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The last time Kenneth Geller argued more than two cases before the U.S. Supreme Court in a single term was 1985, when he was working in the solicitor general’s office representing the government. But Geller argued three cases in the term that has just ended for the summer, and his partners at Mayer, Brown, Rowe & Maw argued still more. The total of seven, says Geller, is unprecedented in the history of the firm, which was one of the first to specialize in Supreme Court appellate work 21 years ago. “I can’t recall a term when we’ve been to the Supreme Court this much,” says Geller. “It’s good for morale.” With typical understatement Geller adds, “I attribute it to chance. We didn’t set out to say we need [a specific number of cases] at the Court this term.” Chance may have helped Mayer Brown roar back to the highest levels of high court practice, but an increasingly important trend seems just as influential: Fewer and fewer firms are handling more and more of the Supreme Court’s shrinking number of cases. Clients are turning to reliable veterans at Mayer Brown and Wilmer, Cutler & Pickering, which had six arguments this term, as well as Jenner & Block and Sidley Austin Brown & Wood, both of which argued five cases. Two upstart firms — Robbins, Russell, Englert, Orseck & Untereiner and Goldstein & Howe — also had a good year and have established themselves as serious Supreme Court players. “The ascendancy of the repeat players is continuing,” says Roy Englert Jr. of Robbins Russell, which argued three cases. “General counsel are becoming more consistently comfortable with the idea of hiring a repeat player to present their Supreme Court arguments. But there are also firms trying to get the cases and aggressively selling their credentials as repeat players. It’s a two-way street.” Traffic was busy on that street this term, with key lawyers getting in and out of Supreme Court practice and some firms scrambling to keep pace. Somewhere in the shifting matrix also lies opportunity for newcomers to grab a piece of the prestigious action, some veterans say. “This would be a great time for new talent to break through,” says E. Barrett Prettyman Jr., of counsel at Hogan & Hartson, a longtime Supreme Court practitioner and watcher. “The barriers to entry, so to speak, are there, but not necessarily extreme,” says Glen Nager of Jones Day, which had three arguments this term. “The solicitor general’s office produces a new group [of potential private-sector Supreme Court advocates] every few years.” Both Hogan and Jones Day are dealing with the recent departures of two leading Supreme Court advocates: Hogan’s John Roberts Jr., now a judge on the U.S. Court of Appeals for the D.C. Circuit, and Jones Day’s Jeffrey Sutton, who now sits on the 6th Circuit after a contentious confirmation process. Meanwhile Gibson, Dunn & Crutcher’s Thomas Hungar, who was working to build up the firm’s high court practice after Theodore Olson left to become solicitor general in 2001, has himself followed Olson into that office, as deputy solicitor general. “Two of my former co-chairs have been plucked away,” says Theodore Boutrous Jr., co-chair of Gibson Dunn’s appellate and constitutional law practice. “But Miguel [Estrada, nominated to the D.C. Circuit,] is still practicing with us, and many others, so we are a strong group. Sooner or later, turnabout is fair play, and we will steal people back.” Gibson Dunn argued no cases this term. Hogan is said to be hunting for a top name to replace Roberts, but partner Jonathan Franklin won’t confirm that. “Judge Roberts’ extraordinary talents will be missed, but we still have some incredibly talented attorneys in the appellate practice.” Franklin adds cryptically, “We will be looking to expand the talent with other talent.” As big names left this term, others returned to the scene in a big way — most notably Clinton administration Solicitor General Seth Waxman, now at Wilmer Cutler, who argued four cases this term. In one, Beneficial National Bank v. Anderson, the counsel of record was Arnold & Porter — not exactly a novice — but the bank went to Waxman to take on the argument. He might have argued more cases this term, others say, but lost some coin tosses with co-counsel. “Seth is the dominant force in the Supreme Court Bar, without question,” says Goldstein & Howe’s Thomas Goldstein, who argued two cases this year. Lawyers recruited from the Solicitor General’s Office and other parts of the Justice Department often work with Waxman — Edward DuMont, Jonathan Neuchterlein, Randolph Moss, Paul Wolfson and David Ogden, among others. Jenner & Block also came on strong this term with what Englert describes as the “dynamic duo” of Paul Smith and Donald Verrilli Jr., who argued two cases each and are two of several co-chairs of the firm’s appellate and Supreme Court practice. Partner David DeBruin argued another. The firm had been perceived to be in somewhat of a stall after the death of its widely admired Supreme Court advocate Bruce Ennis Jr. in 2000. The biggest Jenner win of the term was the gay rights case Lawrence v. Texas, destined to be a landmark of the decade if not the century. Smith, who argued the case, was gratified by the victory and by the fact that the firm had argued five cases — with at least three more lined up for next term. “You sort of worry that it’s a bubble, but now I think we are on the map again,” he says. Mayer Brown’s strong year was also marked by a landmark case, American Insurance Association v. Garamendi, in which Geller argued successfully that a California law aimed at helping Holocaust victims’ families recover overseas insurance claims interfered with the president’s conduct of foreign policy. “It was the only case I’ve ever argued where I handled it at the district court, appeals court, and Supreme Court level,” says Geller. “There was a real feeling of accomplishment.” Most of the time, Supreme Court cases come to the firm at the appeals stage, Geller says. “Clients are becoming much more sophisticated. There is a perception that when you are heading to the Supreme