Analysis: Former Solicitors General and the Supreme Court bar

Until recently, Matt Sundquist was a Fulbright Scholar in Argentina.  He is  a graduate of Harvard College and was an intern for SCOTUSblog in the winter of 2009-2010.

As of the end of the Court’s October Term 2009, the past ten former Solicitors General had argued a combined 357 cases.  Recent former Solicitors General have participated in some of the Court’s most significant recent cases: Greg Garre in Christian Legal Society v. Martinez (2010); Seth Waxman and Ted Olson in Citizens United v. FEC (2010); Paul Clement in McDonald v. Chicago (2010); and Walter Dellinger in District of Columbia v. Heller (2008).  Former Solicitors General are in many ways the stars of the Supreme Court bar, heading Supreme Court litigation practices at large firms and handling the briefing and arguments for big cases.  This trend is relatively new: although former Solicitors General from 1952 to 1980 became professors, judges, or private practitioners, and those from the 1980s and early 1990s generally litigated as consultants or independently, the past five former Solicitors General (with the exception of Elena Kagan, who is now a Justice on the Court) manage Supreme Court litigation practices.  In a recent paper in the Charleston Law Review, summarized in this post, I document this trend, explain the advantages that former Solicitors General can offer as litigators, and conclude that a variety of factors – including financial incentives, the rise of a Supreme Court bar, career obstacles, and a demand for sophisticated litigators – facilitated the trend.

Special relationships and responsibilities

Historically, the Solicitor General has had unique relationships throughout government: he (this post will use “he” because all former Solicitors General except for Elena Kagan are male) is appointed by, and serves an advisor to, the executive; he defends laws passed by the legislative branch; and he works primarily in the domain of the judical branch, where he supervises litigation by the government in both the Supreme Court (including amicus filings and oral arguments) and the lower federal courts.  The Solicitor General often plays a unique role at the Court:  he can confess error – even if the government prevailed – if he believes that a lower court decision was wrong, and he may decline to defend a statute that he regards as unconstitutional.  Finally, the Court often relies on the Solicitor General to help it to choose its cases by asking the Solicitor General – in a case in which the United States is not a party – to file a brief expressing the views of the United States.    Over the past four Terms, when the Office of the Solicitor General responded to such a Call for the Views of the Solicitor General (CVSG) by recommending that the Court grant certiorari, the Court agreed a remarkable ninety-seven percent of the time, and it agreed with the Solicitor General’s overall recommendations eighty-six percent of the time.  This unique role and the trust that the Office of the Solicitor General enjoys allows the Solicitor General to hone his lawyering skills and gain the respect of Justices and other repeat players at the Court.

A new trend

From 1952 to 1981, four former Solicitors General served as judges:  Thurgood Marshall became a Justice, while Robert Bork served on the D.C. Circuit.   Four former Solicitors General from 1952 to 1981 were judges, including Thurgood Marshall, who served on the Court, and three were academics.  Rex Lee, Charles Fried, Kenneth Starr, and Drew Days – SGs from August 1981 to January 1993 – split time between academia, private practice, and arguing cases at the Court.  With the exception of Elena Kagan, each of the Solicitors General who served after 1996 now heads a litigation practice primarily focused on the Supreme Court.  With the exception of Ted Olson, none argued at the Court until beginning work in the Solicitor General’s office.  Thus, there is a sharp contrast between the former Solicitors General from the first period that I have surveyed (1952-1981), who generally did not litigate after leaving the government, and those of the third period (1996 to the present), who generally did continue as litigators.

A variety of factors created an environment conducive to this shift.  In 1977, the Court allowed firms to begin advertising, and firms began comparing practices when legal periodicals such as The American Lawyer and National Law Journal began ranking firms.   Then, as Orin Kerr notes, around 1970, the number of clerks was increased from two to three, and by the 1980s, to four.  A larger group of former clerks results in a substantially larger pool of qualified members of a Supreme Court litigation group.  In 1985, the law firm now known as Sidley Austin built a Supreme Court practice around former Solicitor General Rex Lee; and according to Carter Phillips, the current head of Sidley’s Supreme Court practice, Lee’s work in private practice convinced potential clients that “there was something to be gained by getting specialized expertise…and certainly did start the ‘arms race.’” Two other firms, Mayer Brown and Gibson, Dunn & Crutcher, soon formed appellate groups of their own, and, in 1986, firms began to give Supreme Court clerks signing bonuses.

