“Ask the Author”: Richard Lazarus, Part I

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 II of the interview, click here.

What was your motivation for studying the influence of experienced advocates before the Supreme Court? Was your data consistent with your expectations prior to commencing the project?

The research for this article originated in an article I was researching on the 14 Supreme Court cases concerned with the National Environmental Policy Act (NEPA), because I have long been intrigued by the fact that environmentalists have not been the petitioner in any of the cases, the government has won every time, and the environmentalists have not even obtained a single vote from a Justice since 1976. To try to discover what happened, I reviewed all the jurisdictional and merits briefs and oral argument transcripts filed in not only those cases but in the far greater number of cases in which the Court denied review. I also read the available papers of Justices Blackmun, Brennan, Douglas, and Powell pertaining to all of these cases, including pool memos, bench memos, argument notes, draft opinions. What I discovered was what a big difference good advocacy made in those cases, including advocacy made by advocates before the Court, knowing what arguments to press and which ones to discard, and by Justices acting as advocates within the Court, especially Rehnquist who was especially effective and Douglas who was especially ineffective.

That research prompted me to switch gears in mid-stream and to consider whether the rise of the modern Supreme Court Bar was similarly having an impact on the Court’s docket and its decisionmaking. For the NEPA cases, the expert advocates before the Court were primarily the SG’s Office representing federal agencies. What I wanted to consider was whether the rise of a modern private sector expert Supreme Court Bar in the past couple decades meant that the Bar’s clients were experiencing disproportionate success. My expectation was that they were enjoying such success based on my observations of the outstanding quality of the work of their counsel. And, I expected that the impact would be potentially far greater at the cert stage than on the merits.

I was surprised therefore not by the conclusions that I ended up drawing after closer examination of the data, but on the extent of the impact. I did not fully appreciate the extent to which the Bar had grown and was dominating advocacy before the Court. And, I far underestimated their success at the cert stage. Also surprising to me was how the Bar’s dominance seemed to be dramatically increasing even as I studied it during the past couple years.

You conclude that experienced advocates have higher success rates before the Supreme Court. At what stage of the adversarial process before the Court-the certiorari or the merits-is the influence of experienced Supreme Court advocates most important?

The cert stage without a doubt. Obtaining Supreme Court review is the single hardest thing a Supreme Court advocate does. T he odds are stacked enormously against success, but it is also where effective advocacy can make the biggest difference for the simple reason that the Justices cannot possibly devote significant time to the decision whether cert should be granted. While the clerks, especially those in the eight chambers participating in the cert pool can devote more time, it is still not that much time and the lack of time and the lack of relevant background in the legal issues involved inevitably make the clerks highly dependent on the quality of the advocacy. Once plenary review is granted, all chambers are working on overdrive and can make up for poor advocacy. The probability of that happening at the cert stage is low and sporadic at best.

Do experienced Supreme Court advocates have a higher success rate at the certiorari stage? If so, why might that be?

They do. Roughly speaking they enjoy a 15 to 25 percent success rate and their petitions currently represent between 40 and 50 percent of the non-SG petitions before the Court, which is astoundingly high. I looked at the progression for several years since 1980, and it has steadily significantly increased from fewer than 6 percent in 1980 to approximately 44 percent in OT 06. So far this Term as of last Friday (11/23/07), they are responsible for 49.5 percent of the successful non-SG petitions.

A number of factors contribute to their success. Because of the absence of space, I am going to simplify some of those reasons here, but those interested should look at the fuller draft article because many of these points are far more nuanced and carefully qualified than space here allows. The article offers a fair amount of support both by statistics and illustrative examples.

Most important, the expert counsel know the kinds of things that will interest the Justices and they know how best to make their cases seem like they relate to those interests. This frequently requires dramatically recasting the legal arguments and policy implications raised by a case and abandoning wholesale arguments made below, sometimes aided by petitions for rehearing in the lower courts in an effort to place a new legal issue in the record. It also often requires creative characterizations of circuit conflicts by looking at a case from a variety of angles and several different degrees of generality. Few cases present a square circuit conflict at a very specific level. Far more conflicts can be discovered, however, if one looks to increasingly higher levels of generality. This takes great skill in advocacy and a mastery of the Court’s precedent as well as lower court precedent to identify cross-cutting legal issues implicated by a case.

To persuade the Court that the legal issues presented are important, the expert Bar is especially effective at securing the filing of amicus briefs in support of review. This has the incidental advantage of also providing more work for other members of the Bar. The experts know the filing of amicus briefs by certain kinds of entities (and counsel) are more likely to demonstrate to the Justices and the clerks that a case is important. And, no less important, the expert advocates have the professional connections and credibility necessary to get those briefs filed within the short time frames. My article both documents a dramatic increase in the number of such filings and confirms a previously-established statistical correlation between amicus filings and cert grants.

Another, related tactic often used by the better advocates is the prompt publication in national news media outlets of stories touting the importance of a case now pending on petition before the Court. Wall Street Journal op-eds are a favorite. I recall in recent years in which the petitioner persuaded (my speculation) a former SEC commissioner to write an op-ed saying why the petition should be granted and petitioner then used that publication as the exclusive basis for a supplemental brief in support of review, which was granted. And these publications are timed to appear precisely when the Court is considering the petition.

Finally, although many clerks formally deny that the mere name of a well known Supreme Court advocate on a petition makes the clerk more likely to pay closer attention to the petition, many others in private interviews have confirmed the obvious that they do. No shock here. Just the natural result of recent law grads, no matter how wonderful their law school grades, in need of proxies to suggest the relative importance of one in a pile of thousands of petitions.

None of this disputes the equally obvious thesis that the identity of the Justices themselves makes a big difference. Of course it does. The makeup of the Justices presents the ingredients with which an advocate must work and the mix of ingredients affects what cases are reviewed and the outcome. A Court full of members who approach the law like Justice Thomas will grant review in different cases and reach different results than a Court full of members who approach the law like Justice Souter. My analysis accepts that premise. What my analysis then shows is that regardless of the Court’s mix, the advocates also make a difference. The best advocates are able to persuade the Court to grant cases they otherwise would not grant. And ineffective advocates can take what would be a certworthy case in the hands of an expert and fail to present it in the way necessary to have that realized at the jurisdictional stage. Both happen all the time.