Today’s New York Times article about Paul Clement, “Lawyer Opposing Health Law is Familiar Face to the Justices“, reminds me of an interesting moment that happened at oral arguments a few years ago. The exchange took place in Perdue v. Kenny A. between Chief Justice Roberts, Justice Alito, and Paul Clement, who was appearing before the Justices for the first time after leaving the Solicitor General’s office.

The question in the case was whether the lodestar analysis in a fee shifting statute can be adjusted upwards based on performance alone.

Chief Justice Roberts: Maybe we have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are.

(Laughter.)

Mr. Clement: And maybe your perspective’s changed, Your Honor.

(Laughter.)

Mr. Clement: But I would say certainly in the context of a consent decree, when to give up, when to fight further, is going to be factored into the results. And I think it’s a fair point that a judge in today’s system, especially in the context of class relief like this, sees a lot of cases that end up with a coupon settlement that really doesn’t do any good for the class. They’re –

Justice Alito: Maybe — maybe your perspective has changed too, Mr. Clement.

(Laughter.)

Justice Alito: But your argument is that, you know, for $495 an hour you really can’t get a good lawyer? You need to have — you need to pay more than that?

Mr. Clement: Well, on that my perspective has changed, Your Honor.

(Laughter.)

You can listen to the audio of this exchange below:


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