Building a Top-Flight Supreme Court Practice with Kannon Shanmugam

Leave it to Kannon Shanmugam to make even Paul, Weiss more appealing.

That’s what happened five years ago when he joined the New York-based powerhouse in January 2019: Shanmugam transformed the firm’s relationship to appellate work and the U.S. Supreme Court. As Chair of the Supreme Court and Appellate Litigation Practice, he took on a challenge more substantial than it might have appeared: to build a leading Supreme Court practice at a firm not anchored in Washington, D.C.

He certainly brought the K Street cred. After clerking for 4^th U.S. Circuit Court of Appeals Judge J. Michael Luttig and U.S. Supreme Court Justice Antonin Scalia, he joined Kirkland & Ellis in November 2000. There, he worked with former U.S. Solicitor General Ken Starr, among a host of others. His second day of work was the day of the 2000 presidential election, which eventually led to the Supreme Court’s decision in Bush v. Gore.

In 2004, he moved to the Solicitor General’s office under Ted Olson, and he also served under Solicitors General Paul Clement and Greg Garre. His impeccable credentials in 2008 led him to the quintessential D.C. firm, Williams & Connolly, as the firm’s only lateral partner in 32 years. There, he ascended with light speed through the closed-door ranks of Supreme Court advocates. He argued 19 cases to the Supreme Court while building an enviable appellate practice that regularly appeared in every circuit nationwide.

It’s always notable when a new star emerges in the Supreme Court bar. And Shanmugam stood out for several reasons. Let’s call it his outside shot. For while he graduated from Harvard Law School and holds a degree from Oxford, he’s Kansas through and through. The Lawrence native embraces his home state – Go Chiefs! – and remains a regular presence there. His parents emigrated from India in the late 1960s, and his father taught at the University of Kansas for more than 30 years.

His insider play is equally formidable – and has been on full display as he’s built the practice at Paul, Weiss. Extremely connected and outgoing, Shanmugam set to work making sure his new partners knew of the opportunities to strengthen their status as a litigation and deal heavyweight with a robust appellate practice.

“I'm not going to lie, it’s a lot of work to build a practice almost from scratch,” says Shanmugam, who also serves as Chair of the D.C. office. “In some ways, it felt as if the practice was a startup.”

Shanmugam’s inaugural case at Paul, Weiss was the complex and closely watched Seila Law v. Consumer Financial Protection Bureau, which challenged the constitutionality of the agency’s leadership structure. Argued March 3, 2020, it would end up being one of the last oral arguments that Justice Ruth Bader Ginsburg heard in person before she died. The 5-4 decision by Chief Justice John Roberts on June 29, 2020, had a thunderous impact on separation of powers jurisprudence, which rumbles along to this day.

Appellate courts, including the Supreme Court, tend to view the world with a different perspective than district courts. They think more about the big picture and broader consequences of their decisions.

Since then, Shanmugam has successfully overturned judgments in cases involving ten and even eleven figures while bringing a New York inflection to Supreme Court advocacy. He’s now argued 36 cases before the Supreme Court and more than 100 appeals in courts throughout the country.

“It’s very exciting to look across our litigation department and see all of the things that we're doing right now in so many different areas of the law for clients across so many different industries,” he says.

Lawdragon: Congratulations on finding a great fit at Paul, Weiss.

Kannon Shanmugam: It's been a lot of fun. The time has just flown by. Five years ago when I came over here, I had an empty office, no team, and no guarantee that any clients would follow me to Paul, Weiss, or that I would attract any new clients. Now, five years later, I firmly believe that we've built one of the best Supreme Court and appellate practices in the country. There were many people who had their doubts that it could be done at a New York-based firm that historically had not had a dedicated Supreme Court and appellate practice. It's been very satisfying to be able to do it.

The firm has such a broad and deep platform in terms of its clients and its relationships with the business community and beyond. The work flows from all directions at Paul, Weiss. I had always thought that this firm could sustain a market-leading Supreme Court and appellate practice, but I don't think that was obvious to everyone at the time.

LD: Was there a moment early on where you felt success was in your sights?

