MAYER BROWN IN THE SUPREME COURT OF THE UNITED STATES:

A Brief History of the First Hundred (or so) Years

Today, Mayer Brown is widely regarded as having the nation’s preeminent Supreme Court practice. The current members of the firm’s Supreme Court and Appellate Practice Group have presented approximately 200 Supreme Court arguments — a breadth of experience that is unrivaled in the American legal profession. Indeed, of the four authors of the authoritative treatise on the High Court — Supreme Court Practice by Stern, Gressman, Shapiro & Geller — two are current Mayer Brown partners and one is a former partner, now deceased.

What may be less widely recognized than our current accomplishments is that Mayer Brown‘s Supreme Court practice is almost as old as the firm itself. What follows is a brief, anecdotal history of that practice.

The Early Years

The law firm that would eventually become known as Mayer Brown came into being in 1881 when Levy Mayer, a Chicago native who had recently graduated from Yale Law School (which he entered at the age of 16), joined forces with Adolf Kraus, an established Chicago attorney. Mayer was a multi-talented general practitioner (who was prominently mentioned as a possible replacement for Justice Lamar in 1916), and he conducted some of his most important advocacy in the U.S. Supreme Court.

Mayer’s first Supreme Court case was not, however, one of his successes. Swan Land & Cattle Co. v. Frank, 148 U.S. 603 (1893) — the first case argued by a Mayer Brown attorney in the Supreme Court — presented the following question:

Whether the circuit courts of the United States can properly entertain jurisdiction of a suit in equity which unites and seeks to enforce both legal and equitable demands, when the right to the equitable relief sought rests and depends upon the legal claim being first ascertained and established, and where the person against whom such legal demand is asserted is not made a party defendant; or, stated in another form more directly applicable to the present case, can a party having a claim for unliquidated damages against a corporation, which has not been dissolved, but has merely distributed its corporate funds among its stockholders, and ceased or suspended business, maintain a suit on the equity side of the United States circuit court against a portion of such stockholders, to reach and subject the assets so received by them to the payment and satisfaction of his claim, without first reducing such claim to judgment, and without making the corporation a defendant and bringing it before the court?

Id. at 604. Remarkably, at least to modern eyes, the Court was of the opinion that this question “hardly needs or requires more than its bare statement to indicate the answer that must be made thereto”! Id. at 604-05. (The apparently obvious answer was “no.”) One imagines that Levy Mayer at least took some comfort in the dissenting opinion of Mr. Justice Brown: “I concur in the opinion of the court that the question involved in this case needs little more than its bare statement to indicate the answer that should be made to it, but I do not concur in the answer made by the court.” Id. at 613.

Mayer found success before the Court in Keatley v. Furey, 226 U.S. 399 (1912), a corporations case in which he convinced a unanimous Supreme Court, speaking through Justice Holmes, that it lacked jurisdiction to hear his adversary’s appeal. Mayer also prevailed in Ferris v. Frohman, 223 U.S. 424 (1912), a copyright case in which he persuaded a unanimous Court — on the strength of his brief alone, without even having to come to Washington to argue the case — that a public performance of a play in England does not deprive the copyright owners of their common-law right in the United States to protection against unauthorized performance, even though, in England, the first public performance of a play constitutes a waiver of common-law protection.

The description by Francis Matthews, an associate at the firm at the time, of another Supreme Court case in which Levy Mayer was involved (New Jersey v. Anderson, 203 U.S. 483 (1906)), offers an intriguing look into the peculiar intricacies of Supreme Court practice around the turn of the century:

In 1904 we were retained by the State of New Jersey to test out the question whether the franchise tax levied by the State upon the capital stocks of its corporations was a tax entitled to preferential payment in a bankruptcy proceeding. At the time most of the corporations with large capital were organized in New Jersey and the revenue received by the State from the imposition of franchise taxes was so large that it was not necessary for the State to levy general taxes. The State could surely claim, as one of the lower courts said, that taxes “are the wheels of government; and when taken away or clogged, government ceases to move; or rolls with a rickety and uncertain motion.”

