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Thomas Goldstein has accomplished a rare feat for any attorney: He has found a new and astonishingly successful way to practice his specialty. In 1999, Goldstein founded Goldstein & Howe as a Supreme Court litigation boutique on a premise that was in some ways blindingly obvious but that no one else had acted upon. His theory was that there are a significant number of cases in each term of the Supreme Court that the justices might just agree to consider — if only a lawyer would ask them to. “I thought there were many opportunities to bring cases to the Supreme Court that no one was taking there,” says Goldstein. “The reasons that the Court takes cases have nothing to do with the reasons that lawyers want them to take cases. The Court cares about circuit conflicts, and I built my practice around circuit conflicts.” Goldstein, a graduate of American University Washington College of Law, got his start as a Supreme Court watcher when he interned for Nina Totenberg of National Public Radio during law school. He started compiling the votes of the nine justices and the frequency with which each agreed or disagreed with his or her fellows. From the detailed data on the justices’ coalitions, it was only a short step to undertaking another compilation project: a painstaking review of thousands of rulings from the federal appeals courts to search for conflicts among them that might lead to grants of Supreme Court review. After a clerkship for Judge Patricia Wald of the U.S. Court of Appeals for the D.C. Circuit, Goldstein did stints as an appellate lawyer at the D.C. offices of Jones Day and Boies & Schiller (now Boies, Schiller & Flexner) before setting up Goldstein & Howe five years ago with his wife, Amy Howe, a former associate at Steptoe & Johnson. At Goldstein & Howe, Goldstein can put his theory into action. When he finds what he sees as a promising circuit conflict, he will often call the lawyer who lost the case below and suggest that his Supreme Court boutique might be able to file a successful petition for certiorari and get the Court to consider the case. (Goldstein helps Legal Times prepare Conference Call, a regular column that seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues.) Traditionalists in the Supreme Court bar say they would not troll for cases in this manner, but Goldstein has clearly found a niche: Still only 34 years old, he has already argued 11 cases in the Court, including three in the just-completed term. And Goldstein has formed some important alliances. He works frequently with Harvard Law professor Laurence Tribe and sat as second chair to Tribe in the 2000 Supreme Court arguments in Bush v. Gore. And along with Stanford Law professor Pamela Karlan, Goldstein has established a Supreme Court litigation clinic at Stanford Law School where students draft petitions for certiorari and function as a small appellate law firm. Thus far, says Karlan, three of the clinic’s petitions have been granted by the Court. “Tom is incredibly entrepreneurial and has a great nose for where the Court is going,” says Karlan. “He is also a very clear writer and has a very good sense of how to put a brief together.” Goldstein also gets high grades among business advocates. “It is very important for us to identify lawyers who have an appreciation for how business works, and Tom quickly understood all our issues and how they fit into the company’s priorities,” says Jim Carter, general counsel of Nike Inc. Goldstein played a significant role in writing Nike’s brief in Nike Inc. v. Kasky, in which the shoe company was sued by activists for making allegedly misleading statements in its public relations campaigns. In June 2003, the Supreme Court chose to dismiss the case as improvidently granted and did not address the merits. Goldstein says one of the highlights of his Supreme Court career was the 2001 case of Bartnicki v. Vopper, a 6-3 ruling that the First Amendment protects the disclosure of the contents of an illegally intercepted wiretap. Seth Waxman, then the solicitor general, argued the case for the U.S. government against Goldstein. “Seth was unbelievably good [at oral argument],” says Goldstein. “But I had the better side.”

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