SCOTUS for law students (sponsored by Bloomberg Law): The Supreme Court bar
on Nov 13, 2012 at 1:32 pm
It has been twenty-five years since then-Chief Justice William Rehnquist observed that there was no real bar of specialists who regularly appeared before the Supreme Court.
How things have changed! Today, there is most definitely a group of Supreme Court “regulars,” lawyers who make a specialty of taking cases to the Supreme Court.
This group participates in a significant number of argued cases each Term, either handling the briefs and arguments for a party to the case or filing amicus – that is, friend-of-the-court – briefs. And many of the highest-profile cases of the Term feature the involvement of Supreme Court specialists.
Let us pause for a second and define our terms. The phrase “Supreme Court bar” has at least two distinct meanings. First, any lawyer may become a member of the Bar of the Supreme Court, which brings with it the right to practice in front of the Justices, as long as she has been admitted to practice in the highest court of her state for three years, pays the $200 admission fee, and is not the subject of disciplinary action by her state bar. There are thousands of lawyers who have paid for this privilege, and the overwhelming majority of them will never handle a case in the Supreme Court.
In the context of this column, the phrase “Supreme Court bar” refers to the lawyers who are repeat players, regularly arguing cases before the Justices and making a professional specialty of handling Supreme Court appeals. This group of repeat players is rather small: it is made up of perhaps two dozen lawyers at private law firms, a small number of lawyers who work for public-interest groups like the ACLU or the Institute for Justice, and an even smaller number of law professors, many of whom handle cases through Supreme Court clinics at law schools. (Note: Thomas Goldstein of Goldstein & Russell, the founder of SCOTUSblog, falls into this group, as does his law partner, Kevin Russell.) It is this phenomenon that, as Chief Justice Rehnquist noted, did not exist in 1987 but now plays a significant role at the Court today.
The rise of the Supreme Court bar should be of interest to students exploring the workings of the Supreme Court as well as to those who are interested in appellate advocacy and important developments in the legal profession.
While there is no precise way to measure the importance or influence of this group of lawyers, consider some anecdotal measures. In the Term that began on October 1, the Justices have heard oral arguments in twenty-two cases to date. (They may hear another forty-five or fifty cases between November 26, when they are next scheduled to hear arguments, and April 24, 2013, when arguments for this Term are scheduled to conclude.) In the twenty-two cases argued to date, thirteen included at least one lawyer who might be considered a Supreme Court specialist or regular, while at least four others included lawyers who have argued at the Court before, even if they may not be considered “regulars.” And a few cases even included Supreme Court specialists on both sides.
When Rehnquist made his comment about the absence of a Supreme Court bar, it was unusual for the same lawyer to argue more than once in a Court Term: arguments at the Court were primarily handled by the attorney who had argued the case in the lower courts. Given how few cert. petitions the Court grants each year, statistically it would be relatively rare for a lawyer to take more than one case from the lower courts up to the Supreme Court. But already this Term, former Solicitor General Greg Garre, now at Latham & Watkins, has argued three cases; Tom Goldstein has handled two, as has Jeffrey Fisher, the co-director of the Stanford Law School Supreme Court Clinic. Garre will argue his fourth case of the Term later this month, and Fisher will add his third, while former Solicitor General Seth Waxman, now at WilmerHale, will add his second.
Last Term, the list of top players differed slightly. Former Solicitor General Paul Clement, now with Bancroft, argued seven cases. Carter Phillips of Sidley & Austin had five, Garre had four, and Patricia Millett of Akin Gump had three.
There is some historical precedent for the existence of Supreme Court specialists. The best-known Supreme Court advocate in history may be Daniel Webster, the early nineteenth-century orator and U.S. Senator from Massachusetts, although his substantial number of cases – 223 – is eclipsed by a lesser-known contemporary, Walter Jones, who argued more than 300.
