Despite the huge impact that some Supreme Court decisions can have in our daily lives, the Court goes about its business in relative obscurity. I’m pretty confident that if I stood at the corner of Broad and Walnut Streets -- the center of downtown Philadelphia -- at high noon on a Saturday, holding a picture of Justice Anthony Kennedy, and asked 50 passersby to identify the man, I’d need only the digits on one hand to keep the tally. Yet, of course, Kennedy, as the often-swing vote on the Supreme Court, is one of the most influential men in America.
But lately things have been a little different. The Court, in shocking fashion, lost its most colorful and best-known Justice. On top of that, because the process for finding his replacement is going to play an important part in the Presidential race, it will received out-sized media attention. There have also been hugely-publicized and wide-impacting decisions recently, addressing the Affordable Care Act and marriage equality. On account of this confluence, for more Americans the Supreme Court has stepped out of the shadows.
With all this, there seemed no better time for a Supreme Court issue of Coverage Opinions. So I went straight to the top. And to my delight, Carter Phillips was kind enough to let me ask him some questions about standing behind the most imposing of all courtroom podiums. But his consent came with a warning. Compared to others who have been interviewed in Coverage Opinions, he was concerned that any conversation with him would be disappointing. Welcome to the humility of Carter Phillips. I told him I’d take my chances.
[Speaking of prior Coverage Opinions interviews, I interviewed larger-than-life and billionaire Texas plaintiff’s attorney Joe Jamail for the April 1, 2014 issue of CO. The late-Jamail was long called, and deservingly-so, The King of Torts. That makes Carter Phillips, with his record number of appearances before the Supreme Court, The King of Re-Torts. [For sure, poetic license on my part here. A retort is not exactly how to describe a response to a question from a SCOTUS Justice. But you get it. I just couldn’t resist the line.]
The 63 year old Canton, Ohio native could not have been nicer or more forthcoming during our call. Despite battling a bad cold he set aside a generous block of time and was in no rush to rid himself of me. And he kindly answered some follow-up questions via e-mail.
Frequent Trier Club
That Carter Phillips is a platinum member of the Supreme Court’s frequent trier club should come as a surprise to no one. He started his career there -- serving as a clerk to Chief Justice Warren Burger from 1978-79. He clerked the prior year for Judge Robert Sprecher of the Seventh Circuit. Phillips’s clerkships followed his graduation from Northwestern Law School, where he met his wife on their first day.
While Phillips’s notoriety comes from his seven-dozen SCOTUS appearances, Washington’s One First Street, N.E. isn’t the only courthouse where he plies his trade. Phillips has argued over 100 cases in the United States Courts of Appeals, including at least one in every Circuit. A Westlaw search of cases for Phillips brought back close to 500 hits. [The pesky New York City law firm of Carter, Carter & Phillips and Virginia lawyer Bradford Carter Phillips made it a tad harder to calculate.]
It’s one thing to step up to the plate a lot. But wins is the number that matters most. Just ask the Cubs. In “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence,” Marquette Law Review, Volume 100 (forthcoming), Adam Feldman, lawyer turned Ph.D. candidate at USC, undertook a mind-numbing, and incredibly impressive, statistical analysis of this question. One of Feldman’s metrics – “mean overlap value” -- measures how much language from a lawyer’s brief ends up in an opinion. Phillips is second (only behind John Roberts, from the Chief Justice’s days on the other side of the Supreme Court bench). As Feldman put it: “[N]ot only is Phillips a seasoned Supreme Court litigator, but he is also one of the most successful Supreme Court brief-writers.”
While Phillips may be at the top of the list of Supreme Court repeat performers, others also ask if they may please the court on a regular basis. This is the result of a shift in high court practice. Phillips explained to me that, prior to the mid-1980s to early 1990s, it was common for a lawyer whose case was accepted by the Supreme Court to continue to handle it. But since that time, he told me, cases at the Court have been dominated by lawyers – sometimes two or three per case – who have argued before the Court numerous times. While it’s not unheard of for a first-timer to show up at the Court, Phillips saw that most likely to happen in a criminal case, where substantial resources may not be available.
I asked Phillips if he thinks that SCOTUS Justices are harder on guys like himself – those who make frequent appearances before the Court? Is more expected of them? In Phillips’s view, they can be. But it’s not because the Justices are trying to play games. It’s because they expect that they can get an answer to any question that they have. As Phillips explained it, the Justices are harder on lawyers who actually answer their questions -- because they’ll continue to ask questions. On the other hand, the Justices may back off from some lawyers because they are not going to get the right answer -- so they just stop. Phillips also explained that, in some cases, the Justices are more interested in how they frame the question -- in an effort to convincing someone on the Court how to think about the issue – than in his answer.
