“Ask the Author”: Richard Lazarus, Part II

This edition of “Ask the Author” features a conversation with Richard Lazarus about his new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar,” see here. Lazarus’s piece, which is forthcoming in the Georgetown Law Journal, is a very informative analysis of the role of the Supreme Court bar in shaping the work of the Court. Some of our readers may already be familiar with Lazarus as he is the co-director of the Supreme Court Institute at Georgetown Law Center, see here, which also runs a moot court program for counsel appearing before the Supreme Court. For Part I of the interview, click here.

Do you think that the centralization of the Supreme Court bar has contributed to the decline in the plenary docket? In particular, might it explain the decline in the paid portion of the certiorari docket? If so, why?

Great question. Like others, I am intrigued by the decline in the paid portion of the docket. It seems so counterintuitive in light of the increase in the lower court docket and the rise in the Bar as well. In my article, I discuss both how the Bar has managed to increase despite the shrinking of the plenary docket and how it might have even contributed to the decrease in the number of paid petitions being filed. I have a high degree of confidence in the points I make with regard to the former, especially how a shrinking docket has promoted the expert Bar’s dominance, but not in my latter claim, which is far more speculative and tenuous. This is probably the part of my article in which I am least confident.

In particular, my article suggests that the rise of the Bar may have prompted a decline in the paid docket in two ways: (1) by increasing the number of times when members of the expert Bar counsel clients against filing a petition by providing them with a candid and honest assessment that the case has absolutely no chance of being reviewed; and (2) by raising the price of getting a top notch petition filed – our experts don’t come cheap – and thereby discouraging those who can’t afford that price from purchasing what the market price now suggests is truly a lesser (cheaper) product. I am confident that both of those possibilities sometimes happen and as a result, some petitions are not filed that might otherwise be filed.

Where I am nonetheless plainly on thin ice is by suggesting that this happens enough to overcome pressures from other sources that promote the filing of more paid petitions. I am, however, a strong proponent of legal scholarship floating provocative ideas, even at the risk of their being shot down. Sometimes, they aren’t and further support is offered by others. But even when that does not happen, the resulting discussion is usually valuable and grist for the academic mill.

You also discuss the importance of amicus briefs at the certiorari and merits stages. Are experienced Supreme Court attorneys more effective at soliciting quality amicus briefs, including from the Solicitor General’s office? Does the number or quality of amicus briefs have an impact on the Court’s decisions, either at the certiorari or merits stage (or both)? If so, why are amicus briefs so important?

I believe that amicus briefs are very important at the cert stage and are much less so on the merits, with some obvious counterexamples. As already described, the Court’s resources are stretched thin at the jurisdictional stage, so the Justices and clerks are necessarily more dependent on the information supplied by the briefs filed, including amicus briefs. The number and identity of the amici, moreover, wholly apart from the context can be weighty evidence in support of the petitioner’s claim that a legal issue is important. One prominent advocate has long contended that he wants the law clerk writing the pool memo on his petition to be immediately impressed by the fact that there is not just a petition, an opp, and a reply in the rubberband-bound package delivered to the clerk’s desk, but a much thicker bound package supplemented by a host of amicus briefs. The visual message itself makes the clerk start from a different premise about the case. I think he is right.

The expert advocates are also better than others in knowing how best to prompt an invite for the views of the SG at the cert stage. The potential interest of the legal issues to the US is not something to which lower court counsel will likely have given much thought, because it would not have been relevant below. Supreme Court counsel, by contrast, focuses on that from the get-go, aware that it provides yet another hook for plenary reviews. Sometimes this is the best way to get the petition out of the big pile and into the smaller pile that receives closer examination. One can then work on the SG, with whom the experts are closely tied based on past cases and attorneys going back and forth between law firm and OSG. And, even absent a favorable recommendation from the SG, the SG invite, standing alone, has increased the chances of a cert grant above background odds.

I am far less persuaded, however, that amicus briefs make such a big difference on the merits for the corresponding reason that now the clerks and Justices can and do devote substantial time to each case subject to plenary review. But even here, outstanding amicus briefs can affect the case and, as discussed in the article, that is not an infrequent occurrence. They are more likely to make such a difference in two circumstances: (1) when the side they are supporting is not represented by able counsel; or (2) when the contrasting positions advanced by the opposing parties fail to develop an alternative analytical path that the amicus effectively proffers to the Court. And, of course, institutional amicus with outstanding counsel, such as those submitted by the SG’s Office, always carry weight.

