clement with Daryl Joseffer, Zachary Tripp. Millions of disabled veterans could benefit from this case concerning the deadline for appealing a denial of disability benefits. The Supreme Court ruled that, given Congress’ history of concern for the welfare of war veterans, the courts can overlook a missed deadline depending on the circumstances. The firm represented a disabled veteran whose disability caused him to miss a deadline.
LATHAM & WATKINS
When he left his position as solicitor general of the United States in late January 2009, Gregory Garre eschewed the comfort of a return to his prior law firm, the former Hogan & Hartson, for the unknown territory of Latham & Watkins. His transition was eased by the well-regarded appellate shop that awaited him.
Mayer Brown’s 55-member appellate group has served as counsel of record in multiple key precedents, including landmark rulings limiting the liability of third parties in securities class actions and limiting punitive damages. By the firm’s count, it argued 40 appeals during 2010 and another 15 so far this year.
• In re Medtronic Inc., Sprint Fidelis Leads Products Liability Litigation. Lead counsel Kenneth Geller (argued), David Gossett, C.J. Summers, Daniel Ring, Herbert Zarov, Stephen Kane. The first circuit ruling to apply the U.S. Supreme Court’s Riegel v. Medtronic pre-emption ruling involved thousands of federal lawsuits over recalled defibrillator leads. The outcome was, in the words of NLJ affiliate The American Lawyer, “a home run.” In advance of the ruling, Medtronic settled the claims for a relatively modest $269 million.
• Arkema Inc. v. Environmental Protection Agency. Lead counsel Dan Himmelfarb (argued), John Hahn, Roger Patrick. The Environmental Protection Agency had long supervised a cap-and-trade system for hydrochlorofluorocarbons emissions, but tried to undo some permanent deals already in place. The D.C. Circuit said that would be retroactive rulemaking. The client stands to receive $250 million in additional allowances.
• In re WestPoint Stevens Inc. Lead counsel Philip Lacovara (argued), Andrew Schapiro, Hannah Chanoine. The fine print decided a multimillion-dollar battle between financiers Carl Icahn and Wilbur Ross for control of a bankrupt textile company. The bankruptcy court declared Icahn the winner based on his bid of more than $700 million. A district court reversed but the 2d Circuit ruled that the lower court lacked jurisdiction because Ross’ side neglected to negotiate a stay of the sale pending appeal.
ORRICK, HERRINGTON & SUTCLIFFE
This 71-lawyer group handles industry-defining cases at every appellate level. The firm stays at the center of things, submitting an amicus brief to this term’s Wal-Mart Stores Inc. v. Dukes, to name one example.
• Mattel Inc. v. MGA Entertainment. Lead counsel Joshua Rosenkrantz (argued), Annette Hurst, Warrington Parker. MGA had lost the rights to its Bratz dolls, worth $1 billion per year, was ordered to pay Mattel $100 million in damages, and was denied a stay pending appeal. MGA hired Orrick three days before the appellate merits briefs were due. Mere hours after oral arguments, the 9th Circuit granted a stay and followed up on July 22, 2010, by throwing out the verdict on grounds of errors by the trial judge.
• Facebook Inc. v. ConnectU. Lead counsel Joshua Rosenkrantz (argued), Alex Chachkes, Joseph Evall. Tyler and Cameron Winklevoss tried to relitigate claims that Facebook was stolen from them. In stinging a unanimous ruling on April 11, 9th Circuit Chief Judge Alex Kozinski wrote that the claimants were trying to secure through litigation what they had bargained away in their long-ago settlement with Facebook. “At some point, litigation must come to an end,” he wrote. “That point has now been reached.”
• Bruesewitz v. Wyeth Inc. Lead counsel Joshua Rosenkrantz, Richard Mark, Daniel Tomasch, Lauren Elliot (on briefs). This ruling closed the courts to plaintiffs asserting bad reactions to vaccines. Justice Antonin Scalia cited pre-emption by the National Childhood Vaccine Injury Act — sending cases back to administrative court, where compensation is limited.
