Legal scholarship highlight: A clinic’s place in the Supreme Court bar

As most readers of this blog are well aware, the past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. (I co-direct one at Stanford.) Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task.

It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by inexperienced (and often under-resourced) counsel instead of Supreme Court specialists are generally at a distinct disadvantage.  To do so, the Article surveys 356 merits cases from October Term 2004 through October Term 2010 in which clinics might plausibly have represented an individual against a governmental or corporate entity.  In about 44% of those cases, Supreme Court specialists (as that term is defined by Richard Lazarus in his 2008 article about the modern Supreme Court bar) represented the individuals; nonspecialists represented the individuals in the remainder of the cases.  Litigants represented by specialists fared much better. They won 67% of their cases as petitioners and 32% as respondents, while individual litigants represented by nonspecialists won only 48% of their cases as petitioners and 14.5% as respondents.  And the subset of cases handled by clinics is consistent with this differential: clinics’ clients prevailed 70% of the time as petitioners and 35% as respondents.

None of these statistics is meant to suggest that Supreme Court specialists, much less clinics, ought to handle every Supreme Court case.  There are undoubtedly many highly skilled lawyers across the country who can, and do, provide excellent representation in such cases. But my empirical analysis does indicate that lawyering matters a great deal in the Supreme Court – notwithstanding the perception of many that “the law is the law” and that the Court’s view of, say, the Fourth Amendment or the Fair Labor Standards Act will not be affected by advocacy.  Indeed, according to the numbers in this Article, the outcome in perhaps as many as one in five cases turns on the identities of the lawyers.  That is no small matter in a system in which the Court’s decisions determine not only the rights or obligations of the parties before it but also dictate the course of the law and the resolution of untold disputes for years to come.  Moreover, although I do not attempt to statistically analyze differences in outcomes at the cert. stage, my instinct is that they are likely to be even more influenced by lawyering than merits outcomes.

Accordingly, many litigants who would otherwise be represented by trial or local counsel may well stand to benefit from the expertise and resources that a Supreme Court clinic can offer.  First and foremost, clinics can level the representational playing field to the benefit of traditionally underserved litigants. Clinics can also aid the Justices and help bring balance to certain areas of the law that otherwise might tend to be skewed by inequalities in lawyering. Both of these things serve the public interest.

At the same time, the fact that Supreme Court cases generate reverberations far beyond the specific parties involved – indeed, sometimes beyond the courts themselves – means that operating a Supreme Court clinic presents special challenges and responsibilities.  In particular, insofar as clinics have control over which cases they bring to the Court and can cause the Court to hear cases that it might not otherwise have heard, the clinics’ work can implicate sometimes latent tensions between client-centered representation and cause-based advocacy. The Article is forthright that when it comes to selecting (and, to lesser extent, handling) cases in the Court, there are not always easy ways to navigate these competing approaches to public interest lawyering. But it explores the ethical, practical, and normative issues that operating a Supreme Court pro bono practice raises.