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When Roy Englert Jr. finished his oral argument before the Supreme Court in Scheidler v. NOW on Dec. 4, he did not return to the same counsel table where he had started. Instead, he dropped back to the table reserved for lawyers arguing the next case of the day — and sat next to one of his law partners, Lawrence Robbins, who, like Englert, is a co-founder of D.C.’s Robbins, Russell, Englert, Orseck & Untereiner. Two Supreme Court arguments in one day. Not bad for a law firm that opened its doors only 19 months ago. But also not completely surprising. Four of the five name partners were defectors from the D.C. office of the firm now known as Mayer, Brown, Rowe & Maw, home of one of the best-known and largest Supreme Court practices anywhere. Four Supreme Court arguments so far in the firm’s life — two were earlier this year — are “in line with or more than we expected when we started. It’s gone very well,” says Englert, 44. The two-argument day was something of a vindication of their risky move toward independence. Adds the 50-year-old Robbins: “I didn’t conceive of starting this firm as a way to get more Supreme Court work. We had plenty of that at Mayer, Brown. But clients of all shapes and sizes don’t hesitate to come to us for Supreme Court and other work on account of the fact that there are only eight of us here. We’re getting the same kinds of clients we represented in a firm 100 times larger.” Clients like Napster, Ernst & Young, BellSouth, Amtrak, and the U.S. Chamber of Commerce have come, not only for Supreme Court representation but for a full range of trial and appellate work on issues ranging from antitrust to telecommunications. The firm — a lean operation with five partners and three associates — says it will bring in upward of $4.5 million this year. By staying small and flexible, the partners say, the firm is able to move quickly into whatever role clients are seeking them to fill. Representing longtime anti-abortion protester Joseph Scheidler before the Supreme Court was a case in point. Scheidler was referred to Robbins, Russell by another firm — Robbins and Englert won’t say which one — that wanted to represent Scheidler but had a policy against representing hot-potato clients in hot-button cases. “For us, it took all of two minutes to determine that it would be a fantastically interesting and fascinating case to take on,” says Robbins, though he adds that among the firm’s eight lawyers “we have more than eight points of view” on abortion. But the point, says Englert, is that “we didn’t have to poll 800 lawyers in offices around the world” before agreeing to represent Scheidler. Scheidler, along with Operation Rescue, was challenging the use of the Racketeer Influenced and Corrupt Organizations Act and the Hobbs Act as ways of punishing and preventing aggressive protests at abortion clinics. The Scheidler case tested the firm’s flexibility in other ways, as well. From the outset, partner Alan Untereiner, who has one Supreme Court argument — a win — under his belt from his Mayer, Brown days, was scheduled to argue the case for Scheidler and other protesters. But then, about a week before the argument, it became known that Solicitor General Theodore Olson would also argue in the case. The government’s position straddles both sides of the dispute. “The solicitor general arguing in a case always brings extra attention,” says Thomas Brejcha, chief counsel of the Chicago-based Thomas More Society, which represented Scheidler in lower courts. “It was at that point that we all felt, Alan and Roy included, that Roy would be the best to argue the case. He has the most experience.” Brejcha says the choice was not a slight to Untereiner, who briefed the case. But Englert, an alumnus of the solicitor general’s office in the last years of the Reagan administration, had argued 12 cases at the high court before this one, compared with Untereiner’s one. The switch to Englert on the Tuesday before Thanksgiving meant a long and solitary weekend at the office, Englert says. He had not been an active participant in briefing the case, and recently had been out of the country for several days, refereeing a judo competition in Korea. Englert has been doing judo since age 9 and has served in recent years as an Olympics-level referee. “It was a crazy few days preparing for the argument, but with the holiday I had a good block of quiet time to do it,” says Englert. He rehearsed with one moot court two days before the argument, then participated in a moot court put together for Robbins’ case. Englert more than held his own at oral argument, driving home the point, in his workmanlike style, that his clients could in no way be guilty of extortion under the Hobbs Act, because they did not take over possession of any property, namely the abortion clinics. Under questioning, he acknowledged “we’ve never disputed there were trespasses.” When Justice Sandra Day O’Connor said the demonstrators were guilty of “more than that,” Englert replied, “But not extortion.” Englert’s brief preparation failed him only once, when Justice John Paul Stevens asked him about People v. Barondess, an 1892 New York case on the definition of extortion that was cited in several briefs. Englert could not recall it well enough to answer the question. “It’s not coming to mind,” Englert confessed to the Court. Ever polite, Stevens asked it a different way, but still Englert could not conjure it up, and he chose not to fudge it. “As I stand here, I am blanking,” Englert said, living a moment that inhabits the nightmares of appellate advocates. “Would I like never to have had an embarrassing moment like that? Sure,” said Englert afterward. But he was able to recover, answering Stevens’ question during rebuttal. Untereiner, sitting with Englert at the table, knew the case cold. Then it was Robbins’ turn to argue on behalf of a controversial client, this time Ben Chavez, an Oxnard, Calif., police officer who questioned criminal suspect Oliverio Martinez after other officers had shot Martinez five times. No Miranda warning was given, but Robbins argued that no constitutional violation occurred because Martinez’s statements were never used at trial. Robbins too acknowledged his client had made mistakes and that police had used coercion. But Robbins argued that Chavez was entitled to qualified immunity from a Section 1983 lawsuit. In both cases, justices did not seem pleased about what Robbins, Russell’s clients had done, but the partners went a long way-perhaps all the way — in convincing the Court that the clients should not be punished in the ways envisioned by