On November 18, the Supreme Court invited H. Bartow Farr to brief and argue an important point of law in the Healthcare Cases: that the minimum care provision of the Affordable Care Act is severable from the rest of the statute. Although Farr may be among the least well-known advocates arguing in the Healthcare cases, he has long held a sterling reputation within the Supreme Court Bar. I’ve created a brief profile of Farr to show he achieved such an impressive reputation at the Court and within the bar.
I. The Basics
Full name: Henry Bartow Farr III
Born: November 11, 1944 (Age 67)
Undergraduate: A.B. Princeton (1966)
Law School: J.D. Arizona State University (1973), summa cum laude; Editor-in-Chief of the Arizona State Law Journal
Clerkship: Justice William H. Rehnquist (1973-1974)
Government Experience: Assistant to the Solicitor General (1976-1978)
Current Firm: Farr & Taranto (1981-present)
Supreme Court Arguments: 30
II. Appellate Experience
Farr’s resume boasts at least two of the standard characteristics of a modern Supreme Court litigator: a Supreme Court clerkship and a stint in the Office of the Solicitor General. His law school pedigree diverges from the norm–he attended Arizona State University School of Law–but he graduated summa cum laude and served as editor-in-chief of the law review during his time there.
A few years after he completed his clerkship with then-Justice Rehnquist, Farr was hired as an Assistant to the Solicitor General and served for a standard two-year stint from 1976 to 1978. He argued five cases during his time there, including four cases revolving around Indian law.
In 1981, soon after leaving the Office of the Solicitor General, Farr joined with Joe Onek and Joel Klein to start Onek, Klein & Farr. The firm specialized in complex and appellate litigation and eventually developed an impressive reputation for Supreme Court litigation. Notably, this firm predated Rex Lee’s move to Sidley Austin to begin the first major private Supreme Court practice of the modern era. In 1991, the firm split and Farr joined Paul Smith and Richard Taranto to form Klein, Farr, Smith & Taranto. The firm eventually became Farr & Taranto when Smith left for Jenner & Block and Joel Klein left for the Department of Justice. Name partner Richard Taranto was recently nominated to Court of Appeals for the Federal Circuit, leaving the firm’s future in limbo.
III. Notable Cases
Farr’s most notable argument came in 2001 when he represented the Professional Golfers Association in PGA Tour v. Martin. Farr also represented National Cable Television, one of two respondents in City of New York v. FCC.
A complete list of his oral arguments at the Supreme Court follows:
- 1. Rosebud Sioux Tribe v. Kneip (1977) (as Assistant to the Solicitor General)
- 2. Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. (1977) (as Assistant to the Solicitor General)
- 3. Simpson v. U.S. (1978) (as Assistant to the Solicitor General)
- 4. Oliphant v. Suquamish Indian Tribe (1978) (as Assistant to the Solicitor General)
- 5. U.S. v. John (1978) (as Assistant to the Solicitor General)
- 6. Pennhurst St. School & Hosp. v. Halderman (1984)
- 7. Pennhurst St. School & Hosp. v. Halderman (1984) (reargued)
- 8. Zauderer v. Office of Disciplinary Councel of the Supreme Court of Ohio (1985)
- 9. Hooper v. Bernalillo County Assessor (1985)
- 10. City of New York v. FCC (1988)
- 11. Liljeberg v. Health Servs. Acquisition Corp. (1988)
- 12. Liljeberg v. Health Servs. Acquisition Corp. (1988) (reargued)
- 13. Brown-Ferris Indus. of Vermont v. Kelco Disposal (1989)
- 14. Missouri v. Jenkins (1990)
- 15. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990)
- 16. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990) (reargued)
- 17. Ford Motor Credit Co. v. Dep’t of Revenue, State of Fl. (1991)
- 18. Masson v. New Yorker Magazine (1991)
- 19. Cipollone v. Liggett Group, (1992)
- 20. Cipollone v. Liggett Group, (1992) (reargued)
- 21. Turner Broad. System v. FCC (1994)
- 22. Allied-Bruce Terminix Co. v. Dobson (1995)
- 23. Turner Broad. System v. FCC (1997)
- 24. El Paso Natural Gas Co. v. Neztsosie (1999)
- 25. PGA Tour v. Martin (2001)
- 26. California Franchise Tax Bd. v. Hyatt (2003)
- 27. Olympic Airways v. Husain (2004)
- 28. Long Island Care at Home v. Coke (2007)
- 29. New Jersey v. Delaware (2008)
- 30. U.S. v. Eurodif S.A. (2009)
Ultimately, the punchline is that Farr holds a stellar reputation for appellate advocacy. He is clearly an elite member of the Supreme Court bar, using either a mechanical definition or a more subjective one. His selection should come as no surprise and it will serve to push this well-respected advocate into the spotlight. To say that he deserves the appointment is an understatement.
Ordinarily, appointed amici are chosen by the Justice who oversees the circuit from which the case arrises–which would suggest that Farr was chosen by Justice Thomas–but the scope of this case means that other Justices may have weighed in. On the other hand, the assignment may have been given to Justice Thomas, who in turn decided to appoint two experienced advocates because they would simply be more likely to brief and argue the case at the highest level.