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The New Republic on Tom Goldstein

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!