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When Carter Phillips rose to argue in the case of Intel Corp. v. Advanced Micro Devices Inc., on April 20, it was his fifth Supreme Court oral argument of the term, but something of a first for the Court itself. Phillips, managing partner at Sidley Austin Brown & Wood, was representing the Commission of the European Communities as amicus curiae to Intel in the closely watched international discovery dispute. The Court grants argument time to amici only rarely — except for the solicitor general and an occasional state government — and never before, Phillips believes, to a foreign governmental body. That privilege might have been accorded to a lesser-known lawyer from Brussels — or Biloxi, for that matter — but maybe not. The Court’s grant of time to Phillips can be read as yet another sign, amply reinforced last term, that the Court likes to hear arguments from familiar voices. And Phillips’ calming locutions are certainly well-known to the justices; he has argued there 42 times. When he filed the motion in February seeking argument time in Intel, Phillips told the Court he would make the presentation. When asked whether identifying himself as the advocate made a difference in the Court’s decision to grant argument time, Phillips says with modesty, “What effect, if any, that had on the Court is beyond me.” But the term just ended makes it clear again that a Court whose members have been together for nearly 10 years is being addressed more and more by veterans with multiple cases. Arguing before Phillips in Intel that day, for example, was Seth Waxman of Wilmer Cutler Pickering Hale and Dorr who was also arguing his fifth case of the term — almost as many as he routinely argued as solicitor general in the Clinton administration. As it turned out, the Court rejected both their positions and ruled against Intel, but it was still another notch on their well-worn belts. Also topping the list among private practitioners are Donald Verrilli Jr. and Paul Smith, two partners at Jenner & Block who each argued two cases last term, and Goldstein & Howe’s Thomas Goldstein, who argued three. Mayer, Brown, Rowe & Maw, where the Supreme Court work tends to be spread around among more partners and associates, handled three arguments last term. “It’s clearly true that more and more sophisticated clients are looking to the lawyers who’ve been there time and again,” says Phillips, who has also noticed a self-perpetuating aspect to the trend. When one side in Supreme Court litigation picks a titan like Waxman or O’Melveny & Myers’ Walter Dellinger, Phillips says, that gets the attention of the other side, which then makes sure it hires an advocate of equal caliber. Phillips points to the January argument in Engine Manufacturers Association v. South Coast Air Quality Management District, No. 02-1343, where he went up against Waxman, as a possible example of that phenomenon. The Court’s stability is another factor driving clients to pick the veterans, Phillips suggests. “We know them pretty well,” Phillips says of the justices’ writings and temperament. Lawyers who have been litigating before the Court for years know the dynamics among the justices and the arguments and style that will appeal to each of them at both the petition and oral argument stages. Goldstein thinks the exclusivity of the Supreme Court Bar has gotten to the point where “Seth, Carter, and the people at Mayer, Brown have cornered the market on well-financed corporate litigation at the Supreme Court.” The impending return of Solicitor General Theodore Olson to the D.C. office of Los Angeles’ Gibson, Dunn & Crutcher will add another top player to that mix, Goldstein notes. “The market has gotten so aggressive that it’s really hard for someone to emerge, to get off the ground,” says Goldstein, who first argued a case before the Court just five years ago. For his part, Waxman is less certain of the trend, arguing that it is still possible for newcomers to break into the pack of high court practitioners. He points to Jeffrey Fisher, the fifth-year associate in the Seattle office of Davis Wright Tremaine who debuted at the Court last term, arguing and winning two blockbuster criminal cases — most notably Blakely v. Washington, the case that has federal and state sentencing systems in turmoil. But Waxman agrees that he himself has never been busier. “I turned away two cases today,” Waxman said at the end of a long day at the office. “Everyone in litigation worries about the day the phone stops ringing. It hasn’t happened yet.” Before every oral argument, of course, enormous preparation is required. And Waxman has argued at numerous other federal and state courts besides the Supreme Court in the last year. “There’s a lot rocking and rolling,” says Waxman. “Appellate litigation is alive and well.” But there is nothing quite like arguing at the Supreme Court, which he describes as a “real personal highlight.” Waxman adds, “I guess I’m addicted to walking the tightrope.” TALES OF HOFFMANN Eagle-eyed readers of the June 14 decision in Hoffmann-La Roche v. Empagran, No. 03-724, noticed that in the bench opinion issued that day, the Court couldn’t quite decide how to spell the appellant’s corporate name. The front page