Shah replies that "no reasonable attorney making a … determination whether to take on a representation would rely on the speculative and remote possibility that the district judge is going to have found this to be one of the best cases he has ever seen."
Paul Clement, who used to argue before the high court as President Bush's solicitor general, reappears on behalf of the plaintiffs' lawyers. Clement reportedly got a cool $5 million when he became head of King & Spalding's appellate practice, and since I would pay at least $2 million just to hear Clement argue a case, or read his telephone bill, I'm thinking they got their money's worth.
Justice Samuel Alito tells Clement he rather likes the mechanical lodestar calculation because "sometimes there is a great advantage in doing things mechanically—it provides an element of fairness. … Here the district judge in effect takes four-plus million dollars from the taxpayers of Georgia and—and awards it above the lodestar calculation to these attorneys. … But it seems totally standard-less, and I see no way of policing it."
Scalia adds: "It's certainly not in the tradition of the bench to comment upon the performance of lawyers. I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer. But we don't do that."
But Roberts out-lofties him again: "I don't understand the concept of extraordinary success or results obtained. The results that are obtained are presumably the results that are dictated or command or required under the law," as opposed to the quality of the lawyering.
Clement smiles a bit as he begs to differ: "I'm not sure that comports with my experience. I have seen lawyers come into this court and concede a point in oral argument, and I have seen that prominently featured in this court's opinion. So it does seem to me that sometimes the quality of the performance and the results obtained do depend on the lawyer's performance."
Roberts hates that idea: "Well, but what does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?" Roberts goes even more meta: "Maybe we have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are." Everyone laughs.
Clement comes back: "And maybe your perspective's changed, your honor." (Roberts was once a monster appellate litigator.) Everyone laughs harder.
Justice Stephen Breyer adds that he is bothered by the optics here as well. According to his back-of-the-napkin math, the Georgia taxpayer paid these lawyers close to $700,000 per year and "that's more money than 99 percent of the taxpayers hope to see in their lives. … OK, pay them $400,000. … But $700,000 a year for a lawyer. Wow."
Clement seems to be rushing his argument toward the end, and I worry, briefly, that he's short-handing his points and racing to conclude before the red light goes on. But I should know better. He's just setting up his three-pointer for the court. And it's about perfect: "If you accept the petitioner's position that the lodestar is a ceiling, and not subject to adjustment then what you are telling lawyers is that the maximum amount they can make in a civil rights case is the minimum amount they can make in a different case. … You are also telling them something else, which is that there are multiple ways for district courts to cut down on the lodestar amount, either because you spent too much time on this or we didn't like your travel expenditures. And so there are multiple ways for those hours to be cut down." Why would any lawyer take on a civil rights case if the meter only runs backward?
That was the whole point of the statute, and that is all Paul Clement really needs to say. Sometimes, high-quality lawyers can make all the difference in the world. Clement is Exhibit A.
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