This small, conservative law firm is landing big wins at the Supreme Court

By John Fritze, CNN

(CNN) — The Supreme Court will hear arguments on Tuesday from the owners of a North Dakota truck stop who are challenging government-approved fees that banks charge every time a customer swipes a debit card to pay for gas or a candy bar.

Almost as significant as the argument itself is who will be representing the convenience store when the justices take their seats: a conservative and relatively new law firm that has been landing some of the biggest cases at the nation’s highest court in recent years.

Created a decade ago by two former law school classmates who gave up their jobs at larger practices, the lawyers at Consovoy McCarthy have argued 11 appeals at the Supreme Court in that time – including a landmark case last year that ended affirmative action in college admissions.

The firm has established itself among Supreme Court advocates at a time when the court has moved substantially to the right with a 6-3 conservative majority following the confirmation of former President Donald Trump’s three nominees: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Five of its current nine partners clerked for conservative Justice Clarence Thomas.

At issue Tuesday is a Federal Reserve rule adopted in 2011 that caps debit card fees for merchants at 21 cents per transaction plus a .05% fee on the value of the purchase. Several merchant groups sued in 2021, claiming the cap was too high and that the government set it arbitrarily in violation of federal administrative law.

Seeking the case’s dismissal, the government cited a six-year statute of limitations it said barred the lawsuit. In response, the plaintiffs added the truck stop, Corner Post, which didn’t open its doors until 2018.

Bryan Weir, in his debut appearance at the Supreme Court, will argue the clock starts on the statute of limitations when a plaintiff – in this case, the truck stop – is affected. The Biden administration will counter that the clock starts when the rule goes into effect.

Two lower federal courts sided with the government. The 8th US Circuit Court of Appeals noted that Corner Post  “waited more than three years to file this lawsuit.”

The firm has developed a reputation for putting newer lawyers before the justices, rather than always relying on veteran attorneys. Co-founder Thomas McCarthy said that “no-ego” approach is a part of the firm’s philosophy.

Weir, McCarthy said, is a “lawyer’s lawyer” and “a natural choice to do the argument.”

Last year, the firm represented two borrowers who challenged President Joe Biden’s $430 billion student loan relief program. Though the court ruled that the borrowers didn’t have standing to sue, the justices nevertheless struck the plan down in a related appeal filed by six conservative states.

The firm also represented Trump in several cases in which he sought to block outside entities from obtaining his tax returns, including Democrats on the House Ways and Means Committee. The high court ultimately rejected those efforts.

But perhaps the most notable recent issue Consovoy McCarthy brought before the Supreme Court consisted of two appeals challenging the consideration of race in admissions at Harvard and the University of North Carolina. Supporters said the policies significantly improved diversity at the nation’s most selective campuses.

Longtime anti-affirmative action advocate Edward Blum hired Consovoy McCarthy to argue that they violated the equal protection clause included in the 14th Amendment.

In June, the Supreme Court’s conservatives voted together against its liberals to embrace that argument.

Blum told CNN that the Consovoy firm has “an oversized influence on our nation’s jurisprudence.”

In coming weeks, the firm’s lawyers are representing Idaho state lawmakers in a major case challenging the Biden administration’s effort to enforce guidance meant to protect abortion access in health-saving situations in states where abortion is banned. The firm also has an appeal pending at the Supreme Court challenging a so-called bias response team at Virginia Tech.

David Lat, a close watcher of the court who runs a blog called “Original Jurisdiction,” described the firm as a “a small law firm with huge influence.” That influence could grow considerably if Trump is elected to a second term in November.

“They have represented Trump in several important matters,” Lat said. “And if he’s elected to a second term, I wouldn’t be surprised to see some of its lawyers join his administration.”

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