The Supreme Court and Test Cases

Joan Biskupic has an incredibly interesting article for Reuters about the man behind Fisher v. University of Texas and Shelby County v. Holder. Apparently Edward Blum, a 60-year old former stockbroker, recruited both Fisher and Shelby County for their challenges and, along with a group of conservative financiers, is paying the legal bills for both. A very interesting look inside two of the biggest cases of the Term.

Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s – a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores. Blum eventually got Shelby County to file suit after trolling government websites and cold-calling a county official.

Blum introduced Fisher’s father and Shelby County officials to the same high-priced but politically sympathetic Washington lawyers, who agreed to work for a cut rate to be billed to Blum’s backers. Neither Fisher nor Shelby County is paying to fight the cases that bear their names.

It makes me think about the biggest cases in recent years and how many of them were test cases and how many were real “controversies” that started out the organic way. The last major Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder, was a test case as well; former Solicitor General of Texas Gregory Coleman took the case from complaint to the Supreme Court. The healthcare cases were definitely test cases. As Tom Goldstein notes at SCOTUSblog, the pending DOMA and Same-Sex Marriage cases are test cases, although they don’t have the same coordinated flavor of some conservative test case. Hollingsworth v. Perry is a quintessential test case: David Boies and Ted Olson picked ideal plaintiffs to take their Prop 8 challenge through the federal courts. Office of Personnel Management v. Gil, a case out of the First Circuit, was backed by GLAD, the Gay & Lesbian Advocates & Defenders. Windsor v. United States was filed with assistance from the ACLU.

It can be difficult to define a “test case.” Plaintiffs in all of these cases want the relief they seek—Shelby County would be very happy to be freed from the yolk of Section 5 and the Prop 8 plaintiffs would like to be married—and many start out with their cases looking to challenge major pieces of legislation. But the defining feature of a test case is that the plaintiffs are picked from among many and backed by larger organizations. Sometimes they are prodded into filing, and sometimes they are picked from among many willing candidates. But test cases come in many shapes and sizes.

One way to figure out if a case is a test case is to look at the lawyers. In NWAMUDNO, for example, Coleman, a major player in the conservative legal movement, took a case from start to finish. In other big cases, minor litigants manage to get their cases to the Supreme Court and then switch to high-profile lawyers to argue their position (or even stick with their original lawyer).

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