The situation was a peculiar one. One New Jersey Court had held that the franchise tax was not a tax but an arbitrary imposition (as all taxes really are). Another New Jersey Court had held that the franchise tax was a tax. There were two Federal decisions in other states, one holding one way and one the other, each relying on the New Jersey decision supporting its conclusion, and neither decision referred to the other. It was in this situation that the State concluded to make a final test of the question and the opportunity came in a bankruptcy proceeding in Chicago involving a New Jersey corporation. We filed the State’s claim in that proceeding asserting priority. The Referee decided against us and his action was affirmed by the Judge of the District Court, and then by the Court of Appeals. We filed a petition for an appeal to the United States Supreme Court based on the conflict in the decisions of the lower courts, which appeal was allowed.

I drafted the brief for the Supreme Court and it was set up in type at the printers [in Chicago] awaiting Levy Mayer’s revision on his return from a trip to New York. In this state of the matter we were surprised one morning to receive a telegram from the Clerk of the Supreme Court that the case would be on the call the following morning. The rules required that the briefs be on file, and that any oral arguments be made, at that time. We asked opposing counsel to extend the time to file briefs and to waive the oral argument, which they declined to do. We could not get the briefs printed in time to catch the Washington train but they were ready in the early afternoon, barely in time for me to take the New York train. I got off at Harrisburg in the very early morning at which point I took a milk train to Washington and arrived about noon without baggage. In the meantime one of the Assistant Attorney Generals of New Jersey had driven in an auto across the state and caught the midnight train to Washington. We met in the Supreme Court and I had an opportunity to acquaint him with the case.

The case was reached about 4 o’clock in the afternoon and as opposing counsel were not present and had no brief on file, the case was discussed in an informal way, which was very satisfactory. The Court was impressed with the unique situation presented by the conflicting decisions. At the conclusion of the hearing the Attorney General of the United States came into court and asked the court to give opposing counsel an opportunity to file a brief, an opportunity they had denied to us. It seems that they discovered we had found a way to get to Washington in time for the hearing. We did not deem it wise to object but the Court allowed us time for a reply and we took full advantage of that. The Court reversed the lower courts by a five to three vote. Opposing counsel afterwards expressed themselves that if they had been present the result might have been different and that they had learned a lesson in professional courtesy. And if I had not caught that train we may not have been successful.

Perhaps Levy Mayer’s most important arguments in the Supreme Court were made on behalf of the liquor industry in its battle against prohibition. In Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919), Mayer challenged on Takings Clause and Tenth Amendment grounds the constitutionality of the War-Time Prohibition Act, which made it illegal to sell alcoholic beverages in the United States during the First World War. And in Rhode Island v. Palmer (The National Prohibition Cases), 253 U.S. 350 (1920), Mayer argued that the Eighteenth Amendment was invalid for a variety of procedural and substantive reasons. The Court rejected his arguments, but refused to divulge its reasoning. Mayer’s biographer, Edgar Lee Masters, had this to say of the oral argument in the Palmer case:

Mr. Mayer’s oral argument was a marvel of condensation and directness and went straight to the mark on all the points involved. He was frequently interrupted with questions by the Chief Justice and various members of the court. His argument showed that he had every detail and every fact in every decision applicable at the end of his tongue. At the conclusion of his oral argument he rose to a very high level of eloquence. He was asked by one of the Justices whether the Tenth Amendment was subject to amendment, which was asking if the powers not delegated by the States to the United States might be taken away from the states, and whether the rights reserved to the states by not being granted might be annihilated by the same procedure which brought about the prohibition movement. Indeed, to ask the question was to raise the point whether the police power of the states, which had been invaded by the Eighteenth Amendment, could be taken from them by it. Mr. Mayer’s answer to the inquiring Justice was this:

