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WORST-CASE SCENARIOS Call it coincidence, but in the same week that a big chunk of marble fell from the front facade of the Supreme Court, a heavyweight panel of thinkers convened in Washington to contemplate what would happen if all nine justices of the Supreme Court were to be killed at once. Speakers had 9/11 and Tom Clancy-type scenarios in mind, not architectural malfunctions. But whatever the cause, the questions raised are substantial, and the solutions elusive. American Enterprise Institute scholar Norman Ornstein, who has been the Paul Revere on such “continuity of government” issues since 9/11, acknowledged during the discussion on Nov. 30 that when he first started mulling nightmare scenarios, the Supreme Court was not high on his list of concerns. Ornstein was more worried about a fuel-laden jet plowing into the Capitol during the State of the Union address or, just as scary, a well-placed briefcase nuclear device going off during a presidential inaugural, wiping out the incoming and outgoing presidents as well as most of the line of succession.
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But the more he thought about the issue, Ornstein said, the more important the Supreme Court became. For one thing, unlike with the other two branches, there is no provision for quick replacement of Supreme Court justices. Members of Congress are somewhat fungible; the stock can be replenished by governors and elections away from a devastated Washington, D.C. As for the presidency, there is a clear line of succession. But there is no such thing as a backup Supreme Court justice. It’s the nine robed ones or no one. More important, Ornstein realized that several of the doomsday scenarios that could be imagined might pose horrific legal and constitutional issues that would need to be resolved quickly by a credible Supreme Court in the wake of an attack. In his Inauguration Day-attack scenario, for example, Ornstein wonders what would happen if, say, the Texas congressional delegation were delayed getting to the ceremony and suddenly wound up being all that is left of Congress. Could it, as a sort of rump legislature, then elect a new majority leader who would instantly become president, supplanting whatever members of the outgoing president’s Cabinet who might have survived? A legal battle could break out between two or more people claiming to be president. Perhaps more realistically, legal issues could arise from whatever declaration of war or suspension of habeas corpus that results from the attack on the nation. Suddenly, Ornstein said, the need to reconstitute the Supreme Court after an attack became “much more urgent” to contemplate if a new government is to have any claim to legitimacy. Ornstein spoke at a discussion sponsored by George Mason University School of Law’s Critical Infrastructure Protection Program and the American Bar Association’s Standing Committee on Law and National Security. A commission sponsored by AEI and the Brookings Institution issued a report in 2003 on continuity issues facing all three branches, but Ornstein reported with disgust that “virtually nothing” has been done by policy-makers even though four years have passed since 9/11. He favors an arrangement whereby the chief judges of the federal circuits would be pressed into service when membership of the Supreme Court falls below the quorum of six justices. George Mason professor Ross Davies offered some ingenious solutions that would require passage of statutes expanding the size of the Supreme Court. But Davies was not suggesting an FDR-style Court-packing scheme. Congress can, by statute, set the number and qualifications of Supreme Court justices, so Davies suggested the appointment of several justices with one extra qualification: They would serve only if the Supreme Court drops below a quorum. Alternatively, retiring justices like Sandra Day O’Connor could keep their positions but would be recused from their duties unless the Supreme Court drops below a quorum. Short of these weighty and controversial measures, Davies also suggested short-term steps to reduce vulnerability, such as encouraging justices to work at home or in non-D.C. locations when possible, in order to limit the number of occasions when all nine justices are in one place. But Ornstein said the resulting loss of face-to-face contact and collegiality might be too high a price to pay. James Duff, managing partner of Baker Donelson and former administrative assistant to the late Chief Justice William Rehnquist, also spoke, reviewing several options that have been advanced to cope with a decimated Supreme Court. The use of chief circuit judges as an emergency Court would probably require a constitutional amendment, Duff said, unless it is constituted by Congress as an actual court unto itself. Another idea Duff mentioned that would also require amending the Constitution is appointing a “reserve” or “junior varsity” Supreme Court that would be ready to take the place of the justices after a catastrophe. The downside of these options, Duff said, is that the public might question the legitimacy of these substitute courts and their rulings. In the end, Duff endorsed the status