The rise and success of business and advocacy litigation increased demand for skilled advocates, which increased demand; indeed, Chief Justice John Roberts once observed that when “one side hires a Supreme Court specialist to present a case, it may cause the client on the other side to think that they ought to consider doing that as well.”  Thus, prior to the mid-1980s there were far fewer opportunities for former Solicitors General who wished to lead a litigation group or focus a practice on the Court; the development of a specialized Supreme Court bar allows former Solicitors General to pursue Supreme Court litigation full time if they wish to do so.

With the development of a Supreme Court bar, former Solicitors General are heavily recruited if they decide to go into private practice:  when he left the Solicitor General’s office, Paul Clement was described as the “LeBron James” or “Holy Grail” of law firm recruiting.   They are similarly highly compensated:  a former Solicitor General who heads an appellate practice can earn as much as five to six million dollars per year, nearly twenty-five times as much as the Chief Justice.

With experienced advocates often being regarded as most effective, business groups have turned to former Solicitors General to represent them, as have advocacy groups litigating on women’s rights, abortion rights, conservative causes, civil rights, the death penalty, and church and state issues.  From 2004 to 2007, nearly a thousand private organizations – many of which were pro-business groups able to afford a filing — filed briefs at the Court.  More generally, as amicus briefs have been filed and cited more frequently in the past thirty years, this has reinforced the view that they are worthwhile.

Repeat players and Supreme Court litigation

Repeat players who regularly litigate cases at the Court enjoy certain advantages, and former Solicitors General regularly benefit from their status as a favored repeat player.  They can often choose the cases in which they will seek Supreme Court review,  are familiar with the lower federal courts, can settle cases they believe they may lose, and can seek to litigate to create favorable precedents and avoid unfavorable precedents.  And given the likelihood that former Solicitors General will only improve with experience, their technical skills and knowledge – “what you know” advantages – and their reputation and special relationships at the Court—“who you know” advantages –  become even more valuable.

“Who you know” benefits

A former Solicitor General would, as a repeat player, enjoy “who you know” benefits based on relationships formed while he served as the Solicitor General and his reputation.  To begin with, the Solicitor General is held in high regard not only by the legal world, but also by the Court itself – to the extent that the Solicitor General has been given the nickname of the “tenth Justice.”  The Office of the Solicitor General has been the subject of books, conferences, and over sixty-nine articles.   Beyond this, former Solicitors General develop personal relationships.  Consider Theodore Olson, who has given speeches with Justice Thomas; been introduced by Justice Kennedy on a panel discussion which Justice Sotomayor attended; and hosted Justices Kennedy and O’Connor at his wedding.  Former Solicitors General have argued cases with Justices before they ascended to the Court, and would presumbably participate in moot courts and pre-trial preparations with them.  Chief Justice Roberts, for example, argued cases with Seth Waxman and Ted Olson before joining the Court.  Having argued with a Justice is not an opportunity unique to former Solicitors General, as other members of the Supreme Court bar have done so as well; rather, it is another means by which former Solicitors General can build trust with Justices and better understand their views, even before that Justice joins the Court.

Many former Solicitors General clerked, and may argue before the Justice for whom they clerked, or Justices they met while clerking, making it easier for Justices to trust former Solicitors General – a sentiment Justice Scalia captured when discussing his former clerk Paul Clement: “I am so glad he is [S]olicitor [G]eneral, because he makes my job easier. . . .”  The trust placed in former Solicitors General is by no means merely a product of their position, as former Solicitor General were exceptional lawyers before serving as SG; serving as SG gives them a boost, and allows them to hone their skills, build relationships at the Court, and enhance their credibility.

