Carter G. Phillips
CARTER G. PHILLIPS is the chair of the firm’s Executive Committee and was the managing partner of its Washington, D.C. office from 1995 to 2012. He served as a law clerk to both Judge Robert Sprecher on the United States Court of Appeals for the Seventh Circuit and Chief Justice Warren E. Burger on the United States Supreme Court. Carter also served as Assistant to the Solicitor General and argued nine cases on behalf of the federal government in the United States Supreme Court. At Sidley, Carter has argued 74 cases in the Supreme Court. His total of 83 arguments before that Court are the most of any lawyer currently in private practice. Carter also has argued more than 100 cases in United States courts of appeals, including at least one in every circuit in the country, and more than 30 in the Court of Appeals for the Federal Circuit.
Representative cases in the Supreme Court include:
- FERC v. Electric Power Supply Association, et al., No. 14-840 (Jan. 25, 2016), which involved the Federal Energy Regulatory Commission’s (FERC) authority to regulate the compensation that regional transmission operators pay for demand response services.
- Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (13-854), which involved the question whether a district court’s factual finding in support of its construction of a patent claim term should be reviewed de novo, as the Federal Circuit requires, or for clear error.
- Alice Corporation PTY. LTD. v. CLS Bank International (134 S. Ct. 2347), which determined whether claims to computer-implemented inventions — including claims to systems and machines, processes and items of manufacture — are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by the Supreme Court.
- Octane Fitness v. Icon Health & Fitness (134 S. Ct. 1749), in which the Court determined whether the “exception case” requirement in 35 U.S.C. § 285 requires that the losing party have both an objective and a subjective belief that the case lacked merit.
- Ken Salazar v. Ramah Navajo Chapter (132 S. Ct. 995), in which the Court determined that the government is required to pay all of the contract support costs incurred by tribal contractors under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 et seq., even though Congress imposed an express statutory cap on the appropriations available to pay all such costs to all Tribes and the Secretary was unable to pay the full costs for each tribal contractor without exceeding the aggregate statutory cap.
- General Dynamics v. United States; The Boeing Company v. United States (131 S. Ct. 1900), which determined whether the government can maintain its claim against a party (for more than $2 billion) when it invokes the state secrets privilege to completely deny that party a defense to the claim.
- Federal Communications Commission v. Fox Television Stations (132 S. Ct. 2307), in which the Court held that because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were unconstitutionally vague.
Carter’s advocacy on behalf of clients has earned him acknowledgement in numerous publications. An academic study of Supreme Court briefs from 1946 to 2013 found Carter to be one of the most successful lawyers to argue in front of the Supreme Court. The analysis, “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence,” led the author to conclude that “not only is Phillips a seasoned Supreme Court litigator, but he is also one of the most successful Supreme Court brief-writers.”
In recognition of Carter’s litigation success, he has been ranked among the nation’s top lawyers by Chambers USA, The Legal 500 United States, Benchmark Litigation, The Best Lawyers in America, Who’s Who Legal and the National Law Journal. Carter consistently is recognized by Chambers USA as being in the nation’s top tier of appellate lawyers and regularly receives the directory’s highest level “Star” ranking. That publication said that Carter is “one of the leading lights of the appellate Bar, described as ‘a truly unique talent’ whose incredible expertise sees him appear frequently before the Supreme Court.” Over the years, sources have told Chambers that Carter is “in a league of his own” with “a CV that stretches from the U.S. to London,” noting especially that he “enjoys a lot of credibility with the Supreme Court and has an amazing track record,” and that “there’s nobody quite like him on an appellate issue.” Benchmark Litigation also names Carter a “Litigation Star,” calling him “a household name” in the appellate world.
In 2015, Carter was named to the National Law Journal’s list of Litigation Trailblazers, as well as named to the Who’s Who Legal: Business Crime Defence list. In The Legal 500, Carter is recommended as a “Leading Lawyer.” Carter was named to the 2013 National Law Journal list of “The 100 Most Influential Lawyers in America.” He was also named one of the 2012 “Lawyers of the Year” in the area of Litigation - Regulatory Enforcement by Best Lawyers. Washingtonian magazine named Carter to its list of Washington’s Best Lawyers as one of the region’s “best legal minds” for his Supreme Court practice, every year since 2013. He has been listed in the top 10 among Super Lawyers magazine’s Top 100 lawyers in Washington, from 2007–2016, based on a vote of peers, and also earned a spot on Law360’s list of Appellate MVPs that year. Carter was honored as one of “The Decade’s Most Influential Lawyers” in 2010 by the National Law Journal. Recognized as one of the lawyers who has “defined a decade” with “a reputation as the point man for high-level appellate cases.” Carter was noted in the Journal for his successful representation of clients in the Supreme Court, and his pro bono and other appellate representations. A year earlier, Carter was named one of the “90 Greatest Washington Lawyers of the Last 30 Years” by the Legal Times. He was also selected by his peers to be included in the 2007 edition of The Best Lawyers in America in the specialty of Appellate Law and has been listed every year since.