The only other point I would like to make here is that I think a valuable distinction should be made between amicus briefs on the merits that influence whether a case is reversed or affirmed and those that affect how an opinion is written. In my own experience, the excellent amicus brief is more likely to affect how the Court opinion is written, by suggesting points to be made or pitfalls to be avoided, rather than in prompting the Court to affirm or reverse.

You conclude that, for some non-business interests, the centralization of the Supreme Court bar may mean a disparity in the quality of advocacy. In other words, the business interests will be able to hire the most experienced and expensive advocates while others will be unable to afford high-quality assistance. Isn’t it possible, however, that the decline in the plenary docket has increased the demand for even non-paying Supreme Court work? Put another way, anecdotal evidence suggests that local counsel are bombarded by offers for assistance from experienced Supreme Court advocates, so why should we be concerned if experienced advocates are willing to take on plenary cases on a pro bono basis?

Yes and no (of course). Without a doubt, the combination of the rise in the Bar and the decline in the plenary docket means that there are many more expert SCT advocates out there willing to do pro bono Supreme Court cases, either as loss leaders to promote their business or simply because they love doing the cases. And, yes, counsel who have had cases granted are often bombarded with offers to take their case over and, if it is a classic pro bono matter, those offering will do the case for free or costs. And, for that reason, I agree that the rise in the Bar is generally a very good thing. The Court benefits from better advocacy.

Why we should nonetheless be concerned is three fold. First, those pro bono offers do not come pouring in equally in all types of cases. There is a distinct and increasing category of important cases in which our entirely expert SCT Bar is almost always conflicted out. These are business liability cases, involving tort liability, environmental pollution control law, employment discrimination, antitrust liability, ERISA liability, etc. In these areas of law, the Bar is virtually uniformly aligned on one side of the issue and unwilling or unable to represent interests, whether as parties or amici, on the other side. This, too, I see all the time in cases before the Court, and have heard from many frustrated clients and counsel seeking expert counsel.

Second, especially as the States and State SG Offices have improved their advocacy, the advocacy gap has increased in the criminal defense area, notwithstanding the rise in the private sector Bar and the Bar’s willingness to take on pro bono criminal cases on behalf of criminal defendants. To be sure, several law firms have taken on very active roles in trying to close the gap. Sidley & Austin has been doing wonderful work for years, and O’Melveny & Myers is now doing so with the National Association of Criminal Defense Lawyers. But the criminal defense bar remains for whatever reason very reluctant to allow expert Supreme Court Bar to take leadership roles in their cases, with some notable exceptions (e.g., Jeff Fisher). In my article, I discuss possible steps to mitigate this discrepancy, including greater willingness on the part of the Court to hear amicus arguments on behalf of institutional representatives of criminal defendants, such as an association of federal or public defenders, represented by expert Supreme Court advocates. I am also anticipating that the affiliation of law firm practices with the newly-emerged law school SCT Clinics may make some criminal defense counsel more willing to sign on for such help. The cover of a law school clinic makes it seem less like a law firm is taking over their case and it seems more prestigious rather than professionally threatening to be affiliated with an elite law school.

Finally, most offers for pro bono assistance occur after cert is granted, and not before. That is too late to get certworthy cases of interest to nonmonied interests granted. No less significantly, it is too late to persuade the Court to deny cert in a case that expert counsel has successfully pitched to the Court. A more effective opposition would have revealed to the Court the extent to which petitioner’s counsel is raising issues and arguments not truly presented below and relying on circuit conflicts that really have nothing to do with the case and, once cert is granted, will accordingly quickly be ignored by petitioner. Even worse, after cert is granted, it is too late for respondent to point out that the issues petitioner raises are not presented by the case or that petitioner relies on material misstatements of fact not supported by the record. Under SCT Rule 15.2, failure to raise those matters in the opposition is grounds for their waiver once review is granted. And, this, too, happens frequently before the Court. Gone are the days when the Court affirmed almost as much as it reversed. Now, the Court reverses the vast majority of the time.