Clerks also trust former Solicitors General. In one study of former Supreme Court clerks, eighty-eight percent indicated they gave extra attention to an amicus brief filed by an academic; yet some who listed Chales Fried and Walter Dellinger as authors to whom they would pay particular attention “included them by virtue of their status as former Solicitors General, not merely because they were respected academics.”  Justices even prefer particular former Solicitors General, allowing them to earn votes by signaling support to a likeminded Justice.  For example, Justice Thomas was more likely to vote for a CVSG in a case involving former Solicitor General Kenneth Starr when the vote was expected to be close, as Starr would be likely to agree with him.

“What you know” benefits

Former Solicitors General are able to reap significant “what you know” advantages as repeat players.  As the Solicitor General, they supervise the screening of cases, monitor the lower federal courts, and have ample opportunity to hone their briefing skills. Consider the Office of the Solicitor General during the Court’s October Term 2009: at the petition stage, it filed thirty petitions, 162 response briefs, one amicus brief, and responded to twelve CVSGs.  A former Solicitor General can use this experience not only to write superior briefs, but also to encourage or discourage filings based on Court trends, or by noting issues in pending cases.

“Who you know” and “what you know”

Former Solicitors General can combine their skills, knowledge, relationships, and reputation to enhance their work.  Their background negotiating conflicts among various branches and agencies of the government would prepare them to coordinate briefs, thereby lowering costs, pooling resources, focusing the Court, and increasing the likelihood of success.  A former Solicitor General would have political connections and knowledge (Presidents Hoover, Roosevelt, Truman, Carter, and more recent presidents all worked directly with Solicitors General).

Positions within the practice groups of former Solicitors General are likely to be attractive ones for former clerks, who can serve as useful resources regarding the views of their Justices while briefing and in moot courts to prepare for oral argument.  Since 1990, Kirkland & Ellis has hired twenty-two former clerks; the firm now known as Wilmer Hale has hired forty clerks; and O’Melveny & Myers has hired eleven clerks, giving Kenneth Starr, Seth Waxman, and Walter Dellinger signifcant access to clerks.

Former Solicitors General also improve their oral argument skills through practice, as the position offers a near-unparalleled opportunity to appear regularly before the Court.  In their first year on the job, former Solicitors General argued on average between six and seven cases.  Many came to the job after having served as either a Deputy Solicitor General or an Assistant to the Solicitor General, and some argued as many as forty cases before leaving the Office.  Former Solicitors General are able to bring this experience to bear not only in their own arguments, but also by advising other attorneys scheduled to argue before the Court.  Drew S. Days is such a practitioner, having argued twenty-four cases and supervised a team of lawyers who argued 180 cases.

Future research

My view is that we need more information to draw a conclusion on either the merits of a specialized Supreme Court bar or the influence of former Solicitors General.  Social scientists may measure limited factors based on an Occam’s Razor approach – the belief that the simplest explanation is correct – and eliminate complex, but important, factors while searching for explanations.  And it is difficult (if not impossible) for researchers to study internal decision making at the Office of the Solicitor General or the Court.

A study of the effectiveness of former Solicitors General could come in two phases. The first stage would require statisticians to quantitatively measure the effect of former Solicitors General on litigation at the Court; the second would require social scientists and others to analyze the normative and legal implications of that influence.  Future research could use a random forest to predict case results, using data sets with as many as four thousand variables.  For example: data on which repeat players signed amicus briefs authored by former Solicitors General; circuit court trends; Justices’ questions; released Justices’ papers; measurements of information provided by former Solicitors General in Court opinions; etc.  The model could serve as a “gold standard” to determine case predictability and indicate how much of the data is actually useful in studying the Court.  Explanatory models could then be fit to the data and evaluated for accuracy.  If one could predict results with ninety-five percent accuracy with a model that includes thousands of data points, then explanatory models that focus on a few data points should be evaluated based on whether they meet that standard.