Carter’s practice has been featured in articles in Forbes, the American Lawyer, Business Week, Legal Times, the National Law Journal, USA Today and Legal Business (a publication in England). He frequently speaks at conferences, law schools and before industry groups regarding his experience before the Supreme Court.
Carter is acknowledged as one of the leading appellate lawyers in the United States, having handled cases at all levels of state and federal court systems. His representative cases include:
- Gross v. FBL Financial Services (08-441), which decided whether the burden of proof ever shifts to the employer in an age discrimination lawsuit.
- Albert Florence v. Board of Chosen Freeholders of the County of Burlington (10-945), which determined that the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual admitted into the general jail population, even those admitted for minor offenses.
- Chamber of Commerce v. Whiting (09-115), which determined whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly preempts any state or local law; whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law; and whether the Arizona statute is impliedly preempted because it undermines the comprehensive scheme that Congress created to regulate the employment of aliens.
- Douglas v. Independent Living Center of Southern California (09-958), which determined whether Medicaid providers may maintain a cause of action directly under the Supremacy Clause to enforce protections provided by 42 USC § 1396a(a)(30)(A) by asserting that the federal statute preempts a state law that reduced reimbursement rates.
- AT&T Corp. v. Hulteen (07-543), which determined whether employers violate Title VII by not fully restoring service credit for pregnancy leaves taken before the 1978 passage of the Pregnancy Discrimination Act.
- CSX Transportation v. Georgia Board of Equalization (06-1287), which determined whether, under federal statute prohibiting state tax discrimination against railroads, a federal district court must accept the valuation method chosen by a state for determining the “true market value” of railroad property.
- Tellabs, Inc. v. Makor Issues & Rights, 127 S. Ct. 2499 (2007), which determined to what extent a court must consider competing inferences in determining whether a complaint asserting a claim of securities fraud has alleged facts sufficient to establish a “strong inference” that the defendants acted with scienter, as required under the Private Securities Litigation Reform Act.
- Mohawk Industries v. Williams, 126 S. Ct. 2016 (2006), in which the Court considered the kinds of arrangements involving corporations that qualify as “enterprises” under RICO.
- eBay Inc. v. MercExchange, 126 S. Ct. 1837 (2006), labeled “the most important issue of patent law to be decided by the Supreme Court in decades,” determined whether the standard for issuing a permanent injunction in patent cases differs, from the established traditional standard for equitable relief.
- IBP, Inc. v. Alvarez, 126 S. Ct. 514 (2006), determined, on the one hand, that certain types of employee “waiting time” are not compensable under the Fair Labor Standards Act, and on the other hand, that certain types of “walking time” must be compensated.
- Muehler v. Mena, 125 S. Ct. 1465 (2005), which involved the constitutionality under the Fourth Amendment of the use of handcuffs to restrain occupants of a residence during a two-hour execution of a search warrant.
- Norfolk Southern Railway v. Pty. Kirby, 125 S. Ct. 385 (2004), which involved the question of whether federal law governs the interpretation of certain maritime contracts and, if so, whether contractual liability limits on shippers extend to all downstream carriers, such as railroads.
- Pegram v. Herdrich, 530 U.S. 211 (2000), which involved the legality under federal law of incentive payments to physicians who participate in managed care organizations.
- TXO Production Corp. v. Alliances Resources, Corp., 509 U.S. 443 (1993), which involved the due process standards applied to punitive damage awards.
- Yee v. City of Escondido, 503 U.S. 519 (1992), which involved a challenge under the Takings Clause to the city’s laws regulating mobile homes.
- McNally v. United States, 483 U.S. 350 (1986), in which the Supreme Court struck down the prevailing interpretation of the mail fraud statute that had been used to convict hundreds of public officials, including Governors Mandel and Kerner.
- Advanced Appellate Advocacy, Wolters Kluwer publishers; Carter G. Phillips Co-author, (February 2016).
- Of Courtiers & Kings, University of Virginia Press, Todd C. Peppers and Clare Cushman, Editors; Carter G. Phillips, Contributor (2015).
- “Postmortem on NFIB v. Sebelius: Early Reflections on the Decision That Kept the ACA Alive,” Anup Malani & Michael H. Schill. In The Future of Healthcare Reform in the United States. Chicago: The University of Chicago Press, 2015.
