Carter G. Phillips (1973, BA in Political Science) is a partner in the Washington, DC office of Sidley Austin LLP. He served as a law clerk to Judge Robert Sprecher on the U.S. Court of Appeals for the Seventh Circuit and Chief Justice Warren E. Burger of the Supreme Court of the United States. Phillips served as assistant to the Solicitor General in the US Department of Justice for three years.
Since joining Sidley, Carter has argued more cases -79- before the Supreme Court of the United States as a private litigator than any other living lawyer. He has a total of 88 oral arguments before the Supreme Court and more than 145 arguments before the United States Courts of Appeals.
Phillip is a member of the Ohio State University Arts and Sciences Advisory Committee and a Director of the University's Foundation Board.
1. What is your most memorable case you argued in front of the United States Supreme Court?
Federal Communications Commission v. Fox Television Stations was a very memorable case that garnered significant publicity. Fox Television retained Sidley Austin, LLP to represent them and Phillips lead their appellate team. The case bounced between the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court two times before the High Court ruled on Fifth Amendment grounds. The two Court of Appeals cases were televised on CSPAN and the Supreme Court case brought national attention to the rights of broadcasters.
The FCC charged that Fox broadcasted fleeting expletives (non-scripted verbal profanity or obscenity) used by Cher and Nicole Ritchie during the Billboard Music Awards. ABC was also involved when the FCC charged it with a violation of the Commission's indecency regulatory regime.
Fox, ABC and similar broadcasters were hoping for the Court to issue a broad holding on First Amendment grounds. They wanted to be given the same constitutional rights as their cable broadcast counterparts.
Phillips and Sidley Austin won the case for their client 8-0 (with Justice Sotomayer recusing herself), not on First Amendment grounds but on Fifth Amendment Due Process grounds. The Court held that the FCC did not give Fox or ABC fair notice of what would be deemed actionably indecent. Specifically, they ruled that the FCC changed its policy after the aforementioned incidences occurred and the broadcasters did not have sufficient notice of the applicable FCC policy.
“The good news for the networks is that the hundreds, if not thousands, of complaints that had piled up at the Commission during the pendency of the litigation were all dismissed while the FCC now attempts to formulate a policy that will satisfy Due Process,” said Phillips.
Phillips added, “Of course, any new policy will still face a challenge under the First Amendment because it will still be regulating content, which the networks believe violates their rights.”
The implications of this may be a re-energized debate on First Amendment grounds, which Phillips contends are exciting cases for appellate attorneys to argue.
2. Looking back to your early, formidable years as a rising legal star, will you share with us your experience clerking for Chief Justice Warren Burger?
Phillips refers to those days from 1978-79 as “drinking from a fire hose.” He said in the years he clerked it would be common for SCOTUS to hear a prolific 155 cases a year. (This is in contrast to today’s High Court which hears 60 - 70 cases annually.) What’s more, there were no page or word limits for Supreme Court briefs when Phillips clerked for Chief Justice Burger. Phillips recalls that the briefs for the Columbus and Dayton School Busing cases were 400 and 500 pages long. Similarly, during his tenure, there was an anti-trust brief over 500 pages long!
With so many cases to research and briefs to prepare, the clerks were by anyone’s measure overwhelmed and working around the clock. Phillips estimates he probably wrote a thousand memoranda to Chief Justice Burger during his clerkship. He remembers how the Chief Justice instructed his clerks to start each memorandum with a firm “I recommend . . .” The Chief Justice wanted to know upfront where his clerks stood in a clear, succinct fashion. This trained his clerks to be well-prepared and decisive in their recommendations.
Phillips laments that he does not possess any of these memoranda to the Chief Justice. At least back then, clerks were instructed to burn all memoranda, which he dutifully did. He wishes he had a few as keepsakes from his time clerking.
On a personal note, Phillips fondly remembers how the Chief Justice loved to share stories about meeting Dwight Eisenhower. Phillips recalls how enthusiastically the Chief spoke about his exciting encounter. As a young clerk working in the midst of a giant like Chief Justice Burger, Phillips found that surprising – THE Chief Justice of The United States Supreme Court was genuinely excited to meet someone else? The general public may be dumbfounded to realize that the Chief Justice really exhibits human qualities like the rest of us!
3. You have dedicated significant time and energy giving back to the legal profession and larger community. What are some of your most proud pro bono cases and/or organizations that have impacted you most?
One of Phillips’ greatest impacts on the law profession has been the influence of his amicus curiae briefs (Latin for “friend of the court”). The 2003 landmark affirmative action case Grutter v. Bollinger featured a well-known amicus brief filed by his law firm Sidley Austin. In that brief, the firm argued on behalf of retired military officers that the United States military academies rely upon affirmative action in their admissions in order to ensure a racially integrated officer corps, which is critical to national security. They asserted the admissions process at Michigan’s law school was not materially different and that both systems should be constitutional.
Justice John Paul Stevens during oral argument referred to this brief as the “Carter Phillips brief” and mentioned arguments in the brief repeatedly. In her opinion for the Court, Justice Sandra Day O’Connor cited the brief.
Additionally, Phillips is very proud of having served as the Co-Director of Northwestern University’s Supreme Court Clinic for the last seventeen years. The clinic primarily represents indigent criminal defendants and is sponsored by Sidley’s pro bono program. Clinic students draft briefs and identify court of appeals’ decisions as candidates for petitions for a writ of certiorari.
4. What advice do you have for current political science students at Ohio State interested in a career in law or public service?
Phillips affirms his Ohio State Bachelor of Arts degree in Political Science in 1973 greatly prepared him for his future endeavors. After Columbus, he went on to Northwestern University School of Law, followed by earning some of the most coveted legal positions as a clerk for U.S. Appeals Justice Robert Sprecher and U.S. Supreme Court Chief Justice Warren Burger as well as Assistant to the U.S. Solicitor General. He said his state college education is a testament that you can compete at the highest level. He would encourage every Ohio State student to aim high and be confident that their Ohio State education has prepared them for success.