Best Adversaries

Lisa Blatt and David Frederick are good friends from their days at UT Law who still cross paths every once in a while. That in itself is not unusual. Every Law School graduate has had the experience of running into fellow alumni in court, in social settings, or even in the grocery store. For Blatt and Frederick, however, the venue is somewhat more august—before the bar of the Supreme Court of the United States. The two have faced off against each other there three times, including twice in the recent 2010–2011 session.

 “It’s definitely odd,” Blatt said. “UT Law doesn’t have a whole lot of people on the Supreme Court bar.”

They make fine representatives of their alma mater. Earlier this year, Blatt argued her thirtieth case before the Court, making her the most experienced female Supreme Court practitioner. Her lifetime record is twenty-nine wins and one loss—a batting average far above the norm. The single miss came in a 2005 case called Bates et al. v. Dow Agrosciences LLC. The lead counsel for the winner of that case? One David Frederick.

“Lisa has tremendous analytical skills,” Frederick said. “I think her strongest point is getting right to the heart of the matter. When she’s confronted with a complex set of facts and legal authorities she has a real talent for getting right to what’s important, and for an appellate advocate that’s especially critical because the judges are looking for some straightforward principle that will govern the case. Lisa has a real knack for identifying what that principle should be.”

Frederick is equally accomplished. When the Obama administration transitioned into power in 2008, the Wall Street Journal reported rumors that he was under consideration to serve as solicitor general. (Both he and Blatt worked in the Solicitor General’s Office—together, naturally—for years in the nineties and the first decade of this century.)  He’s argued thirty-five cases before the Supreme Court. In his spare time, he’s been a codirector of UT Law’s Supreme Court Clinic since 2007.

“You can tell that the Court really likes him,” Blatt said of Frederick. “When I have a case against David, I know that nothing is going to get past him, and everything has to be perfect. You have to be your best at the Supreme Court, and all the more reason because David’s on the other side.”

David Frederick, ‘89, and Lisa Blatt, ‘89, at the Supreme Court of the United States, where they have faced each other as opposing counsel three times.

Perhaps the most remarkable quality that the two lawyers share is the ability to carry on a close friendship even while repeatedly encountering each other in a highly competitive environment that Blatt cheerfully describes as “war.” They still find time to chat on the phone or meet up for the occasional lunch, though the topics of conversation are sometimes circumscribed. “We don’t talk that much about the cases,” Blatt said. “It’s more about some other Supreme Court case, or what’s going on with the kids. We both view it as ‘he’s fighting and I’m fighting.’”

One line of conversation is always off-limits—both lawyers consider it bad form to brag about past victories. “It’s more in the line of, ‘You did a great job,’ or, ‘These things happen,’” Frederick said. “In the Solicitor General’s office, we had an ethic of celebrating the process and the effort. I think that’s continued since we’ve been in private practice. At some point as a lawyer you know that you don’t control the process.”

The two met on the first day of classes in Austin in 1986. Blatt, who grew up in San Angelos and Bryan-College Station, was heading straight into law school after finishing her BA at UT in just three years. Frederick, a few years older, had just returned to his native Texas from a Rhodes Scholarship at Oxford University. “We were in the same first year section, so I saw Lisa every day,” Frederick said. “She was an exceptional student, and we enjoyed talking about what was going on in class.”

“We were definitely social friends,” Blatt said. “David was very erudite back then, very intellectually curious and fascinated by the law. I had no doubt he was destined for greatness.”

Frederick became a student of the legendary UT Law professor Charles Alan Wright, whom Ruth Bader Ginsberg once described as, “a colossus standing at the summit of our profession.” Blatt, meanwhile, found a mentor in then-Dean Mark Yudof, now the President of the University of California system. Both teachers played crucial roles in the careers of their young students. Wright and fellow Professor Michael Sturley guided Frederick towards a clerkship on the Ninth Circuit Court of Appeals and later with Justice Byron White on the Supreme Court.  And based in large part on the assistance of Professor Wright, Blatt clerked for then-Judge Ginsberg on the D.C. Circuit immediately after law school.

The two young legal hotshots reconnected and renewed their friendship in the office of the Solicitor General, where Frederick served from 1996–2001 and Blatt from 1996–2009. Now both are partners in private firms, Blatt with Arnold & Porter and Frederick with Kellogg, Huber, Hansen, Todd, Evans & Figel.

With thirteen years in the SG’s office under her belt, most of Blatt’s Supreme Court appearances have been on behalf of the government. More recently, however, she’s branched out into private work. She’s particularly proud of her recent pro bono win in Henderson v. Shinseki, on behalf of a military veteran who had died during the case’s pendency. The victory expanded access to Veteran’s Administration benefits for thousands of veterans. “It’s great whenever you win a case,” she said. “I liked winning for the government because it helps their programs. But I really liked winning this one because it was pro bono. I think it says a lot when someone does that.”

Frederick, meanwhile, has developed a specialty around issues of preemption, or the conflict between federal and state laws. He recently won an important preemption case, Wyeth v. Levine, on behalf of a musician whose arm had to be amputated because of gangrene that developed after she received an injection of an anti-nausea drug. “It was a hugely important decision for patients and consumer rights,” Frederick said. “To prevail in that case was very significant. On a personal level, Diana Levine, my client, was a very special person, and she’d been through a lot. To win that case for her was very meaningful for me.”

Was it his proudest Supreme Court moment? No, he said, that honor might go to his lone victory over Blatt in the Bates case. According to Frederick, his clients (Texas peanut farmers) won against all odds; if you ask Blatt, she’ll tell you her side never had a chance. They can’t both be right—but they both sure are convincing. 

So far, Blatt and Frederick are even when they’ve met each other face to face. But, she said, in a sentiment he’d likely echo, as much as she hates losing, a part of her can’t help cheering on her favorite adversary. “It’s better when you have someone that good, and all the better when you have someone you like, because you like watching them succeed,” she said. Then, quickly, she clarifies: “But that doesn’t mean that you don’t want to win.”—Mike Agresta

(Photo by Andrea Hackman, courtesy of the Supreme Court of the United States.)