The latest issue of The New Republic profiles Tom Goldstein of Goldstein & Howe. (UPDATE: The story is now available online here.) The story, by Noam Scheiber, makes the provocative claim that Tom Goldstein has had a profound influence on the “norms and culture” of the Supreme Court:
Since the death of Rehnquist, legal scholars and pundits have endlessly debated whether or not we’re on the brink of a Roberts Court or an Anthony Kennedy Court (after the swing-voting justice) or even a John Paul Stevens Court (after the liberal icon who is its longest-serving member). And, if the measure of influence is one’s effect on the Court’s jurisprudence, then that’s a debate that rightly continues. But, if the proper measure of influence is the extent to which one has shaped the Court’s norms and culture, then there is no debate at all. It’s not Roberts’s Court, nor even Stevens’s. It is Tommy Goldstein’s.
With all due respect to Tom (and much is due), I think this claim is considerably overstated. Scheiber is confusing the Supreme Court with the Supreme Court bar, and is skipping past other changes like the role of state SGs.
At the same time, Scheiber does make a very interesting claim about Tom’s impact on the Supreme Court’s docket. The claim is that Tom’s aggressive search for circuit splits has led the Justices to grant certiorari in lots of cases that wouldn’t have been granted a decade ago. These days, the thinking goes, appellate lawyers looking for Supreme Court experience try to take worthy cases to the Court regardless of whether anyone can pay the bill. The result is that the Court handles more cases by clients with limited means:
Compare the Court’s docket during, say, the mid-’90s with the docket of the last three or four terms—after Goldstein hit his stride. What you find is an important difference in the kinds of cases that have been appearing before the Court: There are significantly more cases involving private citizens with limited means, small businesses, and cash-strapped institutions like the city of Los Angeles.
These, of course, are classic Goldstein clients. But, these days, he’s not the only lawyer snatching up their cases. A generation of imitators has followed suit. More and more firms are adopting Goldstein’s methods to lure even lowerpaying clients.
This is a very interesting claim. It’s partially tied to the shrinking of the Court’s docket, I think: As the Court takes fewer cases, simply having a case before the Court becomes more valuable. In that environment, any effort to get such a case becomes worthwhile. But Scheiber may be right that Goldstein started the trend. I’d be interested in reader thoughts on this, particularly from readers who have followed the Supreme Court’s docket for a long enough time to compare the pre-Goldstein era to the post-Goldstein era.
Last but not least, congrats to Tom Goldstein for the coverage!
First, yes, much respect is due to Tom Goldstein. So this comment is not intended to ding Goldstein.
One change I’ve noticed (and, of course, this is subjective) is that the Court’s docket has contained somewhat more “boring” cases. It could just be me, but unlike a few years ago, I’ve found the Court’s docket to be mostly a snoozer. I am not a culture-war guy, so cases like Lawrence and Newdow don’t excite me. I like meaty cases involving legal issues that actually affect lots of people, rather than cases turning on some tiny and mostly irrelevant interpretive issue.
I follow criminal law issues, and even some of the Court’s crimlaw cases are boring. One example is Whitfield v. U.S., which asked whether money laundering conspiracy required an overt act. I can’t think of many people (even in the field) who cared about or followed that case. Sure, there was a circuit split, but the case was pretty irrelevant. It’s not like men were freed from prison (or sent to prison) because of the opinion.
These boring cases are usually taken because they involve a circuit split. Goldstein was/is the master of finding circuit splits. So, in one way, he has shaped the Court’s docket considerably by serving up these cases to the Court. To Court watchers like myself, it makes watching the Court feel a lot like grass grow.
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I know from my own research that the Supreme Court has been taking proportionally more circuit conflicts cases since the onset of the Rehnquist Court.
I can’t answer Orin’s main question, but the City of Los Angeles has a budget of over $5 billion, which is not my definition of “cash-strapped,” and leads me to question the general point Scheiber is making. Could Los Angeles really not find 100K or whatever to take a worthy case to the USSC?
I remember when Goldstein first came on the scene, back in the 1990s, when the Washington Post Hearsay column reported on his first two pro bono cases. His idea of taking cases to the court for free was one of those “why didn’t I think of that” epiphanies. I recall that the article contained many other lawyers scoffing at ambulance chasers at the court. But today, all of the firms are doing exactly what Goldstein started. A solo colleague of mine has a case that’s been granted cert and within hours, he was inundated by calls from firms offering to take the case and cover the costs. That is a huge sea change from pre-Goldstein days.