The National Pulse

Minor Miracles

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For law firms, getting the U.S. Supreme Court to hear their cases is an uncertain gambit. After all, the justices vote to grant certiorari to only about 1 percent of the roughly 8,000 petitions that are filed each year.

Even the biggest Washington, D.C., firms expect most of their cert petitions to be denied. Only the solicitor general, representing the U.S., can expect a favorable hearing on most petitions.

“It’s hard to say what’s a good rate, but I would say anything above 50 percent is miraculous,” says D.C. lawyer Roy T. Englert, a veteran Supreme Court advocate and former assistant to the solicitor general.

Under the category of minor miracles are two small D.C. firms that lately have achieved a remarkable record of success in getting their cases heard by the high court. And they have done it by following sharply contrasting strategies.

The Institute for Justice is a 13 lawyer libertarian public interest firm that makes a practice of nurturing cases along by finding sympathetic plaintiffs with compelling stories of battling the government.

“We look for cases with compelling facts, sympathetic clients and interesting villains,” says spokesman John Kramer.

Tracking Circuit Conflicts

On the other hand, Goldstein & Howe, a husband and wife practice founded in 2000, studies splits among the circuits of the U.S. Court of Appeals, since the justices often grant cert petitions to resolve conflicts among the lower courts. The firm even has devised a software program that spots when circuit courts diverge on an issue of law.

“The court is quite picky about the cases they hear, but also formulaic. About three fourths of the cases are to resolve circuit conflicts,” partner Tom Goldstein says. Either way, the goal is to reach the Supreme Court, says Chip Mellor, general counsel for the Institute for Justice.

Founded 14 years ago by Mellor and attorney Clint Bolick, the firm has staked out a position favoring individual rights. “We are seeking to restore constitutional protection for some of the forgotten rights–economic liberty and property rights, as well as some aspects of free speech,” Mellor says. “All of our cases are David versus Goliath because we are going up against powerful interests, usually the government. And they are years in the making.”

Before this year, the institute was best known for its long fight for school choice, an effort that culminated three years ago in the high court’s ruling that upheld Ohio’s program of school vouchers. Zelman v. Simmons Harris, 536 U.S. 639 (2002). This term, three of the institute’s cases are before the court. In December, Bolick argued in favor of Juanita Swedenburg, the owner of a small Virginia winery, who challenged laws in New York and 23 other states that prohibited her from shipping wine directly to consumers. Bolick has called the New York law a classic example of economic protectionism, one that protected politically connected in state vineyards at the expense of consumers and out of state competitors. Swedenburg v. Kelly, No. 03 1274.

Also in December, the court heard a challenge to federal agriculture programs that force farmers to pay fees for generic industry ads. The industry took up the issue on behalf of small dairy farmers in Pennsylvania who objected to paying for the “Got Milk?”promotion campaign. They won a ruling in the 3rd U.S. Circuit Court of Appeals at Philadelphia, which struck down the required ad fees as a free speech violation. The justices took up the government’s defense of the program in another case brought by cattle ranchers. Veneman v. Livestock Marketing Association, No. 03 1164.

Looming Decision

In February, the high-profile case before the court was the institute’s challenge to a city’s eminent domain power to seize private property for business development. Not surprisingly, Kelo v. City of New London, No. 04 108, features an appealing plaintiff: a nurse and homeowner fighting to keep her house. The city’s redevelopment authority says it needs to knock down Susette Kelo’s house so a private developer can build offices and townhouses. (See “Whatever It Takes,” February, page 10.)

Usually, by the time Mellor and his lawyers are ready to ask the Supreme Court to review a case, the justices and nearly everyone who follows the news are likely to be familiar with the issue.

Yet, the strategy doesn’t always work. The institute spent six years fighting laws in at least 10 states that give funeral directors a monopoly on selling caskets. Lawyers for the institute sued on behalf of two Internet sellers of funeral items at much lower prices. Mellor won a ruling striking down the casket monopoly law in Tennessee in the 6th U.S. Circuit Court of Appeals at Cincinnati. Craigmiles v. Giles, 312 F.3d 220 (2002). But the court denied review in March, leaving Mellor and his lawyers to start again in another case.

While the institute plants acorns and waits for them to grow into mighty oaks, Goldstein and his wife, Amy Howe, have found a quicker, more efficient way to get cases before the court: They pick the low hanging fruit.

Goldstein & Howe fits the definition of a small D.C. firm; the couple operates from their home in northwest Washington. They discovered they could generate business by offering to seek review on behalf of parties who lost in circuit court on an issue that split the lower courts.

Another success comes from the firm’s prominence on the Internet. In the mid 1990s, Goldstein began compiling statistics on the court’s cases and voting patterns, and he now posts them on the firm’s Web site, www. He also developed SCOTUSblog, a separate site with daily postings related to the high court. Last year the couple hatched another low cost and effective way to multiply their efforts. They launched a Supreme Court clinic at the Stanford Law School with the help of professor Pamela Karlan.

“Tommy and I had talked about this for a few years. The students would take a case from start to finish, doing research and writing briefs,” says Karlan, a former clerk to Justice Harry Blackmun. Working with Goldstein, the Stanford clinic helped put together four cert petitions–all were granted.

In November, for example, Goldstein was before the court to argue that layoffs of city workers that disproportionately hit older employees may be challenged as illegal age discrimination under federal law. In March the court agreed, ruling 5 3 that an employer’s policy may be biased if it has a disparate impact on older workers. Smith v. City of Jackson, No. 03 1160.

In December, the court heard Rousey v. Jacoway, No. 03 1407, to decide whether individual retirement accounts are protected from seizure during a bankruptcy. Both Richard Rousey and his wife were forced into early retirement and compelled to roll over their pension and 401(k) accounts into an IRA. When medical bills pushed them into bankruptcy, the creditors sought to seize the money in their IRAs. Goldstein’s petition argued that federal law shields from bankruptcy pensions and other retirement accounts, so it should also protect IRAs.

In February, Goldstein was back before the court to argue that America’s disability discrimination laws protect passengers on foreign flagged cruise ships. In Douglas Spector v. Norwegian Cruise Line Ltd., No. 03 1388, Goldstein represented a Houston man who said he was charged nearly double the usual rate to rent a cabin because he was in a wheelchair.

A group of small Internet providers who are challenging federal regulations that favor established cable and phone companies hired Goldstein to argue their case in late March. FCC v. Brand X Internet Services, No. 04 281.

Goldstein stresses the different styles between his firm and the institute. However, he says, “If you do the numbers, we have a very good record” of getting cases before the court. He quickly adds: “But that probably gives us too much credit.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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