The firm last year won an important precedent of interest to attorneys: It persuaded the D.C. Circuit to reject the Federal Trade Commission’s bid to infringe on the American Bar Association authority to regulate the profession. The team also established precedents before the U.S. Supreme Court.
• Reed Elsevier Inc. v. Muchnick. Lead counsel Charles Sims (argued), Mark Harris, Jon Baumgarten. Objectors sued to undo the settlement between publishers and freelance writers over digital rights. The 2d Circuit ruled that the courts lacked jurisdiction to approve any settlement involving uncopyrighted works, but the Supreme Court kept the settlement alive by declaring unanimously that the relevant statute was not an absolute bar to such deals.
• H.M. v. E.T. Lead counsel Peter Sherwin (argued), Justin Heinrich, Robyn Crosson, Nicole Haff, Kenneth Aldous. New York’s high court ruled that the courts can consider a woman’s obligations for child support and not just a man’s. The ruling opened the way for a lower appeals court to rule that a woman can be obliged to support a child that she and her same-sex partner jointly decided to bear.
• American Bar Association v. Federal Trade Com­mission. Lead counsel Mark Harris (argued), Kristen Mathews, James Segroves. Proskauer successfully represented the ABA in challenging a Federal Trade Commission policy that would have applied certain identity-theft regulations to attorneys. The firm had previously convinced a district court to grant summary judgment in favor of the ABA, and Congress passed legislation clarifying who is subject to the rule. The D.C. Circuit subsequently invalidated the FTC’s attempt to regulate lawyers.
QUINN EMANUEL URQUHART & SULLIVAN
Quinn Emanuel’s 33-lawyer nationwide appellate practice focuses on significant cases before the U.S. Supreme Court, the circuit courts of appeals and state high courts. Since January 2010, the group has won two cases before the U.S. Supreme Court.
• Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. Lead counsel Kathleen Sullivan, Daniel Bromberg. In a case of keen interest to shipping concerns, the Supreme Court held that ocean carriers fall outside the scope of the Carmack Amendment to the Interstate Commerce Act when they issue “through” bills of lading involving subcontracts for inland rail transport. Carriers thus escape regulatory and insurance burdens.
• Bruesewitz v. Wyeth LLC. Lead counsel Kathleen Sullivan (argued), Faith Gay, Sanford Weisburst. The Supreme Court ruled in favor of client Wyeth that the National Childhood Vaccine Injury Act pre-empts state tort suits against vaccine manufacturers. Administrative compensation was judged the exclusive remedy for vaccine injuries. The court cited the need to promote universal childhood immunization.
• Federal Treasury Enterprise Sojuzplodoimport v. Spirits International N.V. Lead counsel Kathleen Sullivan (argued), Daniel Bromberg, David Quinto. The 2d Circuit ruled unanimously for a Russian agency seeking to recover rights to the Stolichnaya vodka trademarks in the United States, saying that even assignments of incontestable trademarks may be challenged.
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER
Robbins Russell is relatively small, but the Washington firm’s record before the U.S. Supreme Court is impressive. Since the firm’s founding a decade ago, its lawyers have won 11 cases before the high court and lost only three (with two cases pending).
• Philip Morris USA Inc. v. Scott. Lead counsel Alan Untereiner and Mark Stancil. Robbins Russell attorneys saved the client a lot of money when the Supreme Court granted a stay of a $270 million judgment against tobacco clients in Louisiana state court. And the future looks bright: Justice Antonin Scalia wrote that it is “reasonably probable that four Justices will vote to grant certiorari, and significantly possible that the judgment below will be reversed.”