How The Supreme Court Approaches Cases
I was very curious about how Phillips goes about his preparation for oral argument. Having never done anything of the sort [25 years without stepping into a courtroom for that matter] I had it in my head that it could work like this. You of course need to be an expert on the key cases governing the issue. Then, you need to be able to discuss the cases that the key cases cited. After that, you drill down to the cases that those cases cited. And at this rate, before you know it, you have worked your way back to Marbury v. Madison – or, for the super-prepared, Blackstone.
But it doesn’t work that way Phillips explained. My misconception, about preparation for a Supreme Court oral argument, was on account of my lack of appreciation for how the Supreme Court approaches and decides cases. [That I lack such appreciation came as no surprise to me. While I follow the Supreme Court’s comings and goings through The Wall Street Journal’s extensive coverage, the last Supreme Court case that I read was a summary of one in a BarBri book. The Supreme Court does not address insurance coverage cases -- which are simply breach of contract cases under state law. And I’m just a one-trick pony.]
To hear Carter Phillips explain his views on the way that the Supreme Court approaches cases was extraordinary – for both its enlightenment and privilege. It is not my practice to use long quotes in CO interviews. But something this insightful needs to be set out verbatim. If I tried to summarize it I would only mess it up. Phillips’s explanation, of the way that the Supreme Court approaches cases, in response to my question about his preparation for oral argument, went like this:
There is a very different dynamic that operates if you are arguing in front of the Supreme Court than if you are arguing before the Court of Appeals. The reality is that the Supreme Court rarely thinks of itself as being bound in by any particular precedent in the sense [that] they don’t usually grant cases where the precedent points decidedly in a particular direction. They usually grant cases because they have not decided the question before and they don’t tend to think of the ultimate decision as being driven by precedent nearly as much as what I would think of as first principles. What does the text of the statute say? What does the text of the Constitution say? How is it understood? How should it be understood? What canons of construction are available in a particular case? Case law itself tends to drop down in the pecking order of considerations.
Lower courts obviously are much more attuned to precedent. Obviously they are very concerned about what the Supreme Court says and trying to read tea leaves there. Clearly they are bound by their own prior decisions but they also tend to be more respectful of other tier courts – the Courts of Appeals. Whereas the Supreme Court really doesn’t typically care that much about what lower courts think about an issue. Indeed they delight I think in finding issues where all twelve Circuits have lined up on one side and announcing to the world that all of those courts are wrong and the right answer is something that nobody ever thought of.
In that sense you don’t really have to read a thousand cases in order to be prepared for a Supreme Court argument. To be prepared for a Supreme Court argument you have deal with the core of what’s the right answer for this particular case. What interests are likely to influence individual Justices in one direction or another? If you have Federalism principles and you can promote the States’ interests that’s a good one to have. If you have the federal government on your side that’s a good one to have. Those kinds of things make much more of a difference than whether you can cite to a particular case or quote the court from a particular opinion.
On the subject of precedent, Phillips told me that the best piece of advice he ever got as a Supreme Court advocate came from his former boss – Chief Justice Burger. The Chief told him that “when you read a Supreme Court opinion you shouldn’t assume that it means what it says and says what it means.” In other words, Phillips explained that a precedent may seem to lean in one particular direction. But the Court will write an opinion stating that, while its prior decision could be read one way, it concludes that the better reading is another way. So the court walks away from the language in the earlier opinion. Here, Phillips came back to his comments about precedent playing much less of a role in Supreme Court cases than “first principles.”
The Handicapper
It came as no surprise when Phillips told me, in response to my question, that he has solid handicapping skills when it comes to his cases. He said that he is able to confidently tell clients whether the Court will take their case and whether they will win. Then, after oral argument, it is even easier.
Phillips explained that it is the nature of the Court, and its arguments, that give rise to his predictive skills. “There are no devil’s advocates on the Court,” Phillips said. “You only have 30 minutes. You’re going to get 50 to 60 questions. The Justices are actually trying to make points with other Justices more than anything else.” In this context, the Justices are “wearing their views on their sleeve,” Phillips said. They’re “asking a pointed question because [they] want to convey a message to someone else.” When all of this is said and done, Phillips said, “you can count heads and usually it’s not that hard to come up with a prediction as to how the court will come out.”
