College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2015 Section 7: Supreme Court Bar Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 7: Supreme Court Bar" (2015). Supreme Court Preview. 251. https://scholarship.law.wm.edu/preview/251 Copyright c 2015 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. Supreme Court Bar In This Section: “AT AMERICA’S COURT OF LAST RESORT, A HANDFUL OF LAWYERS p. 349 NOW DOMINATES THE DOCKET ” Joan Biskupic, Janet Roberts and John Shiffman “ANALYZING THE IMPACT OF THE SUPREME COURT BAR” p. 358 Janet Roberts “ELITE LAW FIRMS SPIN GOLD FROM A RAREFIELD NICHE: GETTING p. 361 CASES BEFORE THE SUPREME COURT” John Shiffman, Janet Roberts and Joan Biskupic “CHAMBER OF COMMERCE FORMS ITS OWN ELITE LAW TEAM” p. 368 John Shiffman “FORMER CLERKS: TODAY’S PROSPECTS, TOMORROW’S ELITE” p. 370 John Shiffman “IN AN EVEN-CLUBBIER SPECIALTY BAR, 8 MEN HAVE BECOME p. 372 SUPREME COURT CONFIDANTS” Janet Roberts, Joan Biskupic and John Shiffman “INNOVATIVE LAWYER CHANGED THE WAY TOP FIRMS OPERATE” p. 379 John Shiffman “THE CASE AGAINST GAY MARRIAGE: TOP LAW FIRMS WON’T p. 381 TOUCH IT” Adam Liptak “ADVOCACY MATTERS BEFORE AND WITHIN THE SUPREME COURT: p. 384 TRANSFORMING THE COURT BY TRANSFORMING THE BAR” Richard J. Lazarus “At America’s Court of Last Resort, a Handful of Lawyers Now Dominates the Docket” Reuters Joan Biskupic, Janet Robets and John Shiffman December 8, 2014 The marble façade of the U.S. Supreme Court The Reuters examination of the Supreme building proclaims a high ideal: “Equal Court’s docket, the most comprehensive Justice Under Law.” ever, suggests that the justices essentially have added a new criterion to whether the But inside, an elite cadre of lawyers has court takes an appeal – one that goes beyond emerged as first among equals, giving their the merits of a case and extends to the merits clients a disproportionate chance to influence of the lawyer who is bringing it. the law of the land. The results: a decided advantage for A Reuters examination of nine years of cases corporate America, and a growing insularity shows that 66 of the 17,000 lawyers who at the court. Some legal experts contend that petitioned the Supreme Court succeeded at the reliance on a small cluster of specialists, getting their clients’ appeals heard at a most working on behalf of businesses, has remarkable rate. Their appeals were at least turned the Supreme Court into an echo six times more likely to be accepted by the chamber – a place where an elite group of court than were all others filed by private jurists embraces an elite group of lawyers lawyers during that period. who reinforce narrow views of how the law should be construed. The lawyers are the most influential members of one of the most powerful specialties in Of the 66 most successful lawyers, 51 America: the business of practicing before worked for law firms that primarily the Supreme Court. None of these lawyers is represented corporate interests. In cases a household name. But many are familiar to pitting the interests of customers, employees the nine justices. That’s because about half or other individuals against those of worked for justices past or present, and some companies, a leading attorney was three socialize with them. times more likely to launch an appeal for business than for an individual, Reuters They are the elite of the elite: Although they found. account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, THE NATURE OF THE BUSINESS these attorneys were involved in 43 percent of the cases the high court chose to decide “Working for corporate clients is the bread from 2004 through 2012. and butter of our practice,” said Ashley Parrish, a partner at King & Spalding whose 349 success rate in getting cases before the court broad diversity among counsel, best serves ranks him among the top handful of lawyers the interests of justice, they say. in America. “As a large national firm, we are generally conflicted from representing The growing power of the specialist bar individuals and advocacy groups in litigation worries some leading lawyers, however. against corporations,” he said. “They are Michael Luttig, general counsel for typically suing our clients or prospective aerospace giant Boeing Co., understands the clients.” advantages of hiring from that group; he has done so when the company has had a case The firm takes some criminal defense and before the justices. But as a former U.S. First Amendment cases pro bono. But like appeals court judge who earlier served as a other firms with Supreme Court practices, Supreme Court clerk, he