lower courts. The original five partners hired three other lawyers within months of opening their K Street offices. Two came from Mayer, Brown: Arnon Siegel, one of Justice Clarence Thomas’ first law clerks; and Kathryn Zecca, who will become a partner in January. A third, Sherri Wolson, came from the Department of Justice’s Antitrust Division. Robbins predicts “conservative growth” ahead, but the firm, with only four other staffers, is committed to staying small. Robbins and Englert are cagey about detailing the firm’s finances, estimating that their fees are neither the highest nor the lowest among top Supreme Court and Washington law firms. But Robbins did say, “At the end of this year, it will be clear that we will all have done better than we ever did at Mayer, Brown.” BOOK BAG Last year, aficionados of Supreme Court literature were awash in works spawned by the historic case Bush v. Gore. This holiday season, a more varied blend of books awaits, ranging from the historical to the hysterical. Leading the list are several books that constitute a “second wave” of works inspired by Bush v. Gore. Instead of focusing solely on that case, these books look more broadly at the Court’s legacy under Chief Justice William Rehnquist, even while it is still being fashioned. The book that has gotten the most attention is First Among Equals, an important though somewhat disappointing work by former Solicitor General Kenneth Starr. As the title suggests, Starr charts the development of the Court as an institution that defers to no one. Given Starr’s estimable conservative record, we have a pretty good idea of what Starr thinks about many of the cases he writes about. But too often, Starr stops short of saying what he really thinks, in the interest of coming across as the honest broker, the impartial analyst. Consider his bottom line on Bush v. Gore: “One is left with the impression that the Court, by virtue of its independence, remains aloof from the strong sense that it had usurped power and intruded into the province of both the states (or at least Florida) and the Congress in resolving the ultimate political question in American politics: who the president shall be.” Is that a compliment or a criticism? Hard to tell. Martin Garbus leaves no doubt about where he stands in Courting Disaster: The Supreme Court and the Unmaking of American Law. Like Starr, the noted First Amendment lawyer from New York charts the dominance of the Supreme Court in American life, but he sees it as a harbinger of doom. “As I write, the U.S. Supreme Court is seizing power, and in doing so it is radically changing the law and this country,” Garbus exclaims in his opening line, and sounds the alarm on every ensuing page. The usual demons are catalogued; to hear Garbus tell it, the Federalist Society is the mastermind behind the ruination of the Court and the judiciary. If you believe we are headed to hell in a handbasket, Garbus’ apocalyptic view will give you confirmation; if you think the Court, and the republic, can survive periodic swings to the right or the left, the book gets tiresome. Also hot off the presses is a crisper liberal critique of the Court, The Rehnquist Court: Judicial Activism on the Right, a collection of essays edited by American University law professor Herman Schwartz. Advocates, including Alan Morrison, Stephen Bright, Charles Ogletree Jr., Chai Feldblum, and William Taylor, dissect different areas of Rehnquist jurisprudence. In their own way, they are sometimes as pessimistic as Garbus. But they are more grounded in their subjects and deserve attention. Another valuable collection of essays, also entitled The Rehnquist Court, came out early this year, this one edited by University of Tulsa School of Law Dean Martin Belsky. It follows earlier books on the Warren and Burger courts initiated by the late great Tulsa Supreme Court scholar Bernard Schwartz. John Noonan Jr., senior judge on the U.S. Court of Appeals for the 9th Circuit, skeptically zeros in on the Court’s federalism jurisprudence. In Narrowing the Nation’s Power: The Supreme Court Sides with the States, Noonan takes on the daunting task of making the subject of federalism come alive. And he succeeds, by telling the human stories behind City of Boerne v. Flores, Kimel v. Florida Board of Regents, and United States v. Morrison, among others. His imaginary dialogues with “Harvardman” and “Boaltman” and his whimsical consultations with the law firm of Fish, Frye & Ketchum seem contrived at first, but bolster his criticism of the federalism trend. Two historical works from 2002 are well worth noting: Some Memories of a Long Life, by Malvina Shanklin Harlan, the wife of the first Justice John Harlan, and The Forgotten Memoir of John Knox, by a 1936 law clerk to the disagreeable Justice James McReynolds. Both offer priceless glimpses into life at the Supreme Court that we rarely get from the justices themselves. The year began with Lazy B, a remarkable memoir by Sandra Day O’Connor and her brother Alan Day of their other-worldly childhood on the Lazy B ranch in Arizona. An astonishingly unkind review in the Chicago Tribune pronounced the book a “scary window” on O’Connor’s psyche, and “as repellent as a wagonload of ocotillo [cactus] plants.” It is anything but repellent, offering instead an unflinching look at a hard but rewarding youth that molded the nation’s first female justice. As the year ends, two new works are must buys for Supreme Court buffs. One is a two-CD-ROM update of “The Supreme Court’s Greatest Hits,” the 1998 compilation of oral argument audio that was the brainchild of Northwestern University political science professor Jerry Goldman. The new version includes Bush v. Gore and several other recent cases, as well as an entirely new feature: justices’ announcements from the bench of many of the most important cases of the last 40 years. The other brand-new work looks at oral argument from the advocates’ viewpoint. Supreme Court and Appellate Advocacy: Mastering Oral Argument, by David Frederick of the D.C. firm Kellogg, Huber, Hansen, Todd & Evans, gives invaluable advice about preparing and arguing Supreme Court cases, nestled among great anecdotes about the high and low points of Supreme Court advocacy. For the aspiring, novice, or veteran Supreme Court advocate, there can be no more useful gift. In a foreword to Frederick’s book, Justice Ruth Bader Ginsburg recounts Justice Joseph Story’s advice to advocates: “Short be your speech, your matter strong and clear. And leave off, leave off when done.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times.

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