Memorable Cases
I of course asked Phillips to list a few of his most memorable cases. He pointed to Federal Communications Commission v. Fox Television Stations, 132 S. Ct. 2307 (2012), where he represented Fox, in a dispute with the FCC, over whether certain brief aspects of Fox broadcasts were “actionably indecent.” The hullabaloo came about because of certain uses of the word f*** during Fox’s broadcasts of the Billboard Music Awards. In 2002, Cher used the word during an acceptance speech. A year later, Nicole Ritchie used it while presenting an award. ABC was also a party in the case. The network was on the FCC hot seat on account of a 2003 episode of NYPD Blue that showed the nude buttock of an adult female character for approximately seven seconds and, for a moment, the side of her breast. The FCC concluded that both networks’ broadcasts were indecent.
It sounds like a First Amendment case. But the issue was Due Process (but not without a First Amendment nod). The FCC’s rules, that “fleeting expletives” and momentary nudity are actionably indecent, were put into place after the broadcasts aired. At the time of the broadcasts, a key consideration was whether the material dwelled on or repeated at length the offending description or depiction.
The high court found for Phillips’s client Fox, as well as ABC: “[T]he Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of [18 U.S.C.] § 1464 as interpreted and enforced by the agency ‘fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.’ This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon ‘sensitive areas of basic First Amendment freedoms.’” Id. at 2318 (citations omitted).
As an aside, Phillips shared with me something about Fox Television that you won’t read in the opinion. ABC, in the dock over a nude buttock in NYPD Blue, was represented by Seth Waxman of Wilmer Hale (and the former Solicitor General). Waxman pointed out to the Justices during his argument that in the friezes above the Court were pictures of male nude buttocks. Justice Scalia, sitting directly across from Phillips, asked “Where?” Phillips pointed to one just about Scalia’s head and said “there.” Then Phillips pointed to another one. And one more after that. Scalia replied: “I never noticed that.”
Phillips told me that his proudest achievement is McNally v. United States, 107 S. Ct. 2875 (1987) – the second case he argued at Sidley. He was successful in having mail fraud convictions of certain individuals overturned. Phillips’s clients had a scheme whereby an insurance agency for the Commonwealth of Kentucky, to continue in that role, agreed to pay certain commissions to other insurance agencies, including one established by his clients for the sole purpose of sharing in the commissions.
The Sixth Circuit had upheld the convictions on the basis that the mail fraud statute includes “schemes to defraud citizens of their intangible rights to honest and impartial government.” This had been seen as an appropriate interpretation of the mail fraud statute by Circuits across the board. But the Supreme Court reversed, holding that Congress’s intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of schemes for obtaining money or property by false promises or misrepresentations.
Phillips told me that this decision resulted in thousands of convictions being overturned. It was particularly satisfying, he explained, because while the Court agreed to hear the case on narrow grounds – whether the intangible rights theory could be applied to a non-governmental official (a political party official) – it ultimately struck down the intangible rights theory altogether.
A year later, Congress responded to McNally by adding “honest services fraud” to the mail and wire fraud statutes: “[T]he term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S. Code § 1346. Honest services fraud has gone on to play a huge part in numerous cases involving corruption. And it is not without its own constitutional criticisms and challenges. But the long and winding road of present day honest services fraud got its start with Carter Phillips and his win in McNally.
The Most Influential Amicus Brief In the History Of The Supreme Court
In his award-winning book The Nine – Inside the Secret World of the Supreme Court, Supreme Court scholar and CNN legal analyst Jeffrey Toobin concluded that Phillips may have authored “the most influential amicus brief in the history of the Court.”
The case at issue is Grutter v. Bollinger, 123 S. Ct. 2325 (2003) and involved the permissibility of racial preferences in admissions at the University of Michigan Law School. As explained by Toobin, race conscious affirmative action had been very important for the military service academies – used to prevent large groups of enlisted minorities from being commanded by all white officers. The University of Michigan wanted to use this success, at West Point, Annapolis and Colorado Springs, in support of its position. But since active duty officers could not make this argument, the University sought out high-profile military retirees to put their names on an amicus brief.
The University brought in Phillips and colleague Virginia Seitz to write the military retirees’ brief. As Toobin put it, “The implicit question at the heart of the retired officers’ brief was, if affirmative action was good enough for the service academies, why wasn’t it good enough for the University of Michigan?”
The military retirees’ amicus brief became a focal point of the oral argument, with several Justices peppering Solicitor General Ted Olson about it. Justice Ginsburg, noting that all of the military academies have race preference programs in admissions, asked Olson if that was a violation of the Constitution. Toobin described the box that Olson had been put in: “If Olson said yes, he admitted that the federal government was violating the law; if he said no, he looked like a hypocrite.”