“No, sir, it [Tenth Amendment] is not subject to amendment in my judgment except with the consent of every state. You are coming to the fork of the roads. In one direction lies the unlimited power of amendment; in the other the slogan ‘back to the Constitution.’ By the Census of 1910 a minority of our population, 40,000,000, resided in thirty-six states, while the majority, 50,000,000, resided in twelve states. [Thus, if the Tenth Amendment is subject to amendment, it is] permissible under Article Five for two-thirds * * * of a quorum [— that is, a mere minority —] of each House ratified by the Legislatures of three-fourths of the states which contain a minority of the population to change the Constitution, to abolish this Court, and to eradicate Article Three which provides for the judicial power of this and other Federal courts. It will not do to say that the people are too wise to do this. This court has turned down the argument over and over again. The claim that the delegation of power should not be checked because it will not be abused is no answer to the charge that power does not exist. As Chief Justice Marshall said in McCulloch v. Maryland (4 Wheaton 316), what state would entrust itself as a member of the Constitution of this Union if it knew that any other state could take away its power of local self-government? The theory of our government and the protection and preservation of our institutions does not rest upon confidence, that great Chief Justice proclaimed. [I]f the provision in Article Five is the only * * * limitation on the power to amend the charter of this government, and of our political existence, then the presidency may be abolished. A republican form of government may be annihilated, or a state religion established. Article Five itself, which provides for an amendment by three-fourths of the legislatures, can itself be repealed or reduced to a minority. The very proposition is staggering and it does not make any difference whether we are discussing whiskey or the sugar of Louisiana or the cotton of South Carolina, or the tobacco of Maryland and Connecticut, or the hops of Washington. I rise above the question that this concerns intoxicating liquors. I dwell upon the principle that is involved. Should the Constitution be uprooted? In a learned discussed to which I listened yesterday, one of Your Honors [Brandeis, J] referred to the fact that the minority of to-day may become the majority of to-morrow. Is it an idle proposition, is it an opium dream to suggest in this august presence the possibilities that may result from changes in political and social policies and theories, from wise and unwise, sane and insane agitation and clamor? If you remove that which the Constitution was for, as much as anything else, the protection of the minority against the majority — if you remove this check and balance, where do you leave this government and its future? Yes, the question is more than the prohibition of intoxicating liquors. The police power of the states is synonymous with sovereignty, with the state itself. Remove the police power from the state and no state exists. There is practically nothing within the exercise of the sovereign governmental powers of the states that does not finally find root in the police power as it is understood in American government. Would the thirteen original states have ever formed this Union if they believed that their sovereign power of local self-government could be destroyed without their consent?”

Another early Mayer Brown partner who had a substantial Supreme Court practice was Thomas A. Moran, a former Illinois Appellate Court judge who joined the firm in 1892. One of Moran’s most memorable victories, obtained for the Illinois Trust and Savings Bank, was Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283 (1898), in which Moran convinced the Court to reject an equal protection challenge to certain provisions of the Illinois inheritance tax laws. Perhaps the most noteworthy aspect of this case is that Moran’s opponent was former President Benjamin Harrison, who argued the cause for the losing side.

Another interesting case of Moran’s was Ambrosini v. United States, 187 U.S. 1 (1902). In his memoirs, Francis Matthews described the Ambrosini case:

Fifty cents was the amount involved in the suit of Peter Ambrosini v. The United States decided by the United States Supreme Court. Ambrosini * * * operated a saloon in Chicago. To secure his license he was obligated by City ordinance to furnish a $300 bond with sureties conditioned that he would observe all ordinances, etc. The War Revenue Act required a 50-cent revenue stamp to be affixed to all bonds. Ambrosini was indicted for failure to affix such a stamp to his bond. We defended the suit in order to make a test case. Ambrosini was found guilty and fined. We prosecuted an appeal to the Supreme Court on the ground that the bond was required as a part of the law regulating the sale of intoxicating liquors and it was therefore an instrumentality of the State in the exercise of its sovereign powers which it was beyond the power of the Federal Government to tax. This view was upheld by the Supreme Court, which followed the famous decision of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, that “the power to tax involves the power to destroy” and that if the Federal Government could require a 50¢ stamp by way of tax it could make the tax prohibitive and thus interfere with the State’s power to regulate liquor traffic. After this decision Levy Mayer sent for Ambrosini and told him that the Supreme Court had upheld his constitutional rights and he was quite impressed.

