Charles J. Cooper founding member and chairman of Cooper & Kirk. Courtesy photo

On Jan. 15, 1985, a young Chuck Cooper made his first appearance as an advocate in the U.S. Supreme Court, defending the Reagan administration's policies in one of the most divisive cases of the decade. It was an experience that set the tone for a brilliant legal career that has so far spanned five decades and thrust Cooper into the spotlight in some of the most historic moments of the country's modern history. Bowen v. American Hospital Association was the first of the so-called "Baby Doe" cases, which represented the U.S. government's first attempts to directly intervene in treatment options for babies born with severe congenital defects. As a Justice Department lawyer, 33-year-old Cooper was tasked with defending federal government policies aimed at forcing life-prolonging medical treatment. "The 'treatment option' at issue in my case was to simply let her slowly die from dehydration by denying her water or any other sort of nourishment," said Cooper. Picketers lined up outside the court that day, placards in hand, each side shouting that the other's beliefs were un-American and just plain wrong. Undaunted, Cooper marched straight up the marble steps and through towering Corinthian columns with a certainty of conviction that has remained with him throughout his career. Last month, almost 36 years to the day since his first appearance, Cooper walked those same steps for his ninth time at the podium, flanked once more by demonstrators. On Jan. 19, Cooper appeared in Federal Election Commission v. Ted Cruz for Senate on behalf of U.S. Sen. Ted Cruz, R-Texas. In an interview with The National Law Journal, Cruz said it is a case that he and Cooper had talked about bringing "for a long time." "If you're crafting a strategy for litigation to challenge a federal statute, or regulation that's unconstitutional, to win in the trial court and then to win in the Supreme Court, there's nobody better on planet Earth than Chuck," Cruz told the NLJ.

Noel Francisco, partner in charge at Jones Day, speaking at a panel discussion during "Law Symposium: Justice Thomas's Thirty-Year Legacy on the Court" in Washington, D.C., on Thursday, October 21, 2021. Photo: Diego M. Radzinschi/ALM

Over the last three and a half decades, Cooper has become the doyen of the conservative bar and one of the most well-regarded litigators in Washington, while his firm, Cooper & Kirk, has become an institution inside the Beltway and has fostered some of the best legal minds in the country, as well as some of the most storied. Cruz himself, a lawyer before he was a politician, started out in D.C. as an associate at Cooper & Kirk. He first met Cooper in 1997 while clerking for Supreme Court Chief Justice William Rehnquist. Cooper, who had clerked for Rehnquist in the 1970s, had just formed his own firm, and recruited Cruz heavily. "The firm was six lawyers and just nine months old," Cruz said. "Chuck made the case to roll the dice and gamble with what they were creating. At the end of the day, it wasn't much of a dice roll, because it was clear to me even then that he was a world-class litigator. And what I was looking for more than anything else, was to go work for lawyers from whom I wanted to learn how to practice law." Yet Cruz's fellow SCOTUS clerks were less convinced. Several of his clerking colleagues — who were headed to Big Law after their clerkships — thought it a risky move. Besides, they said, if the next government was a Republican administration, Cooper was an obvious choice for Solicitor General. And if Cooper left, it would be devastating to the firm, they told Cruz. "I remember laughing, saying, 'Who would you want to work for? Someone who is obviously a superstar, or someone who would never be considered for the top post?'" Cruz told the NLJ. "It seemed like an easy decision ... as a 27-year-old baby lawyer. There were worse things in life than if your boss becomes the Solicitor General of the United States." Decades on, the senator trusts Cooper implicitly. If Cruz had been elected president in 2016, he says he would have nominated Cooper as attorney general. Cooper was also an influential voice in a key moment in recent American legal history, when in 2016, President-elect Donald Trump all but offered former presidential candidate Sen. Ted Cruz a seat on the U.S. Supreme Court, according to Cruz and confirmed by Cooper. In the interview with the NLJ, Cruz recounted a November 2016 meeting at Trump Tower with Trump. "President Trump leaned in—significantly—pressing me to consider the Supreme Court, and possibly being nominated to replace Justice Scalia," Cruz told the NLJ.

Judge James Ho, of the U.S. Court of Appeals for the Fifth Circuit, speaking at a panel discussion during the "Law Symposium: Justice Thomas's Thirty-Year Legacy on the Court," Co-hosted by The C. Boyden Gray Center for the Study of the Administrative State and The Heritage Foundation, in Washington, D.C., on Thursday, October 21, 2021. Photo: Diego M. Radzinschi/ALM

