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Supreme Court Veteran Traces Shifts on the Bench During Visit to the Law School

April 26, 2011

Attorneys who have cases before the Supreme Court for the foreseeable future should expect more questions than those who had argued before the panel in recent decades, attorney Carter Phillips said on April 21.

Chief Justice John Roberts, Justice Samuel Alito, Justice Sonia Sotomayor and Justice Elena Kagan have all shown a tendency to ask more questions than the justices they replaced, Phillips said.

No one would know this better than Phillips, the managing partner of Sidley Austin in Washington, D.C. Phillips has argued cases before the nation’s high court 71 times, more than any other attorney in private practice.

Two of those arguments occurred within a two-week span, said Professor Lisa McElroy, who teaches a Supreme Court seminar and arranged for her class to speak with Phillips, initially by conference call. Phillips was so impressed by the students’ questions, McElroy said, that he asked whether he could come to speak at the law school.

During his visit, Phillips commented that the Roberts Court has gained a well-earned reputation for accepting cases and issuing rulings that favor the business community.

“That is certainly attributable almost directly to the chief justice,” Phillips said, adding that the court has agreed to hear an increased number of patent, securities and antitrust cases since Roberts was sworn in.

Yet, citing shifts in the court’s composition since past rulings that limited the size of jury verdicts and addressed pre-emption of congressional objectives, Phillips said the business community “has to be holding its breath.”

Justice Clarence Thomas’ views on pre-emption in AT&T Mobility LLC v. Concepcion and Roberts’ and Alito’s perspectives on the proportionality doctrine could produce rulings adverse to the business community’s interests, Phillips said.

“Not all conservatives are built the same,” he noted.

Phillips, who was a clerk for the late Chief Justice Warren Burger, observed that the Roberts Court tends to spend less time discussing opinions as a group than its predecessors.

“When I was clerking, they’d discuss things for hours,” he said.