Court, you need someone who knows his or her way around,” he notes. Timothy Bishop, another Mayer Brown partner who argued this term and who has had five straight certiorari petitions granted in recent years, agrees. “Most lawyers do not have a lot of experience with the Supreme Court,” he says, “and they recognize that there is an art to getting cert granted, an expertise that helps you get there and [helps you] once you are there.” This term, several justices fed that perception, perhaps unwittingly, when they repeatedly referred to a key amicus curiae brief in the University of Michigan affirmative cases as “the Phillips brief,” referring to Sidley Austin high court veteran Carter Phillips — even though he was not counsel of record on the brief, and clients like retired Gen. Norman Schwarzkopf and former Defense Secretary William Cohen were arguably better-known. The oral arguments, which were widely broadcast right after they took place April 1, sent an unmistakable message to lawyers and clients who picked up on the reference to Phillips: having the name of one of the Supreme Court’s tight club of advocates on the face of your brief makes a difference. DOUBLE PLAY A few hours before Justice Sandra Day O’Connor was nearly bonked on the head by a falling frame at the dedication of the National Constitution Center in Philadelphia on July 4, she was involved in something else almost as improbable and unexpected. O’Connor and Justice Stephen Breyer sat down before cameras to tape an interview with George Stephanopoulos, host of the ABC News Sunday show “This Week With George Stephanopoulos.” The interview aired July 6. For the first time in recent memory, if not ever, two justices sat for nearly a half-hour talking informally with a broadcast news journalist, offering rare glimpses into how the Court deliberates and how the justices interact. Though O’Connor has been frequently visible on talk shows in recent months discussing her new book, this time her book was barely mentioned. And she was joined by Breyer, who often talks publicly on the law school circuit but rarely on network television. So how did the unthinkable joint interview come about? Stephanopoulos said in an interview last week that the opening of the National Constitution Center helped open the door. ABC News had decided to give extensive coverage to the event. ABC was working with staff members at the center, and Stephanopoulos learned that Justices O’Connor, Breyer and Antonin Scalia were planning to be on hand for the event. Knowing that O’Connor would be presiding over the opening ceremony, Stephanopoulos talked briefly on the phone with her a month or so ago about a possible sit-down interview. “It went well, I think,” he said. He then called Breyer and suggested the idea of interviewing both of them separately in Philadelphia. But during the conversation, Stephanopoulos said, “Justice Breyer suggested, ‘Why don’t Justice O’Connor and I do it together?’” Breyer put Stephanopoulos on hold to call O’Connor. Soon, Breyer was back with a “yes” from O’Connor, and the plan was made. What about Scalia, who often bars video cameras from his public appearances? Stephanopoulos said he knew that approaching Scalia would not be fruitful, based on initial soundings made by center staffers. “I didn’t try,” he said. Stephanopoulos worked with editorial producer Ilana Marcus to craft questions that the justices could answer without discussing specific cases in detail. The homework paid off, and the justices revealed a fair amount without waving off any questions and without getting too technical. Viewers, who rarely if ever see justices on the tube, responded enthusiastically, said Stephanopoulos. “I’ve never had a more powerful reaction to an interview,” he adds. “People were very interested to learn how the Court works.” Nonetheless, Stephanopoulos doesn’t expect other justices to follow suit. But, he said, “I’ll extend an open invitation to all of them through your column.” He added, “I think they saw it as a one-shot opportunity to help the Constitution Center.” DISSING ERISA Memo to all lawyers: It’s OK to complain about how boring ERISA cases are. The reason? Chief Justice William Rehnquist agrees. Rehnquist made the offhand confession in his annual talk to the 4th U.S. Circuit Court of Appeals recently. As he does every year, Rehnquist spotlighted the little-noticed decisions of the term. One he picked out was Kentucky Association of Health Plans v. Miller, which held that Kentucky’s “any willing provider” law affecting HMOs was pre-empted by ERISA (also known as the Employee Retirement Income Security Act of 1974). Rehnquist described the law at issue in the case as “The Employee Retirement, etc. law,” explaining that “you get so used to these acronyms that you forget what they stand for.” Rehnquist went on to say that the Court has handled several cases per term involving ERISA for nearly 30 years. “The thing that stands out about them is that they’re dreary,” Rehnquist said. Why does the Court grant review in them? “It’s duty, not choice,” is how Rehnquist put it. Footnote: As usual, Rehnquist adapted the phrasing of 18th century poet Thomas Gray to describe his catalog of little-noticed cases as “flowers born to blush unseen and waste their sweetness on the desert air.” But this year Rehnquist turned up the metaphorical heat, also describing them as “Cinderella” cases, which he defined as those cases “left behind to clean the stove while the constitutional cases go to the ball.” It is safe to guess that the term’s blockbusters, Grutter v. Bollinger and Lawrence v. Texas, both of which left Rehnquist in dissent, were the ugly constitutional stepsisters he had in mind. Besides the Kentucky case, Rehnquist’s Cinderella cases were Illinois ex rel. Madigan v. Telemarketing Associates, Desert Palace Inc. v. Costa, and Howsam v. Dean Witter Reynolds Inc. Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. “Courtside” appears every other week. Mauro can be reached at [email protected]. Legal Times intern Laura Lacci contributed to this report.

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