Justice Clarence Thomas (2015). Photo: Diego M. Radzinschi/ ALM

Atlanta appellate attorney Amy Weil says she hands out her business cards whenever opportunities arise. A number of those cards and a professional connection to Justice Clarence Thomas earned her a U.S. Supreme Court argument that many lawyers would covet.

Weil of The Weil Firm was picked last year to argue as a friend of the court, supporting an appeals court decision that the U.S. Justice Department had chosen no longer to defend. It was a rare opportunity—the court picks amicus counsel only a handful of times every year, and those slots have often gone to former Supreme Court clerks.

“When the court asks for your help, the only real answer is yes. I took this as a public service,” former Thomas clerk and Gibson, Dunn & Crutcher partner Helgi Walker, who argued as an appointed amicus in 2016, once remarked in an interview.

Thomas broke with that tradition in appointing Weil.

Weil lost her first high court case Tuesday when the unanimous decision in Culbertson v. Berryhill was issued. Just hours after she heard the news, there was only gratitude for what she called the “awesome experience” of arguing before the justices and a “leap of faith” by Thomas.

Thomas had picked Weil as amicus counsel to defend a ruling by the U.S. Court of Appeals for the Eleventh Circuit after the U.S. Justice Department, in a change of position, agreed with the petitioner, Richard Culbertson, an Orlando, Florida, social security disability practitioner.

Amy Weil

Weil said Thomas likely was aware of her long appellate experience in the Eleventh Circuit, for which Thomas serves as circuit justice. Weil was a former federal prosecutor who spent 25 years in the U.S. Attorney's Office for the Northern District of Georgia, 18 of which she served as chief of the appellate division. She has argued five en banc Eleventh Circuit arguments.

Thomas, Weil said, has spoken twice at the Eleventh Circuit Appellate Practice Institute, a seminar that she helped to establish. “I had the pleasure of meeting him on several occasions and always expressed an interest in arguing in the Supreme Court,” Weil said in an interview. “I have been pretty relentless at times. I give my card everywhere and he probably has a lot of them.”

Weill said Thomas was “very generous” to offer her the argument because he could have turned to a regular of the Supreme Court bar. “It's a lot of work and having experience is helpful,” she said. “But it is also good for them to hear from other people, not just the people they are used to hearing from. I think others might approach arguments in a different way if not part of the Supreme Court bar.”

Arguing at the high court can be “pretty much a nightmare,” Justice Elena Kagan said in remarks in 2017—but generally not for members of the Supreme Court bar.

Many arguments are made by what Kagan described as “repeat players”—lawyers who “know the court, who know the process of arguing before the court, who know what it we like, who know what they should be doing, what they shouldn't be doing.”

Justice Elena Kagan (2015). Credit: Diego M. Radzinschi / ALM

Weil said arguing the case was her “greatest professional experience,” while writing the brief was the hardest. “I did eight moot courts” she said. “I would have done more. You can never prepare enough. The bar, my colleagues, were so generous with their time in helping to moot me.”

Weil said she hopes her “outsider” appointment sets a precedent for more such appointments and more appointments of women. And, yes, she would do it again if asked. “Of course,” she said.

The Culbertson case may have flown low on the public's radar, but it was important to social security disability lawyers who handle some of the more than 12,000 social security disability appeals reviewed annually by federal courts.

In his opinion, Thomas agreed with Culbertson's counsel, Daniel Ortiz of the University of Virginia School of Law, that federal law did not cap attorney fees at 25 percent of a claimant's past-due benefits for an attorney's representation both before the agency and the court but had separate 25 percent fee caps for court and agency representations.

Although rejecting Weil's contrary arguments, Thomas said she “ably discharged” her assigned duties.

 

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