The Justice Department has intervened to minimize the role of prominent Harvard Law School professor Laurence Tribe in an upcoming Supreme Court case that touches on the volatile subject of climate change.
Tribe, a renowned legal scholar, had hoped to be listed as counsel of record for various groups, including the Consumer Energy Alliance and the American Trucking Associations, which wanted to urge the court not to rule that federal common law can be used to regulate greenhouse gas emissions.
The case, American Electric Power v. Connecticut, will be argued April 19. The Obama administration is also arguing that common law is not the right mechanism to regulate greenhouse gases (Greenwire, Feb. 1).
DOJ requested that Tribe not be listed as counsel of record, meaning his name is not featured on the brief the justices will see.
The brief with Tribe's name on it had already been filed at the Supreme Court last week when DOJ intervened.
Subsequently, a new brief was filed with Tristan Duncan, a partner at Shook, Hardy & Bacon in Kansas City, Mo., listed as counsel of record.
DOJ took action for legal reasons, spokeswoman Tracy Schmaler said.
Until December, Tribe served in the department as a senior counselor focusing on access to justice issues.
Schmaler said Tribe is bound by a law that bans former senior officials from seeking to influence their former employer "in connection with any matter on which such persons seeks official action by any officer or employee of such department."
Substantively, the new brief filed this week is the same as the earlier version. Tribe is still involved as a lawyer for the groups and participated in writing the brief.
But the government's actions have left a bad taste in the mouth of Tribe's clients and co-counsel, according to Duncan, the new counsel of record.
In an interview, she said Tribe "had been led to believe" that he could be listed as counsel of record after discussing the issue with ethics experts in the department.
She noted that the intent is to influence the Supreme Court, not DOJ.
Losing Tribe's name from the front of the brief is a blow to the clients, Duncan said. They hired Tribe because of his "sterling reputation" as the "best constitutional scholar in the country," she added.
Parties with cases before the Supreme Court routinely hire superstar lawyers in part because there is a perception that the court will pay more attention to what they have to say.
Other prominent lawyers well-known to the justices, such as former solicitors general Charles Fried and Paul Clement, have also filed briefs in the case.
"My clients are very upset," Duncan said. DOJ is effectively "interfering with my clients' right to hire the counsel of their choosing."
Tribe himself declined to comment.
Click here to read the original brief with Tribe listed as counsel of record.
Click here to read the revised version.