Examine any major conservative-backed legal cause in the last three decades and you’re likely to find Jones Day’s Michael Carvin at work in some capacity.
He argued in the Florida Supreme Court on behalf of George W. Bush in the presidential election challenge Bush v. Gore. He has handled politically charged redistricting challenges, including one pending that questions the constitutionality of the heart of the Voting Rights Act. He also successfully defended California’s anti-affirmative action Prop 209, among other cases.
And while Paul Clement of Bancroft appears to be the new Republican go-to kid on the block, Carvin and a cadre of Reagan-era Republican lawyers still aggressively occupy the block as well.
However, Carvin, who spent six years in the Reagan Justice Department, rejects any characterization as an “agenda” lawyer.
“I’m a big-firm lawyer who deals with all kinds of cases that don’t necessarily advance the conservative agenda,” he said. “It is true in my pro bono work I go to cases where the language, history and structure of the Constitution are on my side. I’m a big believer in structural limits.”
And he has found the “perfect case” in the challenge to the nation’s health care law, said his colleague in that battle, partner Gregory Katsas.
“At the end of the day, it is a complicated constitutional question which involves an issue I’ve always been interested in — limitations on Congress’ ability to interfere with citizens’ lives,” Carvin said. “The plain language of the Constitution obviously puts limits on Congress that they have quite obviously violated in the health care law.”
Carvin represents the National Federation of Independent Business and four private individuals in NFIB v. Sebelius, one of three health care-related appeals in the U.S. Supreme Court. His sixth Supreme Court argument will be March 27 when he attacks the constitutionality of the so-called individual mandate.
Carvin’s past policing of the Constitution’s structural limits drew him into the line-item-veto challenge in the Supreme Court, which, he said, “ninety-five percent of conservatives thought was excellent policy, but was bad constitutional law.” He also won a Supreme Court challenge to a Sarbanes-Oxley reform in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), raising separation-of-powers concerns.
Although he has represented state governments, telecommunications and energy companies, and the tobacco industry, among other clients, what clearly revs his lawyerly engine are those government-related cases.
“The only kind of law I was ever interested in was D.C.-based government and public policy issues,” he said. “At the most basic level, it’s intellectually challenging and interesting to deal with thorny and complicated issues.”
Karen Harned, director of the National Federation of Independent Business’ Small Business Legal Center, first turned to Carvin for its circuit court appeal.
“I’ve listened to a lot of litigators in past arguments in the Supreme Court,” she said. “I still think to this day that his argument in the PCAOB case was one of the best I’ve ever heard. It was such a complex argument and he just made it easy to understand.”
Carvin understands that “simpler is better,” said Hans Bader of the Competitive Enterprise Institute. Bader worked with Carvin on voting rights and California’s Prop 209. “He does a good job of handling cases even when outnumbered, simplifying issues when a case is very complicated and homing on the most salient weakness of the other side.”
Carvin’s very direct style belies a terrific sense of humor, said his partner, Katsas. “He is very passionate about his work so he can be a pretty intense guy to work with, but I think that’s all to the better. He has a real gift for conceptualizing things. People saw that in the PCAOB case and they will see it again in the health care case.”
Marcia Coyle can be contacted at email@example.com.