of the syllabus or summary of the opinion, carrying the first mention of the name, spelled Hoffmann with only one “n.” Inside, the opinion itself spelled it with two. Which one is correct? Stephen Shapiro of Mayer, Brown, Rowe & Maw, who argued the case to the Court on behalf of the company, replied, “I’m glad I didn’t get asked this question during argument.” He referred the query to the company’s lawyers at New York’s Davis Polk & Wardwell. The correct spelling is the two-n version, according to associate Kathryn Kinkade. “We will alert the reporter to this error,” she said in an e-mail. The reporter in question would be Court’s reporter of decisions, who in the small type at the top of all rulings offers an open invitation to report errors in the first printing of decisions, so that the final version that goes into the bound U.S. Reports is as error-free as possible. Court officials say lawyers and members of the public respond to the invitation regularly — though it is rare that the spelling of the title of the case is in question. The spelling problem in the closely watched international antitrust case appears to have originated in the courts below. Both the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit use the one-n spelling, and some of the briefs filed with the Supreme Court repeated the error. The episode recalls a more famous misspelling in Supreme Court history. The infamous 1857 Dred Scott decision is officially known as Scott v. Sandford — even though the person sued by slave Dred Scott was named John Sanford, without the first “d.” A clerical error in courts below was perpetuated in the Supreme Court’s decision. Shapiro, himself an aficionado of Court arcana and co-author of the practitioner’s bible Supreme Court Practice, thinks the same thing won’t happen in Hoffmann-La Roche. “My bet is that this will get corrected and will be recalled as corrected,” Shapiro says. “This is a nit-picky age.” BLACKMUN AND TUROW The recently released papers of the late Justice Harry Blackmun reveal what his friends and correspondents already knew well: how much time and care he gave to personal correspondence, even with people he did not really know. One notable letter in his files at the Library of Congress dates back to 1979, when Blackmun related his love and concern for Harvard Law School to Scott Turow, author of the then-recent bestseller One L, a memoir of Turow’s first year at Harvard Law. By way of introduction, Blackmun wrote in the letter that his daughter Nancy had asked Turow to autograph a copy of the book so she could give it to her father as a 70th birthday gift. She had written Turow about her own experiences serving tea to Harvard Law School faculty members while a Radcliffe College student in 1964. Blackmun went on to thank Turow for the inscription and to compliment him for capturing in the book “life at the law school, with its worry and concern, its tension, its competitiveness, and its deep-seated discomfort.” Blackmun continued, “As I think you indicate, I, too, am not convinced that it must be that way. Surely there is a way to teach law, strict and demanding though it may be, with some glimpse of its humaneness and its basic good — the art of getting along together — as well as its demands for perfection.” The letter offered Blackmun’s own recollections of Oliver Wendell Holmes’ visits to Harvard, and of his regrets that he worked his way though law school. “Perhaps it was not a very wise thing to do,” he said, because the jobs turned him into a loner for his first two years at law school. In a poignant closing, Blackmun said he hoped Turow had found satisfaction in his job at the time with the U.S. Attorney’s Office in Chicago. “I hope you are finding the law to your liking, that it has afforded you satisfactions, that it is a tool of kindness and humaneness as well as a discipline, and that you do not now feel that those three years in Cambridge were of little value. But I do not know why they must be so grim and, for some, so utterly devastating.” Blackmun’s file contains Turow’s handwritten reply, in which he told the justice he was “touched and, to tell the truth, awed” by Blackmun’s letter. Turow said that in his job as an Assistant U.S. Attorney, “I see little of the law’s humaneness … but much of its necessity.” Asked recently about the correspondence, Turow, who still writes best sellers and is a partner in the Chicago firm Sonnenschein Nath & Rosenthal, says he remembered it well. The letter from Blackmun’s daughter, he recalls, had stood out among the numerous letters he received about One L, because of her eloquent observations about the Harvard professors to whom she served tea. “I was already in love with this woman, but then I got to the last paragraph of the letter asking me to sign the book she’d enclosed for her father’s birthday,” Turow recalls in an e-mail. She identified her father as Justice Blackmun. “I did as she asked and the exchange with the justice resulted.” Turow adds, “Great power causes many persons to wither and some to grow even beyond the impressive dimensions they already possessed. Justice Blackmun was one of the latter. I remain very proud to have had his attention for a moment.”

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