- Keynote Address - What Change Will Come: The Obama Administration and the Future of the Administrative State, University of Miami Law Review, Winter 2011.
- 7th Annual Lewis F. Powell Lecture, Washington & Lee University School of Law, March 2009.
- Federalism and Business Decisions in the October 2005 Term, Touro Law Review, 2007, remarks from PLI’s program.
- A Year at the Supreme Court: Was Affirmative Action Saved By Its Friends? Duke University Press, Neal Devins and Davison M. Douglas, Editors; Carter G. Phillips, Contributor (2004).
- Petitioning The Supreme Court For Certiorari, For The Defense, April 2004.
- The Supreme Court and State Taxation: 2001–2002, Silent Acceptance, The State and Local Tax Lawyer, Vol. 8, 2003.
- Brief Writing Tips, IP Litigator, Vol. 9, No. 5, July/August 2003.
- FELA, Fear of Cancer, and Apportionment, Bender’s Labor & Employment Bulletin, V.3, No. 5, May 2003.
- The Supreme Court and State Taxation: 2000–2001, The Court Revisits Its Long-Standing Rules, The State and Local Tax Lawyer, Vol. 7, 2002.
- Tribute to Rex E. Lee, Solicitor General of the United States 1981–85, The Journal of Appellate Practice and Process, Volume 3/Number 2, Fall 2001, William H. Bowen School of Law, University of Arkansas at Little Rock.
- The U.S. Supreme Court and Oil and Gas Issues, Fifty-Second Annual Institute on Oil and Gas Law and Taxation, Publication 640, Release 52, Copyright 2001, Matthew Bender & Co., Inc.
- The Supreme Court and State Taxation: 1999–2000, The Court Decided To Let Sleeping Dogs Lie, The State and Local Tax Lawyer, Vol. 6, 2001.
Carter is a member of the American Law Institute and the American Academy of Appellate Lawyers, and is a Fellow of the American College of Trial Lawyers. In 2016, Carter joined the board of the Women in Law Empowerment Forum. He is the Chair of the Federal Circuit Advisory Council, a trustee and treasurer of the Supreme Court Historical Society, and he formerly served on the Board of Governors of the Federal Circuit Bar Association. He also serves on the Board of Directors of the National Chamber Litigation Center, the public policy law firm of the U.S. Chamber of Commerce. Carter received the 2014 Distinguished Alumni Award from Northwestern Law School. He received the Honorary Degree, Doctor of Public Service, from The Ohio State University in 2011, and the Ohio State Alumni Professional Achievement Award in 2007. Also in 2007, Carter received the Lewis F. Powell Award for Business Advocacy given by the National Chamber Litigation Center. Before that, Carter received Northwestern University’s Alumni Service Award in 2006, and its Alumni Merit Award in 1998. He also received the Rex Lee Advocacy Award from the J. Reuben Clark Society in 2001. Carter is a member of the Advisory Committee of The Ohio State University College of Arts and Sciences, and a Board member of the OSU Foundation. He serves on the Advisory Committee of the Georgetown University Law Center’s Supreme Court Institute.
Carter has a long history of participation in civic and philanthropic endeavors. An adjunct professor at Northwestern University School of Law, as well as a member (and former chairman) of the Dean’s Advisory Committee, Carter is co-director of the University’s U.S. Supreme Court Clinic. Since 2006, Sidley has sponsored the clinic, which primarily represents indigent criminal defendants. Clinic students draft briefs and identify court of appeals’ decisions as candidates for petitions for a writ of certiorari, all in partnership with the firm’s pro bono program. Carter also regularly participates in events organized by the DC Bar Foundation, including one in 2012 that benefitted the Foundation’s Loan Repayment Assistance Program (LRAP). LRAP helps D.C. poverty lawyers pay their educational debts while earning a public interest salary, essentially increasing the compensation of the attorneys serving Washington, D.C.’s most vulnerable residents.
Carter has also briefed and argued numerous pro bono appeals in state and federal courts of appeals. He and co-counsel recently prevailed in the extensive Fifth Avenue Presbyterian Church v. City of New York litigation on its arguments that the Church’s allowing homeless individuals to take refuge on Church property is part of a sincerely held religious belief protected by the First Amendment of the U.S. Constitution. Among Carter’s pro bono cases are many he argued before the Supreme Court. They include Douglas v. Independent Living Center of Southern California, which determined whether Medicaid providers may maintain a cause of action directly under the Supremacy Clause to enforce protections provided by 42 USC § 1396a(a)(30)(A) by asserting that the federal statute preempts a state law that reduced reimbursement rates.