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High court, high costs

It takes a lot of money to bring a case to the Supreme Court, and even with pro bono lawyers somebody has to pay

High court, high costs

(Illustration by Krieg Barrie & Andy Hurvitz/Getty Images)

Paul Clement is one of the most successful U.S. Supreme Court litigators alive. When he stepped up to the lectern last year to argue on behalf of the Little Sisters of the Poor, unlike most other Supreme Court lawyers, he came with no notes. Even so, he could cite page numbers from the Obama administration’s briefs against the nonprofits challenging the contraceptive and abortifacient mandate.

Clement has argued so many cases before the court—more than 80—that he enjoys camaraderie with the justices. Typically his elite legal services cost $1,350 an hour, according to court documents, among the highest rates a lawyer can command. He and his law firm took on the Little Sisters’ argument pro bono, after Becket (previously known as the Becket Fund for Religious Liberty) lawyers ferried the case up to the high court.

Behind the precedent-setting religious freedom cases of the past few years are dozens of small religious nonprofits that have little money to hire attorneys, much less elite members of the Supreme Court bar. As the Supreme Court begins a term in October, the court has a number of religious exercise cases in the pipeline, including one on religious business owners in the wedding industry, Masterpiece Cakeshop v. Colorado Civil Rights Commission. How much do cases like these cost, and how do these groups pay?

ABOUT 70 NONPROFIT INSTITUTIONS filed lawsuits against the Obama administration over the contraceptive and abortifacient mandate. While lawyers handled most of the mandate cases pro bono, some religious institutions shouldered their own costs. And all had to devote staff time and resources to the cases and defend their decision to file lawsuits to board members or alumni donors. Notre Dame’s lawsuit against the mandate, for example, ignited controversy at the school.

Union University—a Christian college with about 2,800 undergraduate students in Jackson, Tenn.—was one of the 70 religious institutions that filed suit against the mandate. The school almost immediately won a preliminary injunction because of a higher court ruling, so its legal costs were lower. But it paid for its legal fees itself: north of $20,000.

“It is hard to believe that we have to spend valuable time and financial resources defending something guaranteed in the United States Constitution,” said Dub Oliver, the president of Union. “Still, we are grateful to have the opportunity to stand for our beliefs, and I hope that Christian organizations around the country will see the importance of doing the same.”

‘It is hard to believe that we have to spend valuable time and financial resources defending something guaranteed in the United States Constitution.’ —Dub Oliver, president of Union University

The lawyers for the nonprofits challenging the mandate secured a partial victory last year when the Supreme Court vacated the lower court rulings against them and ordered the nonprofits and the federal government to work out a compromise. President Donald Trump has promised to provide a broader exemption to the mandate, but nothing like that has materialized (see sidebar).

In these cases the firms offering their services for free—chiefly Jones Day, Becket, Alliance Defending Freedom, and First Liberty Institute—kept track of their hours as they would for a paying client. Prevailing parties in civil rights cases, including religious freedom, can win attorneys’ fees from the losing party at the end of litigation. Courts considering awarding fees will review estimates from law firms to make sure the amounts are “reasonable.”

Jeff Malet/Newscom

Paul Clement and members of the Little Sisters of the Poor pose outside the Supreme Court following oral arguments in the Zubik v. Burwell case. (Jeff Malet/Newscom)

Jones Day, which had the largest load at about 21 organizations, represented most of the Catholic institutions. Jones Day partner Mickey Pohl confirmed that the firm handled all of the cases pro bono, but did not elaborate on the number of hours the firm poured in. Given the number of cases the firm was handling, it likely provided millions of dollars in legal services.

Becket handled cases from about a dozen religious institutions, including Little Sisters and Wheaton College. Becket deputy general counsel Luke Goodrich estimated that the contraceptive mandate cases that went to the Supreme Court took anywhere from 2,000 attorney hours to 4,500 hours—depending on how drawn out the lower court battles were.

He said Becket’s cases typically have attorneys who have rates from $400 to $800 an hour. So according to his estimate, the market value of taking one of the nonprofit mandate cases from lawsuit to the Supreme Court could range from about $1 million to $2.5 million. Several of Becket’s nonprofit mandate cases went to the Supreme Court, including cases from Wheaton College, the Little Sisters, and East Texas Baptist University—a huge success for a firm that has about a dozen lawyers.

First Liberty Institute handled cases for six religious nonprofits. The firm estimated that its attorneys invested about 2,400 hours on the mandate cases, adding up to about $900,000 in services. The Alliance Defending Freedom handled cases for about 16 religious institutions, including Dordt College and Biola University, but did not return a request for comment on the hours of services it provided. Last year Clement’s firm Bancroft did 6,000 hours of pro bono work, or about 355 hours per attorney. At Clement’s rate, that’s a market value of about $480,000 of his donated time.