The importance and influence of the Supreme Court bar today is not simply about how many arguments a lawyer amasses. Supreme Court specialists get hired to file petitions for certiorari, to prepare amicus briefs, and to help other lawyers with their briefs or oral argument preparations. These lawyers offer expertise in persuading the Justices that a genuine and important conflict exists among the federal appeals courts over a point of law, a critical factor in getting a case heard by the Court. They also have the know-how to do the opposite – to try to downplay the significance of a conflict in the circuits, or to argue that the apparent conflict is not a real one – for the party opposing Supreme Court review. When it comes to writing a brief or arguing a case, their experience may enable them to think about targeting particular arguments at individual Justices and to answer questions in ways that enhance their case.
Often, these specialists are hired only when the case is being appealed to the Supreme Court, having been handled by other lawyers in the earlier stages of litigation. On occasion, a client will shop for a Supreme Court specialist, hearing pitches from several before making a selection. This competition is known in some circles as a “beauty contest,” since the lawyers must literally sell their expertise in a competitive process.
When Rehnquist discussed the absence of a “Supreme Court bar,” he presumably intended to suggest that the return of a Supreme Court bar might be a good thing – that is, that the Court would benefit from the high caliber of advocacy that would come with the expertise. The rise of the Supreme Court bar is not without its critics, however.
Richard Lazarus, now a Harvard Law School professor, discussed the rise of the Supreme Court bar in a 2008 article for the Georgetown Law Journal and a 2010 post for the online version of the Yale Law Journal. He argued that the growing influence of specialists had the potential to reshape the Supreme Court’s docket so that it reflects the interests of clients who could afford to hire the expert lawyers, rather than reflecting the legal issues that may be most important to the country. In particular, he expressed concern that criminal defendants and plaintiffs in civil rights and employment cases could find themselves on the wrong side of an unfair contest at the Court, with Supreme Court specialists at large firms unwilling or unable (because of conflicts of interest with their corporate clients) to offer pro bono assistance. But many in the bar scoff at this criticism, suggesting that the lawyer-specialists take on many pro bono cases in the Supreme Court and that the advent in the last decade of Supreme Court clinics at a handful of law schools has also increased access to appellate expertise for a range of clients who cannot afford to pay high fees. They also note that the expansion of the bar makes it more likely that clients on all sides will have access to a Supreme Court specialist, not just major corporations.
Are there other risks from the influence of the Supreme Court bar? Some argue that the law clerks to the Justices who read and summarize the petitions for certiorari may be more impressionable when they see a case filed by a prominent Supreme Court specialist. (For similar reasons, Supreme Court specialists sometimes decline to include their names on briefs opposing certiorari, out of concern that their participation may make the case a more attractive candidate for certiorari.) But it is difficult to document this potential problem, and it is even harder to distinguish whether the influence, if it exists, comes from the merit and quality of the work – a good thing — or from the reputation, which is less desirable.
Still another issue that arises with Supreme Court specialists is that their primary focus may be getting their cases in front of the Justices, rather than shaping or controlling the evolution of particular areas of the law. Lawyers who practice in particular fields sometimes pursue strategic decisions about when to take a case to the Court and when, on the other hand, to refrain or to wait for another case with better facts. These lawyers hope to help guide the development of the law in their area of expertise, but Supreme Court specialists may have a different agenda.
There may also be concern about a cooperative incestuousness in the Supreme Court bar. A lawyer on one side of a case may want to help his cause by lining up some supporting amicus briefs that augment or underscore particular argument points. Those briefs may be orchestrated by one Supreme Court specialist reaching out to others to see if they can line up clients to authorize such briefs. But is there anything wrong with this practice? If the Justices receive fuller information about the dimensions and ramifications of a case because of the participation of other Supreme Court specialists, is that a bad thing?
When the Justices take the bench for oral argument these days, there can be no question that many of the lawyers standing before them are familiar faces, well-known to the Court for their repeat appearances. That is a dramatically different picture than the one Chief Justice Rehnquist painted twenty-five years ago, and one that deserves more study to understand the impact on the Court and the law.