The law school’s affirmative action program was upheld by a 5-4 vote. The task to write the majority opinion fell to Justice O’Connor. Toobin described it like this:
O’Connor next turned to the subject that dominated the oral argument—the brief from the retired military officers. She quoted Carter Phillips’s brief at length and then, in an extraordinarily rare tribute, simply adopted its words as part of the Court’s opinion: “To fulfill its mission, the military ‘must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.’” Before submitting his brief, Phillips had worried that the Court might observe (correctly) that there were big differences between a military service academy and a law school, and thus find no relevance of one to the other; but O’Connor did just the opposite. Quoting the brief again, she wrote, “We agree that ‘it requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’”
Toobin concluded that, “considering the oral argument and O’Connor’s opinion, the submission from the retired officers may have been the most influential amicus brief in the history of the Court.”
Phillips very briefly mentioned Grutter to me when I asked him about his most significant cases. But he said nothing at all about Toobin’s assessment of it. Welcome back to the humility of Carter Phillips.
Catching A Lift With Justice Scalia
Needless to say my call with Phillips had to include some discussion of the late-Justice Scalia. I wasn’t looking for anything complicated, such as memories of an argument that he may have with the Justice over an obscure point of law. To the contrary, my objective was to get a favorite entertaining anecdote. Between the amount of interaction that Phillips had with Scalia, and the late-Justice’s penchant for biting wit, I figured Phillips would have many to offer. I was right. He didn’t even know where to begin.
Phillips shared with me a story that is surely at the top of the list. The tale is also recounted in Toobin’s The Nine. On a Sunday in January 1996, Washington was hit with a crippling 21 inch snow storm. While the federal government was shut on Monday, Chief Justice Rehnquist, unwilling to raise a while flag to the elements, ordered that the day’s oral arguments proceed. The Chief sent cars and Marshalls to pick up the Justices at their homes.
Phillips was scheduled to argue that day in Norfolk & Western Railway Company v. Hiles, a case involving an injured railroad worker. He lived in proximity to Justice Scalia in the Virginia suburbs and caught a lift with him to court. Justice Kennedy also shared the car. Obviously, Phillips said, the case was not discussed during the ride. The three arrived at the Supreme Court with 30 minutes to spare. According to Toobin, Scalia quipped: “I even have time to read your brief now, Phillips.” I guess that’s called an ex-carte communication. This was one of the two oral arguments that Phillips’s wife has missed.
A Reinsurance Joke – Really
Phillips has argued seven reinsurance cases in various courts. Since Coverage Opinions is, at its core, an insurance publication, we talked about the subject briefly. And then Phillips laid this on me: “I do have one funny story to tell you about reinsurance cases.” I was certainly all ears.
Phillips recounted for me a story from many years ago when he was getting ready to argue a reinsurance case in the Second Circuit. Just as the panel was about to come onto the bench, his adversary, Walter Dellinger – the renowned authority on the Supreme Court and former Solicitor General -- leaned over to Phillips and asked him if he knew why reinsurance law was invented? Dellinger said: “To make insurance law seem interesting.”
Yeah. Yeah. Real funny. To a passionate insurance lawyer like myself, those are fightin’ words. Dellinger would be wise to watch his back. There’s a 5’4” bespectacled, bow-tie wearing insurance lawyer out there with a grudge.
Thoughts on Judge Merrick Garland
At the time of my call with Phillips, President Obama had not yet announced his nominee to replace Justice Scalia. But speculation was that the decision was close at hand. So while I asked Phillips his thoughts on who might get the nod, in the back of my head I couldn’t avoid the feeling that it would be for naught. It was. A week after my call with Phillips, the President selected Judge Merrick Garland of the D.C. Court of Appeals to fill Scalia’s seat.
I reached out to Phillips for comment after Judge Garland was tapped. It turns out the two go way back. While Phillips was clerking for Chief Justice Burger, Garland was down the hall clerking for Justice William Brennan. I wasn’t the only one seeking Phillips’s comments that day on Judge Garland. Phillips told me, as he told The National Law Journal, that he didn’t think that Garland would “be a replacement for Justice Scalia in that he’d be asking ten to fifteen questions in 30 minutes of argument.” But Phillips also doesn’t see Garland as a “shy and retiring justice.” “I think he would ask questions and they would be good questions and they would advance the understanding of the justices about what the case is about and what’s the right thing to do,” Phillips said. Having argued before Garland in the D.C. Circuit, Phillips called him “about the nicest person to argue in front of that you could ask for. He’s prepared, he’s thoughtful, he’s considerate, he’s respectful.”
But Phillips did not praise Garland for his performance on one particular court – basketball. As clerk colleagues, Phillips and Garland played hoops a few times a week on the top floor of the Supreme Court building – the so-called “highest court in the land.” “Merrick played hard,” Phillips told me, “but his shot needed a bit of work.” Not much has changed in nearly 40 years – Phillips once again thinks that Garland’s best place in the Supreme Court is on the bench. |