Alfred S. Austrian, who entered the firm after graduating from Harvard Law School in 1891, was perhaps best known for his representation of Charles Comiskey in connection with the 1919 “Black Sox” scandal, but he was also a prolific Supreme Court litigator. Austrian litigated a series of constitutional law cases seeking to overturn various statutes on due process and equal protection grounds. For instance, in Dreyer v. Illinois, 187 U.S. 71 (1902), Austrian argued that the use of parole boards — still a new concept at the time — violated the Due Process Clause by vesting judicial power in the hands of executive officers. In addition, emboldened by the philosophy of the Lochner era, Austrian unsuccessfully attempted to convince the Court: (1) that the grading of a municipal license fee for theaters according to the price asked for the highest priced seats, rather than according to revenue, constituted a denial of equal protection (Metropolis Theater Co. v. City of Chicago, 228 U.S. 61 (1913)); and (2) that a California statute that criminalized the keeping of billiard or pool tables for hire except by large hotel keepers constituted a denial of equal protection and substantive due process (Murphy v. California, 225 U.S. 623 (1912)). In the latter case, the Court remarked: “That the keeping of a billiard hall has a harmful tendency is a fact requiring no proof, and incapable of being controverted by the testimony of the plaintiff that his business was lawfully conducted, free from gaming or anything which could affect the morality of the community or of his patrons.” Id. at 629. Austrian indeed faced an uphill battle against precedent in that case: “For Lord Hale in 1672 (Rex v. Hall, 2 Keble, 846) upheld a municipal bylaw against keeping bowling alleys because of the known and demoralizing tendency of such places.” Murphy, 225 U.S. at 630.

Like Austrian, Levy Mayer also undertook to convince the Court to extend its Lochner-era laissez-faire jurisprudence. In Stafford v. Wallace, 258 U.S. 495 (1922), Mayer was able to persuade only Justice McReynolds — the most conservative of the anti-New Deal “Four Horsemen” — that the Packers and Stockyards Act of 1921, which regulated business practices in the meat industry, exceeded Congress’s power under the Commerce Clause.

Levy Mayer was not the only Supreme Court advocate in the family. His brother, Isaac Mayer, argued for the firm on behalf of the Wrigley Company in an unfair competition case (L.P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 277 U.S. 97 (1928)), and his nephew, Richard Mayer, argued two cases for the firm: a banking case (City of Marion v. Sneeden, 291 U.S. 262 (1934)), and a price-fixing and unfair competition case (Old Dearborn Distrib. Co. v. Seagram-Distillers Corp., 299 U.S. 183 (1936)).

It was also around this time that the firm hired its first of many former Supreme Court law clerks: Irving B. Goldsmith, a 1926 graduate of Harvard Law School, joined the firm following his clerkship with Justice Brandeis. The firm in general and the Supreme Court and Appellate Practice Group in particular have benefited greatly over the years from contributions by former Supreme Court law clerks, who bring a special insight into the Court’s operations.

The 1930s also saw oral arguments before the Court by Frederic Burnham, who joined the firm in 1917, and Herbert Friedlich, who joined in 1926. Burnham argued Local Loan Co. v. Hunt, 292 U.S. 234 (1934), a banking case, and United States v. Borden Co., 308 U.S. 188 (1939), an antitrust case. Friedlich, who had been a protégé of Felix Frankfurter at Harvard Law School, argued Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, R.I. & P. Ry. Co., 294 U.S. 648 (1935), an important bankruptcy case. In the 1940s, Friedlich went on to argue two significant tax cases: Harrison v. Schaffner, 312 U.S. 579 (1941), and Spiegel’s Estate v. Commissioner, 335 U.S. 701 (1949).