• Feesers Inc. v. Michael Foods Inc. Lead counsel Roy Englert Jr. and Glen Nager of Jones Day (argued). The 3d Circuit voted, 3-0, to reverse a judgment against Michael Foods Inc. and a co-defendant, also in the food service industry, for alleged antitrust violations under the Robinson-Patman Act. The matter was in litigation from 2004 to 2010; involved two trips to the 3d Circuit, which had ruled against Michael Foods on the first appeal; and was widely seen as likely to curb price discrimination in the food industry.
Eighty attorneys comprise Sidley’s appellate group, led by Carter Phillips, who has argued 71 cases before the U.S. Supreme Court. During the past two years, practice members have filed briefs in almost 100 cases in U.S. courts of appeals, presenting oral argument in more than 60% of them.
• CSX Transportation Inc. v. Alabama Department of Revenue. Lead counsel Carter Phillips (argued), Robert Hoch­man, Tacy Flint, Gary Feinerman. The Supreme Court ruled that CSX could challenge a state tax that applied to railroads but not their competitors. The Court remanded so that the lower court could consider whether the tax was in fact unfairly discriminatory.
• Fox Television Stations Inc. v. Federal Communi­cations Commission. Lead counsel Carter Phillips (argued), Mark Schneider, James Young, David Petron. In its second appearance before the 2d Circuit, Sidley won a broad ruling invalidating the FCC’s “decency standard.” The court ruled that applying the standard banning even a single “patently offensive” expletive and other profanity on broadcasts violated the First Amendment. Sidley represented lead plaintiff Fox.
• Henderson v. Shinseki. Lead counsel Eric Shumsky, Kathleen Mueller. Sidley’s amicus brief in support of a veteran whose paranoid schizophrenia prevented him from making a deadline for applying for disability benefits emphasized that the Veterans Administration claims process is not adversarial. The Supreme Court picked up on that point, ruling that his claim need not be dismissed on that technicality. The firm worked pro bono for the National Veterans Legal Services Program.
WILMER CUTLER PICKERING HALE AND DORR
Former U.S. Solicitor General Seth Waxman chairs the firm’s Supreme Court and appellate practices. Wilmer attorneys have argued more than 130 cases before the high court and more than 105 in the federal courts of appeals and state appellate courts. Its appellate lawyers work closely with attorneys from different practice groups and often advise other firms on appellate strategy.
• U.S. v. Goyal. Lead counsel Seth Waxman (argued), Jonathan Nuech­ter­lein, Mark Fleming, Carey Bollinger. The firm secured a reversal of former McAfee Inc. Chief Financial Officer Prabhat Goyal and a stinging rebuke to federal prosecutors in a high-profile corporate corruption case. The strategy was simply to argue that the accounting evidence didn’t support the conviction. The 9th Circuit agreed that the government had introduced “no competent evidence of materiality.” Chief Judge Alex Kozinski wrote, “Mr. Goyal had the benefit of exceptionally fine advocacy on appeal,” and expressed sympathy for the client.
• Centocor Ortho Biotech Inc. v. Abbott Labs. Lead counsel William Lee (argued), Matthew Jones, William McElwain, Amy Wigmore, Thomas Saunders, Arthur Coviello. The firm represented Abbott Labs in this successful appeal of the largest verdict in patent history (worth $1.67 billion in damages) and fended off a second suit seeking damages of a similar size. The appellate group convinced the Federal Circuit that Centocor’s patent claims for the drug Humira were invalid for failure to meet the written-description requirement.
• Jewish War Veterans v. City of San Diego. Lead counsel Matthew Jones (argued), Adam Raviv, Stephen Hut, Ryan Phair, Eric Columbus. Working with the American Civil Liberties Union, the firm persuaded the 9th Circuit that a 43-foot Latin cross, prominently displayed on federally owned land on Mt. Soledad in La Jolla, Calif., amounted to government endorsement of religion. While a cross wouldn’t necessarily be a problem, the court said, this one has an “imposing” cross that dwarfs “by every measure” the secular plaques and other symbols commemorating veterans.