Consovoy Boutique Firm Back to High Court for Student Loans (1)

J. Michael Connolly, who has spent his career behind the scenes in US Supreme Court cases, will make his argument debut in a high-stakes challenge to President Joe Biden’s $400 billion student loan debt relief program.

Attorneys from Consovoy McCarthy, a boutique firm that’s carved a niche trying to sway the justices on behalf of conservative causes, have appeared many times before the justices. This will be the first since the death of founding partner William Consovoy of cancer in January at 48.

Connolly’s moment at the lectern reflects a Consovoy practice—rare in the world of Supreme Court advocacy—of opening up arguments to multiple attorneys at the same firm.

Connolly, who usually writes briefs, joins a deep bench that will have argued 10 high court cases since 2014, including challenges to affirmative action programs at Harvard and the University of North Carolina.

On Feb. 28, Connolly will represent two student loan recipients who argue they were unfairly excluded from the maximum benefits of the Biden program that’s on hold due to legal challenges. He brought in the clients, crafted the litigation strategy, and litigated the case in lower courts, partner Thomas R. McCarthy said.

“This was always Mike’s case, and no one could do a better job on it than him,” said Patrick Strawbridge, another firm partner.

With a focus on regulatory, constitutional, and complex civil litigation, Connolly was the lead attorney on an amicus, or friend-of-the-court brief filed on behalf of Minnesota state court employees in 2018’s Janus v. AFSCME. That Supreme Court decision overturned a decades-old ruling requiring public employees to pay union dues.

Connolly, a New York University law school graduate and former Tenth Circuit clerk, similarly led a successful amicus effort last term to limit EPA’s authority to regulate climate change, in West Virginia v. EPA.

Consovoy McCarthy has been at the heart of other conservative causes at the court.

In addition to the affirmative action cases in which Strawbridge and Cameron T. Norris argued in October, Strawbridge represented Donald Trump in his 2019 bid while president to withhold financial records from Congress, in Trump v. Mazars.

Jeffrey Harris made his Supreme Court debut in the 2019 blockbuster Bostock v. Clayton County, on whether federal law protected LGBTQ workers from employment discrimination. It does, the justices said.

McCarthy and Taylor Meehan have also argued on behalf of the firm, and Tyler Green appeared before the court when he was Utah solicitor general.

William Consovoy argued twice, both times in 2015.

One case was about the ability of Congress to designate individuals to sue in federal courts in Spokeo, Inc. v. Robins. And in Evenwel v. Abbott, he led the bid to limit the number of people counted for voting purposes in a way that would have been favorable to Republicans. The court said states weren’t required to do it that way, but left open the question of whether they could.

Consovoy’s limited experience at the high court was purposeful. McCarthy said the plan was to create a team that doesn’t depend on any one lawyer.

This approach counters the generally accepted “constellation model” in which one attorney handles all Supreme Court arguments for a firm, and proved important when Consovoy stepped aside from the affirmative action arguments due to cancer treatment.

The firm hires young lawyers with the goal of getting “them on their feet as soon as possible—at all levels,” Strawbridge said.

David Lat, who writes a newsletter on the law and the legal profession, Original Jurisdiction, said it’s remarkable for Consovoy to have that many lawyers with high court experience—particularly considering its small size.

“I’m hard-pressed to think of a firm—of any size—where more than a third of the lawyers have argued before the high court,” he said.

The case is Department of Education v. Brown, U.S., No. 22-535.