April 2, 2019 / 7:49 PM / 3 months ago

In census and Obamacare amicus briefs, Big Law sides against Trump

(Reuters) - Monday was a momentous day for appellate litigators, with amicus brief deadlines in two momentous cases: the U.S. Supreme Court’s review of the Trump administration’s decision to add a question about citizenship to the 2020 census; and a 5th U.S. Circuit Court of Appeals case in which Texas and other states, with the backing of the Justice Department, are defending a lower-court ruling that the Affordable Care Act is unconstitutional. Twenty of the biggest law firms in the country signed amicus briefs in the census case, including Latham & Watkins, Goodwin Procter, Jenner & Block and Sidley Austin. A dozen, including K&L Gates, Dentons and Schiff Hardin, filed briefs in the ACA appeal.

None of them sided with the Trump administration.

If you needed a data point to support the anecdotal evidence that Big Law firms have been leading the opposition to some of the president’s most controversial policies, that’s a pretty good one. Many big firms jumped into the fray at the beginning of President Trump’s administration, when Big Law mobilized against Trump’s first order barring travelers from several Muslim-majority countries from entering the U.S. What you see from yesterday’s appellate filings in the census and ACA cases is that two years into the Trump presidency, Big Law is still a stalwart of the resistance.

Some caveats are in order. First, we haven’t yet seen amicus briefs backing Texas and the other states trying to kill the ACA. They won at the trial court, so the ACA’s defenders – the House of Representatives and states including Colorado – and their amici filed first at the 5th Circuit. When Texas gets its turn, it could be that big firms represent amici aligned with the Justice Department.

It’s also important to remember that amicus briefs represent the views of firms’ clients, not necessarily those of the law firms that sign them. In the ACA case, many of the amici that want to preserve Obamacare are institutions such as the Blue Cross Blue Shield Association, the American Medical Association and the Catholic Health Association. Law firms may regard amicus briefs as a way to deepen client relationships with such organizations.

That said, the lopsided Big Law lineup against the Trump administration is not an accident. As a profession, lawyers lean left; law students even more so. It’s always been easier for progressive public interest groups to bring on big firms as amicus counsel than for conservative groups.

There’s rock solid proof of that truism in the Supreme Court census docket. The Trump administration received support in nine amicus briefs supporting its decision to ask about citizenship in the 2020 census. Filers included the Republican National Committee, Citizens United, Oklahoma and a coalition of other conservative states and several right-leaning public interest organizations. None is represented by a big firm.

The Project on Fair Representations is represented by the well-regarded boutique Consovoy McCarthy Park. The RNC has Holtzman Vogel Josefiak Torchinsky, which specializes in political and policy cases. Most of the other amici backing the Trump administration are represented by small firms, sole practitioners or in-house lawyers. (The Becket Fund for Religious Liberty, which has counsel from Winston & Strawn, filed an amicus brief in support of neither party but actually argued that the Manhattan federal court judge who barred the census citizenship question was correct to order the government to produce evidence beyond the administrative record.)

Meanwhile, ad hoc amici backing the groups that challenged the citizenship question were able to secure elite appellate litigators. A bipartisan group of five former census directors is represented by Mayer Brown. Uber, Lyft, Levi Strauss and two dozen other data-reliant businesses and business groups concerned about the accuracy of census information have counsel from Gibson Dunn & Crutcher. Kellogg Hansen Todd Figel & Frederick represents five former federal judges. Hogan Lovells, which is counsel to the House of Representatives, also represents a coalition of social science organizations.

Big firm amicus briefs are no guarantee of victory, of course. Just look at the outcome when the Supreme Court decided the legality of the travel ban last June. But the Trump administration has a dismal win rate in legal challenges. According to a March 19 Washington Post story, which was in turn based on statistics from the Institute for Policy Integrity at NYU Law, the Trump DOJ has prevailed in only 6 percent of the Administrative Procedure Act challenges to its policies, compared to the average 70 percent win rate for the government. (The Post did not include data on non-APA cases, but did note that Trump opponents have cited the APA in two-thirds of their cases.)

Plenty of the administration’s legal setbacks have come from state attorneys general and civil rights groups, but big law firms are often litigating beside them – representing parties, as Arnold & Porter Kaye Scholer is in the census case, or lending amicus support. From the looks of the dockets in the census and ACA cases, that’s going to last as long as the Trump presidency.

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