Justice Antonin Scalia had passed away in February that year, leaving vacant a critical seat on the Supreme Court. With the potential of giving Democrats a majority on the court, Scalia's seat was hard-fought-over in Congress; President Barack Obama's nominee Merrick Garland's confirmation hearing was blocked by Sen. Mitch McConnell and the Republican majority. The seat was eventually filled the following term by Trump's nominee, Neil Gorsuch, who at the time was a judge in the U.S. Court of Appeals for the Tenth Circuit. Cruz was one of Trump's main adversaries in the 2016 primaries. Whether or not Trump genuinely wanted Cruz on the Supreme Court, the result would have also taken his longtime adversary out of contention for any further political fights. Cruz reiterated to the NLJ information he originally disclosed in his 2020 book, "One Vote Away: How a Single Supreme Court Seat Can Change History": "I didn't want to be a judge. But that's a decision I wrestled with vitally." He said he "prayed about it," and "talked with my family" and his pastor. Crucially, Cruz revealed to the NLJ, "I talked with Chuck at great length, because he understood firsthand what being a Supreme Court justice would entail." Cruz said Cooper also "understood the political battles I'm engaged in in the Senate." Cruz said he grappled with the decision for weeks before finally rejecting the idea. Less than two months later, Trump nominated Gorsuch, Cruz issued the following statement: "Last year, after the unexpected passing of Supreme Court Justice Antonin Scalia, Senate Republicans drew a line in the sand on the behalf of the American people. Exercising our constitutional authority, we advised President Obama that we would not consent to a Supreme Court nominee until We the People, in the presidential election, were able to choose between an originalist and a progressive vision of the Constitution. ... Today, with the nomination of the Honorable Neil Gorsuch from the Tenth Circuit Court of Appeals, President Trump has fulfilled that promise, and the rule of law will be all the better for it." On the decision—which could have resulted in Supreme Court Justice Cruz instead of Justice Gorsuch—Cooper told the NLJ, "All I am comfortable saying is that I advised against it." "He taught me how to be a lawyer—how to analyze a case, get inside what the judges are thinking, [and] how to craft a strategy to win impossible cases," said Cruz. "In my subsequent legal career, that's really what I focused on; taking cases nobody else thought you could win, and winning them over and over and over again. And that's what I learned from Chuck." As a political figure, Cruz has since been a client of the firm on several occasions. This time to challenge the constitutionality of the FEC's $250,000 limit on post-election contributions congressional candidates can use each cycle to pay off debt owed to candidates from their campaigns. "It is challenging a provision of the federal campaign finance laws that I think is obviously unconstitutional, and that is designed to make it harder to challenge incumbent politicians," Cruz said. For Cooper, the FEC's limits are a clear infringement on Cruz's First Amendment right to free speech and yet another opportunity to curb government encroachment into the rights of citizens—an area of litigation firmly in his wheelhouse after over 40 years of championing conservative causes in the nation's capital. Cooper is comfortably at home in the Halls of Power inside the Beltway, including in the highest court in the land. At the podium on Jan. 19, Cooper faced not only challenges to the substance of his client's case but also his right to standing — to bringing the case in the first place — because Cruz had admittedly acted deliberately in a way that would bring about a suit against the FEC. To those challenges, Cooper cited a case from America's distance past — the landmark 1896 Plessy v. Ferguson:

"At least since Mr. Plessy sat down in the train car reserved for whites, this Court has repeatedly held that a plaintiff who deliberately subjects himself to the injury of unconstitutional government action for the admitted purpose of challenging it has created his standing, not defeated it."

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Commanding the Courtroom

Even back in 1985, during his first SCOTUS appearance in Bowen, he was already well familiar with the inner workings of the court. In the 1978-79 term, he clerked for Rehnquist—an experience that Cooper believes was a defining moment for his career. "To this day, I remember the interview, and how easygoing and personable and friendly he was," Cooper told the NLJ in an exclusive interview for this article. "It was not one of those difficult, substantive, argumentative grillings."

Chief Justice William H. Rehnquist (1972-).Chief Justice, Supreme Court of the United States..Credit: Dane Penland, Collection of the Supreme Court of the United States

Cooper remembers telling the justice that it would be a "real honor" to come and spend a year as his clerk. "I told him that in my constitutional law class, I had regularly risen to my feet [all alone amid his liberal classmates]—arguing the Rehnquist position," said Cooper. "When he hired me, it obviously changed everything." Since Bowen, guiding cases from the court of first instance all the way to the appellate courts has become a hallmark of the Cooper way of lawyering. Throughout his private practice—first at McGuireWoods, then Shaw Pittman (now Pillsbury Winthrop Shaw Pittman) and finally at his own firm, Cooper & Kirk—Cooper has made a name as a strong and versatile litigator who is comfortable in any venue, able to simultaneously concentrate on winning the trial at hand while also laying the groundwork for success in higher courts. During oral arguments in Bowen, Cooper was sure-footed in his legal reasoning and confident in his delivery. On numerous occasions when Justice Sandra Day O'Connor fired off questions, interrupting his delivery, Cooper quickly answered her but kept on track. Toward the end of Cooper's time at the podium, Justice Thurgood Marshall gave him a short lecture on federalism. And Cooper held his own:

Marshall: Mr. Cooper, the truth is that the federal government is just taking over the state's function.