Arnold & Porter’s Lisa Blatt, who has won more U.S. Supreme Court cases—32—than any other woman in history, has set a few personal rules in her practice. For example: Don’t get caught up in client drama; stick to high-minded legal arguments. “I did appellate advocacy for a reason,” she quips. “For the emotional distance.”
In September 2012, after a single phone call from a lawyer she didn’t know, Blatt jumped into a case destined to break that rule. The facts in the complicated pro bono matter captivated Blatt, a veteran of the U.S. Solicitor General’s Office who joined Arnold & Porter as appellate chief in 2009, and others on the team that she hastily assembled. That group included three associates from her firm, plus former solicitors general Greg Garre of Latham & Watkins and Paul Clement of Bancroft.
At the center of the case was the little girl dubbed “Baby Veronica” by the media. At birth in 2009, she was placed with adoptive parents Melanie and Matt Capobianco after her birth mother chose them over raising the child herself without support, financial or otherwise, from the baby’s father. But at 27 months Veronica was handed over by a South Carolina family court to the father she’d never met. The decision, affirmed by the South Carolina Supreme Court, was based on the controversial Indian Child Welfare Act, a federal statute designed to keep Indian families intact by making interracial adoptions more difficult. That law deems Veronica an “Indian child” even though only one parent—her father, Dusten Brown—holds Cherokee Nation membership by virtue of his 1 percent ancestry in the tribe
By the time Blatt took on the Capobiancos’ case, Veronica had already been separated from them for nine months, and the Capobiancos’ lawyers had just one week to file a U.S. Supreme Court cert petition to try to get the case heard that term. More legal firepower moved into position on all sides, including Mayer Brown’s Charles Rothfeld and the Yale Law School Supreme Court Clinic, working pro bono for Dusten Brown, and Sidley Austin’s Carter Phillips for the Cherokee Nation, not to mention dozens of amicus brief-writers. The Court granted cert in January and in June ruled 5-4, on the term’s next-to-last day, that the federal ICWA couldn’t help Brown because he never had custody or provided support before seeking to undo the adoption. When the South Carolina courts quickly fell in line and ordered Veronica to be returned from Oklahoma, where Brown lived, to the Capobiancos’ home near Charleston, the case appeared near an end.
That’s when any semblance of routine went out the window. In July, Brown’s and the tribe’s lawyers tried to stall or block Veronica’s return to South Carolina with a flurry of new filings in both states. The South Carolina courts that had awarded custody to the Capobiancos were “shockingly wrong” to cut off inquiry into Veronica’s best interests after she had spent 19 months with her Cherokee family, asserts Brown counsel Rothfeld. The renewed litigation took Blatt by surprise: “I really think I was in a state of shock,” she says. Normally, she’d have nothing to do after the Supreme Court ruled. “I’ve never done anything on remand,” Blatt says. This time, though, the Supreme Court team captained by Blatt—with intense involvement by her senior associate R. Reeves Anderson and Latham partner Lori Alvino McGill—stayed in the thick of it, setting strategy and working with local adoption counsel in South Carolina and Oklahoma. Their goal, in Anderson’s words: “Close door after door until there were no doors left to hide behind.”
The running battle on remand centered on a host of jurisdictional and procedural arguments. With federal ICWA protections gone, how would the states’ laws handle custody and adoption questions under the present circumstances? After Brown disobeyed orders in South Carolina to surrender the child, what steps should Oklahoma courts take to enforce the judgment? When would tribal and federal courts’ authority enter the mix? In the seven weeks after South Carolina attempted to bring the drama to a close, lawyers for each side raced from forum to forum in almost daily skirmishes seeking to get answers.
Meanwhile, the Baby Veronica case continued to draw national media attention and stoked public outrage on both sides. Brown’s and the tribe’s supporters saw an upstanding, loving biological father stripped of his rights in an echo of the racist adoption practices that led to ICWA’s passage in the first place. The Capobiancos’ supporters, passions fanned by an adept pro bono public relations campaign, saw a birth mother’s decision to place her daughter with a deserving adoptive family trumped by an absentee father wielding a law long reviled in adoption circles. In this swirl, says Anderson, “everyone who seemed to come to this case came at it perhaps for their own reasons.”
The litigation frenzy continued into September, when the Oklahoma Supreme Court ordered a weeklong mediation to try to induce the two sides to compromise on custody. Latham’s McGill says she told Melanie Capobianco to hold fast to the Supreme Court victory: “You think, ‘Well, I have to give something away, or this nightmare’s never going to end.’ And I said ‘No, it is going to end, and it’s going to end quickly.’”
And it did. With the mediation at an impasse, Oklahoma courts put the South Carolina famil court’s orders into effect. On September 23, 91 days after the U.S. Supreme Court ruled and almost 21 months after Veronica was taken from them, the Capobiancos under police escort gathered up their daughter and left Oklahoma. Brown and the Cherokee Nation still had challenges pending or planned. But, on October 10, they declared a unilateral truce. “Let this one go,” Cherokee Nation lawyer Chrissi Nimmo said she counseled her side. “It’s time for all of us to move on.”
Legally, perhaps, but not emotionally. In mid-October the Capobiancos’ supporters threw a thank-you party at a South Carolina beach house for their key lawyers and their families. Over a dinner of low country boil, homemade biscuits and fried green tomatoes, the lawyers met the curly-headed 4-year-old who had been the object of the battle.
In the end, more than two dozen lawyers for the Capobiancos had worked pro bono for more than a year. Arnold & Porter lawyers alone spent more than 3,300 hours on the case as of late October. Latham’s hours totaled more than 1,400. And it’s still not entirely over, with a contempt hearing pending at press time against Brown and the Cherokee Nation, and a demand by the Capobiancos’ side for more than $1 million in fees and expenses for the post–Supreme Court battle that neither side says it wanted or expected.
The Capobiancos speak with reverence about the help they received, especially about Arnold & Porter’s Anderson and Minneapolis solo practitioner Mark Fiddler, an ICWA specialist who recruited many of the volunteer counsel. Matt Capobianco starts to cry as he recalls one conversation with Anderson, who told him, “This is the reason we all go to law school. … This is the kind of case that we remember forever.” At the party, the Capobiancos lost count of the hugs exchanged and tears shed as they circulated among the lawyers telling war stories. Among them: Lisa Blatt, no better than the rest at keeping an emotional distance.
Mark Obbie is a writer and editor who specializes in legal affairs.