quo as the best solution, though it relies on the ability of the other branches to reconstitute themselves quickly so that a president could appoint new justices and a Senate could rapidly confirm them in the conventional way. In the aftermath of a disaster, Duff predicted the president and the Senate would act quickly and responsibly to confirm a new Court that would not be overly partisan. Duff and John Cooke, the deputy director of the Federal Judicial Center, pointed to an additional concern if the entire Court were to be wiped out. By statute, the chief justice, or the most senior associate justice in his place, has substantial administrative power over the judicial branch. For example, Cooke said that only the chief justice is authorized to reassign lower court judges to different courts — the very task that might be necessary if, say, the judges of the D.C. Circuit or the D.C. district court were wiped out in the same attack. If the entire Supreme Court were gone, no real or acting chief justice would be around to make those reassignments. Cooke, too, felt that in the end “we could get a Supreme Court fairly quickly” the traditional way if the president and the Senate were able to re-establish themselves expeditiously after an attack. But on one point, all the panelists agreed: All three branches of government must resume their post-9/11 debate over what to do if the unthinkable happens. “It is irresponsible,” Ornstein said, for policy-makers to leave the public without “an insurance policy” against the loss of the federal government’s leaders. INK STAINS When former Stanford Law School Dean Kathleen Sullivan rose to argue on behalf of Independent Ink Inc. in a high-stakes intellectual property and antitrust case at the Supreme Court on Nov. 29, it seemed like a natural fit. The ink company is based in California, and Sullivan, by affiliating herself with the California firm Quinn Emanuel Urquhart Oliver & Hedges last year, has catapulted quickly to the ranks of top Supreme Court advocates, where few other West Coast attorneys can be found. But there is more to the story, according to Independent Ink President Barry Brucker. Brucker says that Sullivan is “a brilliant Supreme Court litigator who did an amazing job” at oral argument. But in the months leading up to the argument, Brucker says, he was stunned by how hard it was to find a D.C. Supreme Court practitioner willing to take on his case and thereby go up against an intellectual property community solidly arrayed against him. Brucker’s company sells ink that can be used with printheads made by Illinois Tool’s Trident division. He accused Trident of illegal “tying” under the Sherman Act, because the company requires customers to buy its unpatented ink along with its patented printhead. The U.S. Court of Appeals for the Federal Circuit sided with Independent Ink, reluctantly invoking a Supreme Court precedent under which a patent is presumed to give its owner the “market power” that makes it vulnerable to an antitrust claim. As amicus curiae briefs flowed in, Brucker estimated that companies worth more than $1 trillion, from Pfizer to Verizon, were lined up against him, trying to kill off the presumption because it makes patent holders easy targets. Brucker realized he needed a Supreme Court specialist. “You don’t go to a general surgeon for brain surgery,” says Brucker, who is also a member of the Beverly Hills, Calif., City Council. He first made contact with Jeffrey Lamken, head of Baker Botts’ Supreme Court and appellate practice in Washington. Lamken was conflicted out because his firm represents a company related to Illinois Tool, but he gave Brucker the names of other specialists — about 20 in all. “I called every one of them,” says Brucker. But he was turned down by almost all — some because of a direct conflict, but most because of what he says turned into “a broken record of paranoia.” Lawyer after lawyer told him that opposing the patent holders’ position “would not be looked on favorably by my client base,” Brucker quotes them as saying. Eventually, he looked elsewhere and found an enthusiastic Sullivan, who was willing to represent his “little train that could” for a reduced rate. Lawyers knowledgeable about the case and about intellectual property law were divided over Brucker’s claims. Jonathan Rubin, a D.C. solo practitioner who wrote a brief on Brucker’s side for the American Antitrust Institute, agrees that “there’s a kind of absolutism in the IP community these days” that would leave many law firms reluctant to cross patent holders by representing Brucker. Another lawyer familiar with the case, who did not want to be named, counters that there is no such orthodoxy in the IP legal community, especially at large firms that can represent a spectrum of clients without fear of reprisal. But another lawyer says that large D.C. firms are in fact intimidated by increasingly powerful IP clients. “There is a fear that a client can punish you, especially at the mega-firms where it is hard to move in any direction without stepping on somebody’s toes,” says this lawyer. “That’s not how it’s supposed to work.”

Tony Mauro can be contacted at [email protected].

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