says he also sees a such cases are the exception. downside. “It’s the nature of the business,” Parrish said. “It has become a guild, a narrow group of elite justices and elite counsel talking to each As a consequence, individuals seeking to other,” Luttig said. The court and its bar have challenge large companies are left to seek grown “detached and isolated from the real counsel from a pool of attorneys that’s world, ultimately at the price of the healthy smaller and, collectively, less successful. and proper development of the law.” The court generally has a conservative, pro- CHIEF’S LEGACY business majority, but even one of its most liberal justices, Ruth Bader Ginsburg, accepts Although the Supreme Court is the most the corporate tilt of the specialist bar that diverse it has ever been – three of the nine dominates the docket. justices are women and two are minorities – the elite bar is strikingly homogeneous: Of “Business can pay for the best counsel money the 66 top lawyers, 63 are white. Only eight can buy. The average citizen cannot,” are women. Ginsburg said. “That’s just a reality.” It’s also a self-replicating group of insiders, Chief Justice John Roberts declined to many of whom previously held positions that comment on the Reuters analysis. But offer them deep insight into how the court exclusive interviews with eight of the nine operates. Among the 66 leading lawyers, 31 sitting justices indicate that most embrace the worked as a clerk for a Supreme Court specialty Supreme Court bar. To them, justice; in that role, they wrote memos for the having experienced lawyers handling cases justices that summarized petitions and helps the court and comes without any highlighted cases that might be worth significant cost. Effective representation, not hearing. Twenty-five worked in top posts in the U.S. Office of the Solicitor General, 350 whose lawyers represent the federal the chief’s legacy at the firm and in the government before the court. Supreme Court bar,” he said. Like 14 others, lawyer Neal Katyal held both TOP LAWYERS KEY jobs. The rise of that specialty bar can be traced to At age 44, Katyal is a relative newcomer to the mid-1980s, when President Reagan’s first this upper echelon of attorneys. But last term, solicitor general, Rex Lee, joined the Katyal argued four cases before the high Washington office of Sidley Austin. court, second most among the bar’s top advocates. This term, he expects to argue at Demand had grown for lawyers who could least three. help corporations roll back workplace, environmental and consumer regulations that In his rise to the top, Katyal has patterned had roots in the late 1960s and early 1970s. himself after a man who was once one of the At Sidley Austin, Lee launched a high court most successful members of the court’s elite practice focused on business clients. In the bar: John G. Roberts. next two years, he argued a remarkable eight cases before the Supreme Court. Before becoming chief justice in 2005, Roberts served in the solicitor general’s By the time Lee died in 1996, other large office and then built a thriving Supreme firms were creating their own Supreme Court Court practice at the law firm where Katyal practices, largely on behalf of business now works. From 1989 through 2003, interests. Roberts appeared 39 times before the court. The star appellate lawyers, by virtue of the During interviews, Katyal often cites his appeals they write and sign, help the justices admiration for the chief justice, recounting winnow the pool of cases the court considers. the words of another attorney who Typically, the Supreme Court agrees to hear encouraged Katyal to take a summer just 5 percent of the petitions filed by private associate position working for Roberts in attorneys. It accepts 21 percent of the cases private practice. As Katyal recalled, the bearing the name of a leading advocate. conversation went like this: You know that G in John G. Roberts? the lawyer asked him. “They basically are just a step ahead of us in The G is for God. (It actually stands for identifying the cases that we’ll take a look Glover.) at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same Today, Katyal oversees the practice the chief standards” as the justices do. justice shaped, and he continues to follow the Some scholars say reliance on the expert bar Roberts model. “Every day I’m conscious of has made for a far more insular court. “We don’t want the justices to filter cases through 351 advocates,” said Jenny Roberts, associate These appeals included employment dean at American University’s law school.