At firms like Becket, lawyers aren’t making their market rate of $400 to $800 an hour, so the actual costs are lower. Becket’s top attorneys—Harvard Law graduates and former circuit court clerks—have salaries of about $160,000, according to the group’s tax documents. That’s well below what they would make in the private sector, but it’s about equivalent to the salary of a senior government lawyer.

RELIGIOUS LIBERTY CASES can take time. For nine years, Becket, the Alliance Defending Freedom, and private firm Ellis, Li & McKinstry handled a case defending the Stormans family in Washington state. The Stormanses owned a pharmacy called Ralph’s Thriftway. A new state rule required the family pharmacy to stock abortifacients, but the family objected because they believe life begins at conception.

The battle with the state over the course of nine years racked up millions in legal costs. At one point about five years into the litigation, when the pharmacy owners had won their case at one federal court, the firms representing the Stormanses filed a motion to recover their fees and costs of about $2.7 million.

But that wasn’t the end of the case. After more years of back-and-forth in the lower courts, the Supreme Court rejected the family’s appeal, and the 9th U.S. Circuit Court of Appeals ruling against the family was final. The family’s lawyers couldn’t win back attorneys’ fees.

Sometimes it goes the other way. Goodrich, Becket’s deputy general counsel, was one of the lead attorneys in a recent case defending Native Americans who use eagle feathers for religious rites. Becket won the case, and also won a $500,000 settlement to cover attorneys’ fees over the course of the litigation.

When Hobby Lobby won its case against the mandate at the Supreme Court, the other for-profit plaintiffs were able to recover some of their costs. They all settled costs privately with the government. That’s the ideal approach for lawyers, to negotiate between attorneys on fee settlements rather than discussing their fees publicly in court.

Were the millions in dollars in litigation costs worthwhile? Goodrich says yes and points to the precedents potentially set. In 2012, for instance, Becket won a unanimous Supreme Court ruling in Hosanna Tabor v. EEOC that preserved the right of religious organizations to make their own hiring and firing decisions.

Chip Somodevilla/Getty Images

Lori Windham (center), senior counsel for Becket, addresses the news media in front of the Supreme Court. (Chip Somodevilla/Getty Images)

“There are so many employment discrimination cases out there that get filed against religious organizations,” Goodrich said. Under Hosanna Tabor “a big chunk of those cases … either never get filed or get dismissed right at the outset. So it ends up saving churches and other religious organizations tens of millions of dollars in defendant attorneys’ fees.”

And small nonprofits do need Supreme Court specialists. An investigation in 2014 by the Reuters news service found that a group of eight lawyers argued 20 percent of cases at the court in the previous decade. Expensive Supreme Court specialists tend to find success due to their rapport with and understanding of the justices.

The Reuters report recounted one experienced criminal attorney, Robert Goldman, whose case went to the Supreme Court in 2010, Bond v. United States. A few days before Goldman’s brief was due, Clement’s firm called to see what he thought about Clement arguing the case in Goldman’s place.

“Mama didn’t raise no fool,” Goldman said. Clement argued the case and won a unanimous ruling for the client.

Litigation in limbo

What’s going on at the Department of Health and Human Services? As the religious nonprofits challenging the contraceptive and abortifacient mandate are still waiting to hear whether the Trump administration will issue a broader religious exemption, their cases are ongoing in courts along with their legal costs.

In May, the news site Vox obtained a leaked proposed regulation that would vastly expand the religious exemption to the mandate, likely resolving most of the religious nonprofit lawsuits. But four months have passed without that regulation seeing the light of day.

While nonprofits wait for the Trump administration to take action, their lawyers attend hearings where the Trump Justice Department is on the other side of the courtroom. All of the names of the cases have changed to “v. Price” as in, Little Sisters of the Poor v. Price in reference to new HHS Secretary Tom Price. Price has promised in the past that he would protect religious employers from the mandate.

Recently the Catholic Benefits Association, a plaintiff against the mandate, wrote a letter to the White House expressing displeasure about the delay and asking Justice Department lawyers to agree to a permanent injunction to end the group’s court battle. CBA is using a private law firm, and CEO Doug Wilson estimated their legal costs in the seven figures.

“We’re pretty baffled that … nothing more definitive has happened,” said Wilson, referring to Trump’s promises and his executive power to issue the regulation at any moment. —E.B.

Emily Belz

Emily Belz

Emily is a senior reporter for WORLD Magazine. She is a World Journalism Institute graduate and previously reported for the The New York Daily News, The Indianapolis Star, and Philanthropy magazine. Emily resides in New York City. Follow her on Twitter @emlybelz.