At age 71, Bert Rein says he is feeling like the “Satchel Paige of Supreme Court advocacy” these days.
Like Paige, the famed Negro League pitcher who was called to Major League Baseball late in life, Rein argued his first case before the high court in October, and will argue his second in February or March.
Both cases are destined to be civil rights landmarks: Fisher v. University of Texas, on affirmative action in university admissions, and Shelby County v. Holder, a crucial test of the constitutionality of the Voting Rights Act.
And both, he acknowledges, are likely to be the cases he is most recognized for, even after a long career as a commercial litigator with deep experience in issues ranging from antitrust to communications and food and drug law.
“Have I changed my stripes into a constitutional lawyer? I don’t know,” Rein said in an interview Monday. “I just filed a brief in a Department of Transportation consumer protection case, too.”
Rein, a founder of the Wiley Rein firm, has filed petitions to the Supreme Court for years on a range of issues. “But I never had lightning strike until lately.” Before Fisher and Shelby County, Rein wrote the petition in 2007 for Wyeth in what turned out to be a landmark pre-emption decision, Wyeth v. Levine. But when it came time to argue that case, the client went with Seth Waxman of Wilmer Cutler Pickering Hale and Dorr.
This time, though, the client – Edward Blum of the Project on Fair Representation – did not hesitate to go with Rein for the oral arguments, even though in the Supreme Court, Rein was a rookie.
Blum had a longstanding relationship with Wiley Rein, dating back to a Texas redistricting case in the 1990s. Rein and the firm did “such a terrific job, I stayed in touch with them,” said Blum. When Blum took on the cause of Abigail Fisher, a white student who was rejected by the University of Texas, and Shelby County, a district challenging the pre-clearance provision of the Voting Rights Act, Blum enlisted Rein.
“While I am sure there are a lot of Supreme Court advocates who would like to argue these cases, Bert is one of the smartest and most effective lawyers I have ever known,” said Blum. Asked about Rein’s age, Blum said, “That is more of a credit than a deficit. Bert has seen a lot, and has a keen understanding of what the Supreme Court is interested in and wants to hear.”
Indeed Rein handled the Fisher argument with ease, and he seems invigorated, even feisty, about the upcoming Shelby County argument. Rein said he was surprised that the court announced it was taking the voting rights case last Friday instead of today, when its regular orders list was announced. The court sometimes announces grants on Fridays to give lawyers an extra weekend to prepare.
Did Rein work on it over the weekend? “I did think about it quite a bit. You work on it in your head.” He added with a laugh, “But I’m not as quick as The New York Times. They’ve already decided the case, so what’s the point of my arguing it?” He was referring to a Times editorial that appeared just hours after the case was granted, urging the court to uphold the law.
Rein is also unfazed by the political backdrop for the Shelby County case – an election season that saw numerous state voting laws challenged successfully under the Voting Rights Act. Supporters of the law say efforts at voter suppression in the 2012 election prove that the Voting Rights Act is far from outdated or irrelevant.
That contemporary history, Rein said, “could go either way. You could say it is an indication of a continuing problem, or you could look at it as a lot of authority in the hands of a single official” that can be used as “a political weapon.” The Voting Rights Act litigation also illustrated, Rein said, the shift away from “can you vote,” to “what will the result of the vote be.”
Rein was asked whether his advocacy in two high-profile cases that pit him against mainstream civil rights groups and the Obama administration will peg him as a lawyer for a cause, not just a case.
“If you characterize the lawyer as with the client, that’s not how the system operates,” said Rein. “I don’t think anyone here at the firm can be characterized as someone going around saying, ‘we’re on some crusade.’”
Rather, it is a matter of serving his clients. “A client comes to you and you determine whether the case is legitimate, and if you can argue it in good faith, then you give the client zealous representation.” Rein also notes he is only challenging the pre-clearance aspect of the law, leaving intact other tools to challenge discrimination in voting,
Rein does not rule out taking on more Supreme Court cases, given his recent batting average on cases granted. “It may be magical,” said Rein. “And we can give clients a fresh perspective on the court.”
Tony Mauro can be contacted at firstname.lastname@example.org.