In the healthcare case, orphans get parents

Fri Mar 23, 2012 3:22pm EDT

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(Reuters) - When the landmark challenge to the Obama administration health care law kicks off on Monday, attorney Robert Long will have the responsibility of presenting one of the lawsuit's most important arguments.

What Long won't have: a client in the case.

That's because the Washington-based litigator has been chosen by the Supreme Court to present a so-called orphan argument -- a position neither side in the case will defend, but which the nine justices have a keen interest in hearing.

Long will make the argument that under the federal Anti-Injunction Act, the justices can't decide the case now because the provision requiring individuals to buy health insurance hasn't gone into effect. That narrow position was first voiced in some lower court battles by the Obama administration without success, and the administration abandoned the tack.

The justices can call in reinforcements for a handful of reasons, ranging from a party changing its position during the litigation to a litigant failing to show up in court. Over the last five decades, the court has tapped outside lawyers about 45 times, according to a 2011 Stanford Law Review article.

Little is known about how the lawyers, who work on a pro bono basis, are chosen and the practice raises a number of questions, chief among them: What are lawyers without clients doing in front of the court to begin with?

"The parties have a real stake in the matter. They can be relied on to raise the issues that are important," said Amanda Frost, a law professor at American University.

Other observers say the practice amounts to meddling by the justices, who are signaling that an issue not in dispute is nevertheless important.

Inviting outside advocates to speak can "undermine the perceived neutrality and legitimacy upon which authority depends," wrote Brian Goldman in the Stanford Law article, "Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions."

Long is not the only lawyer who will be presenting an orphan argument in the health care case. Later in the week, H. Bartow Farr III will address why the rest of the law should stand if the key individual-mandate provision is struck down.

Farr, of Washington's Farr & Taranto, declined to comment and Long, of Covington & Burling, didn't return requests for comment.

The high court first turned to an outside advocate in 1954, when Erwin Griswold, then dean of Harvard Law School, was invited to parse an argument about divorce proceedings.

Often the justices tap former Supreme Court clerks for these assignments. Among those who have taken on these assignments before their stars rose are Chief Justice John Roberts, former federal judge Paul Cassell, and Jeffrey Sutton, currently a judge on the Sixth Circuit Court of Appeals.

But there is no known formal process to select outside advocates, former law clerks and litigators say.

"This is just speculation, but the are just sitting at conference, they throw names around. It's like when you are deciding who you want on your pickup basketball game," said Richard Garnett, a professor at the University of Notre Dame Law School and former clerk to former Chief Justice William Rehnquist.

Long and Farr are both veterans of the elite Washington Supreme Court bar. They were likely picked because they are experienced practitioners, once clerked for the court, and don't currently work for a law firm with clients who have a direct interest in the case.

For lawyers, the unusual gig offers prestige but also another clear advantage: the absence of a second-guessing client.

"When you don't have a client, you are doing your job simply by providing the most relevant information for the court," said Peter Rutledge, a law professor at the University of Georgia and a former clerk to Justice Clarence Thomas,

(Reporting by Carlyn Kolker; Editing by Paul Thomasch)

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