KS: Paul, Weiss felt like home almost immediately. By my first weekly partners’ lunch, I already felt as if I was part of the Paul, Weiss family. The turning point was when I had my initial team in place. Five lawyers joined me from my former firm and almost all of my clients came over. Then we started to get cases that were generated here at Paul, Weiss, and that’s when it felt as if everything was coming together. I'm not going to lie, it’s a lot of work to build a practice almost from scratch. It requires spending a lot of time getting to know the firm, the firm's clients, and your new partners. In some ways, it felt as if the practice was a startup, though one that was operating within one of the nation’s most established firms.

LD: What surprised you as you began to build?

KS: It was gratifying how quickly our litigation department adapted to having an appellate practice. My partners were my best agents, and they continue to be when it comes to marketing the practice to clients. One of the benefits of having a market-leading Supreme Court and appellate practice is that it works in both directions. If the firm gets hired to handle a big appeal, it is often the case that if the appeal goes well, the client will hire the firm for other litigation or even transactional matters. We've already had a number of clients for whom that has proven to be true.

LD: Can you tell us about some of the work you’ve done at Paul, Weiss?

KS: The biggest Supreme Court case I’ve done here may have been the first, which was Seila Law v. CFPB. The Supreme Court ultimately held that the structure of the Consumer Financial Protection Bureau was unconstitutional and essentially modified its structure so the president would have the ability to remove the CFPB's director. This was a very significant constitutional decision from the Court. It was an issue that had been percolating in the lower courts for many years, and I'd been keeping an eye on it. We were retained to represent the relatively small law firm that was challenging the CFPB structure because I had worked with the lawyer who handled the case in the lower courts, Tony Bisconti, on another matter many years earlier.

Sometimes the cases that I'm proudest of are not the highest-profile cases, but the ones that are the most legally interesting or challenging.

It was an extraordinary case; the constitutional issues were interesting and complex. It was one of the last cases to be argued before the pandemic. As it turned out, the oral argument was one of Justice Ginsburg's last oral arguments in person before she passed away, so it was special for that reason as well. I will surely remember it as one of the most consequential cases that I’ve handled in my career.

LD: What has been the practical impact of that case?

KS: The most immediate impact was that before, the president had a very limited ability to remove the director of the CFPB. Now the president can do so for any reason. So when President Biden was elected, he removed President Trump’s director of the CFPB and nominated someone who he thought would have priorities more closely aligned with his. Going forward, that will be required for the CFPB, and perhaps for other agencies as well.

LD: Another huge victory was Goldman Sachs Group v. Arkansas Teacher Retirement System, in which you overturned the certification of a $13B class action. What was notable about that other than its monstrous size?

KS: That was a big securities class action brought against Goldman Sachs in the wake of the financial crisis. The plaintiffs were seeking upwards of $13B in damages, and it was a case that presented significant questions concerning the standard for certifying securities class actions. The case had been handled for basically a decade by an outstanding team at Sullivan & Cromwell, and when Goldman decided to appeal a decision by the 2nd Circuit to certify the class, the client brought us in to join the team and take the lead.

We were successful in getting the Supreme Court to hear the case and then to vacate the 2nd Circuit’s decision. The Court then sent the case back to the 2nd Circuit, which sent it back to the district court. The district court recertified the class and we went back up to the 2nd Circuit – to the same panel that had previously ruled against us. We took the lead once again and argued that the district court had erred in recertifying the class. This time around, the 2nd Circuit unanimously reversed the district court and ordered the decertification of the class. That effectively brought the case to an end. It was an enormously important case for the client; beyond the financial stakes, the client felt very strongly that it had not made any misstatements. So it was a gratifying victory and a great opportunity to work with some fabulous lawyers, both at Sullivan & Cromwell and here at Paul, Weiss.

LD: Your Supreme Court experience must have been a huge asset.

KS: It’s definitely true that appellate courts, including the Supreme Court, tend to view the world with a different perspective than district courts. They tend to think more about the big picture and about the broader consequences of their decisions. In a case like the Goldman case, it's important to come up with a legal standard that seems workable and easy for courts to apply, that is going to reach fair results, and that is going to weed out cases that shouldn't go forward.

