Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The first time Warrington Parker III had the opportunity to visit the U.S. Supreme Court, he made it as far as the door. “I left,” the San Francisco-based Heller Ehrman partner says. “I thought: The time I want to go in is the time I’m there on a case.” Earlier this month, Parker got that chance. He walked past the marble columns, through the doors and to counsel’s table for one of the most anticipated arguments of the term � Rumsfeld v. Forum for Academic and Institutional Rights � concerning the constitutionality of the Solomon Amendment, which requires law schools to give equal campus access to military recruiters as a condition of receiving federal funds. The federal law conflicts with the Association of American Law Schools’ formal policy against allowing law students to be recruited by employers who discriminate on the basis of sexual orientation. The government appealed to the high court after the Third Circuit U.S. Court of Appeals issued a preliminary injunction against enforcement of the law, holding that it likely violates the First Amendment. Parker anchored FAIR’s trial team with New York Heller Ehrman partner E. Joshua Rosenkranz, who argued the case before the court. Rosenkranz was founding president and CEO of the Brennan Center for Justice at New York University School of Law before joining Heller Ehrman in 2003, the same year Parker joined the firm. It was also the same year that FAIR, a coalition that has now grown to represent 38 law schools, was formed for the purposes of bringing the suit. Rosenkranz was approached by law school professors, Parker says, “about the way military recruiters were treating the law schools career services [offices].” “The problem the schools were having is that they were afraid to file a lawsuit,” Parker says. “They were concerned that they would be bad-mouthed in the press, that their schools would come up for public ridicule before Congress, or that there would be more aggressive steps taken. “I didn’t enter this case thinking it was a Supreme Court case,” he says. “I entered this case because I thought it was interesting. I thought I would learn a lot. I entered this case because I thought we were right.” Parker is hesitant to characterize the FAIR suit as a test case for pitting university anti-discrimination policies against military interests, because he says he doesn’t feel that’s how the justices will approach it. “If this were about race or gender, there would be no pitting. There would be no question,” he says. “What is below all of this, which is unstated,” is the idea “that a law school’s position on sexual orientation does not matter as much as race or gender discrimination,” he says. Parker, a past editor of the Harvard Law Review and former assistant U.S. attorney whose practice at Heller Ehrman centers on white-collar criminal defense and appellate work, credits the firm’s pro bono policy for giving him the leeway to work on FAIR’s case. “There were some weeks where it would take up my entire week. Particularly toward the beginning of the case,” and during the briefing for the Third Circuit and the Supreme Court, he says. “But because of the way the pro bono policy is set up, I don’t think of it as taking away from my billable work. It’s just part of my work.” On the morning of Dec. 6, the day of the high court argument, Parker appeared on C-SPAN’s “Washington Journal” program to debate Capt. Gerald Walpin, director of the Center for Individual Rights, an organization that supports the government’s position in the case. “It was a fascinating experience, because you have two people who have very opposite views, and a call-in format, which I didn’t expect,” he says. One caller from Massachusetts, who had served in the military, offered a viewpoint that Parker likely didn’t expect as well: “The gentleman here representing FAIR seems like a nice man, a very bright man. But this organization has � I would say, probably not him � but a good many Bolsheviks in it.” Unfazed, Parker told the caller: “I appreciate being called a nice man.” After the C-SPAN debate, Rosenkranz and Parker arrived at the court, where Parker says the experience did not disappoint. “I’ve made Ninth Circuit arguments, court of appeal arguments. And those are equally smart arguments, equally tough arguments,” he says. “But there’s a certain aura the Supreme Court has. There is a consideration for the weight of what’s being done there.” Because of the extensive preparation for the oral argument, Parker says he didn’t anticipate any big surprises in the kinds of questions the justices asked Rosenkranz. “For a Ninth Circuit case, you may do two moot courts. Some people don’t do any. For a Supreme Court case, you do many more moot courts and you also bring in people who have appeared before the Supreme Court,” he says. “The preparation for oral argument was much, much more extensive than anything I’d seen.” What did surprise Parker was “the number of different angles the justices seized on. Justice [Antonin] Scalia seized on one. Justice [John] Roberts had another. That was more interesting to me than anything else. And it made for a tougher argument.” The issues at stake in the suit drew the interest of a large number of parties, and more than 30 amicus curiae briefs were filed with the court. “There’s a measure of coordination,” among the amicus filers in a Supreme Court case, Parker says. “You do talk to people and they’ll say, ‘I’m interested in writing an amicus brief. What needs to be covered?’ And then you say: ‘Here’s a list of ideas that we have.’” Whatever the outcome of the highly watched case, the issues may be far from settled, Parker says. “If the justices rule against us, depending on the way the justices write the opinion, we have the opportunity to go back down and work through this case at a trial level phase, in the fact development phase,” he says. “If we win, I don’t know what the government’s next step will be.” Parker’s prediction is that whichever way the court rules, “there’s a very good chance that one of these law schools will end up back in court because the military will have asked them to do something that is just a step too far,” he says. Parker slipped right back into his regular practice when he returned from Washington, D.C. “I went to the Supreme Court Tuesday, flew home Tuesday night, and on Wednesday I was appearing in California superior court on a matter that would never make the news and no one has heard about,” he says. “And I accord the courts equal respect,” Parker says. But a Supreme Court case, he says, is “quite a different experience.” Laurel Newby is a reporter with a Recorder affiliate.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.