LD: Since your earliest days as an appellate practitioner, you have had a tremendous commitment to criminal law and the rights of those accused of crimes. In late December, you won a huge victory from the 9th Circuit on behalf of former Nebraska Congressman Jeff Fortenberry. Can you talk a bit about the importance of criminal law to you and the Fortenberry case in particular?

KS: Criminal cases have always been an important part of my practice. Our most recent victory in this area was on behalf of Jeff Fortenberry, a member of Congress who had to resign his seat as a result of being convicted of making false statements to the government relating to certain campaign contributions. He was convicted in the Northern District of California, notwithstanding the fact that he was a member of Congress from Nebraska.

I firmly believe that Paul, Weiss has the best litigation department in the country, so my priority is simply not to mess that up!

The government's theory as to why they could try him in California was that the effects of his allegedly false statements were felt in California, even though he made the statements elsewhere. A unanimous panel in the 9th Circuit agreed with us that it was not a valid theory of venue, and that the only place where the government could bring the prosecution was where the statements were actually made.

This was a very satisfying victory for us. Our client had paid a very heavy price by losing his seat, and we were pleased that the 9th Circuit agreed his conviction was improper.

LD: What do you like most about being an appellate lawyer at this level?

KS: Every case is different. Some cases are more complicated than others, but essentially, what you're trying to figure out is how to solve a puzzle – to come up with legal arguments that are going to lead to a favorable outcome for your client. I feel the weight of that, particularly in criminal cases, because it's someone’s freedom and livelihood that’s typically at issue. By definition, the stakes could not be higher.

LD: Are there any other cases you consider especially significant in your career?

KS: Sometimes the cases that I'm proudest of are not the highest-profile cases, but the ones that are the most legally interesting or challenging. I had a fascinating case a few years ago called Borden v. United States, which involved a federal statute governing mandatory minimum sentences for repeat offenders. The Supreme Court, by a 5-4 vote with a somewhat unusual lineup of justices, said that we were correct that crimes committed recklessly did not qualify as predicate offenses that could trigger that statute. That case had an impact not just on our client, but on many others.

LD: What trends are you seeing overall in the appellate courts these days?

KS: It's clearly a challenging time for our country, and it feels like our institutions are under enormous pressure. So far, I think our courts have held up pretty well, but the pressures on the courts are also increasing – in part because of the seemingly ever-growing politicization of the nomination and confirmation process, and in part because it seems as if all of our biggest disputes end up being resolved in litigation rather than through the political process. Even our elections are increasingly being resolved in the courtroom rather than at the ballot box.

These are unfortunate trends for our country. I have very real concerns about our ability to continue to attract the best and brightest to become judges. As the process for confirming judges becomes ever more rancorous, it deters people from wanting to put themselves and their families through that process.

LD: How do you look forward to shaping Paul, Weiss' litigation corps going forward?

KS: I was privileged to be selected to serve as co-chair of our litigation department, and I'm honored to share that responsibility with my partners Jessica Carey, Karen Dunn and Ted Wells. I firmly believe that Paul, Weiss has the best litigation department in the country, so my priority is simply not to mess that up! We have an extraordinary litigation department in the breadth of its talent at all levels – partners, counsel, and associates. It’s very exciting to look across our litigation department and see all of the things that we're doing right now in so many different areas of the law for clients across so many different industries.

Particularly as litigation has picked up in the wake of the pandemic, Paul, Weiss lawyers are in court every day in courts all over the country. As leaders of the litigation department, our goal is to make sure that we capitalize on our historic strengths and continue to attract the top talent. Ultimately, the success of any law firm depends on its ability to attract the very best talent at every level. I think we're doing that now, and we need to keep doing that in the future.

LD: Awesome. So, Taylor Swift – net plus or net minus for the Chiefs?!

KS: I think it's a net plus. It's pretty amazing to think of probably the most famous person in the world as a fan of my previously unfashionable team, the Kansas City Chiefs. It's been fun seeing her at games this year. I'm hoping that we’ll make it to the Super Bowl this year, and that she’ll be there with us!