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The Modern Reemergence of a Supreme Court Bar

Strictly speaking, to be a member of the Supreme Court Bar today is not a big deal. Although attorneys routinely tout their membership in the Bar as a meaningful credential of distinction, the Supreme Court Bar is one of the least discerning clubs. The Court has characterized an attorney advertisement that emphasizes the fact of membership in its Bar as “at least bad taste.”[1] The qualifications for membership are minimal: three years as a practicing lawyer admitted to any bar of any state, a certificate of good standing from that bar, sponsorship by two current members of the bar, and a $200 check payable to the Court. More than 280,000 of the nation’s approximately 1.3 million licensed attorneys are members of the Supreme Court Bar.[2] Of course, relatively few of the thousands of members of the Supreme Court Bar have ever filed a brief in the Court, let alone represented a party in a case granted review or presented oral argument before the Justices.

Nor, until relatively recently, had those few members of the Bar who do appear before the Court formed the kind of identifiable group of expert Supreme Court practitioners, such as Daniel Webster, Walter Jones, and William Wirt, that dominated advocacy before the Court during the nineteenth century.[3] The virtual monopoly that a handful of lawyers possessed over Supreme Court advocacy during that early part ofthe nation’s history was largely the result ofgeography. Washington, D.C. was literally a swampland, and travel from major cities such as New York City or Boston was too difficult for leading members of their respective bars. That is why lawyers from Maryland, Virginia, and Pennsylvania enjoyed such prominence before the High Court. By the latter half of the nineteenth century, the Supreme Court Bar naturally and gradually lost its cohesiveness as travel became easier.

Throughout most of the twentieth century, the only significant, ongoing concentration of Supreme Court expertise was in the Office of the Solicitor General, representing the United States before the Court. The ten attorneys who argued the most cases before the Court between 1900 and 2005 all worked with the Solicitor General’s Office for a significant part of their careers. Only one attorney in the top twenty and only two out of the top thirty did not work with that Office.[4]

The resulting advantage in expertise that attorneys within the Solicitor General’s Office gained is one reason for the high rate of success that the federal government has enjoyed before the Court in recent decades. The Court plainly provides the Solicitor General’s legal arguments with heightened respect because of the nature of the Solicitor General’s client—the United States—and the deference that the judicial branch naturally owes in many legal settings to the views of counsel representing the interests of the two other branches of government.

The Court grants the Solicitor General’s petitions for writ of certiorari at an order of magnitude higher than anyone else’s—about 70 percent of the time compared to less than 3 to 4 percent for others.[5] The Court almost always grants the Solicitor General permission to participate in oral argument as amicus curiae, yet rarely grants similar permission to any other amicus. The Court uniquely invites the Solicitor General to file an amicus brief advising the Court at the jurisdictional stage whether review should be granted in a host of cases each year, and the Court regularly follows the Solicitor General’s advice.[6] And, on the rulings on the merits, the Solicitor General wins in the vast majority of cases in which the federal government participates either as a party or as an amicus.[7] Like all other parties, its success rate is much higher as a petitioner or an amicus supporting a petitioner than as a respondent or amicus supporting a respondent, but the federal government has historically enjoyed far more favorable rulings in all of these roles than have others.

While the Solicitor General’s Office’s most high-profile responsibilities are the filing of merits briefs and presentation of oral arguments before the Supreme Court, the fifteen to twenty attorneys within that office have broader responsibilities, which no doubt also play a role in their high degree of success before the Court. They file hundreds of oppositions to petitions for writ of certiorari in cases the federal government won below, trying to keep cases and issues from the Court, especially when presented in potentially unfavorable postures.

The Solicitor General’s longer-term interest in representing the United States—and not just a particular client in a particular case—provides the Solicitor General with far more independence and authority in crafting litigation strategies before the High Court. More than just a craftsman taking the legal arguments of others and making them sound more persuasive, the Solicitor General routinely rejects legal arguments that the government has advanced

(even successfully) in the lower courts in favor of new and often radically different legal theories that it believes possess greater validity, more force, and are more likely to lead to a ruling favorable to the broader interests of the United States. This enhances the credibility of those cases and arguments when advanced before the Court.[8]

One factor that plainly plays a significant role in the Solicitor General’s success is the sheer expertise in Supreme Court advocacy of the attorneys in that Office. Because they immerse themselves in the work of the Court, the attorneys of the Solicitor General’s Office become completely familiar with the Justices and their precedent, including their latest concerns and the inevitable cross-currents between otherwise seemingly unrelated cases that would be largely invisible to those who focus on just one case at a time. They work hard as repeat litigants to establish their credibility with the Justices. They know how to write briefs for that audience and how to anticipate problems and exploit opportunities.

During the first half of the twentieth century, several former Solicitors General went to New York City law firms where they sought to establish Supreme Court practices as named partners: John W. Davis at Davis Polk where he was the most successful, with 139 career arguments; Charles Evans Hughes Jr., at Hughes, Hubbard & Reed; and Thomas D. Thacher at Simpson Thacher where he had a steady Supreme Court practice. But, by the mid-1980s, there was no coherent private-sector Supreme Court Bar able to compete with the Solicitor General’s Office. To be sure, there was a smattering of individuals, more likely to be affiliated with an organization like the American Civil Liberties Union (ACLU) or the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) than a private law firm that had appeared more than once before the Court, but those non-Solicitor General Office attorneys were the rare exception. Indeed, in commenting on how infrequently he would see a private-sector lawyer argue more than once in the same term, ChiefJustice William Rehnquist remarked not long after his appointment in 1986 that “there is no such Supreme Court bar at the present time.”[9]

Beginning first slowly in 1985, and then quickly accelerating, a private Supreme Court Bar capable of replicating the expertise of the Solicitor General’s Office began to develop. The modern transformation of the Bar began when Sidley

Austin hired Rex Lee, following his resignation as President Ronald Reagan’s first Solicitor General in the summer of 1985. Lee set out to establish a highly visible Supreme Court and appellate practice that could provide to private-sector clients the kind of outstanding expert advocacy that the Solicitor General’s Office had provided federal agencies. Lee was enormously successful from the outset, securing repeated oral arguments before the Court almost immediately. Lee’s clients were a virtual Who’s Who of the nation’s major industries. In separate cases in a single term, he argued on behalf of leading representatives of the banking, mining, railroad, electric utility, and telecommunication industries.[10] The former Solicitor General had accomplished what no one had done for decades and what the Bar had assumed was no longer economically feasible: he had developed a highly profitable Supreme Court practice on behalf of private-sector corporate business clients.

The impact on the private bar of Lee’s success at Sidley was immediate and has been long-lasting. A rival Chicago law firm, Mayer, Brown & Platt, which had boasted of a Supreme Court practice but never achieved such prominence before the Court, quickly responded to Lee’s success with an unprecedented raid of much of the top talent in the Solicitor General’s Office.[11] In response, two other major Chicago law firms, Jenner & Block and Kirkland & Ellis, joined the competition by establishing their own Supreme Court practices in D.C., the latter by hiring former Solicitor General Ken Starr at the end of the Bush administration. In D.C., Hogan & Hartson brought in John Roberts—first from the White House and a second time from his position as Principal Deputy Solicitor General under Solicitor General Starr—to raise the law firm’s profile and marketability in Supreme Court advocacy. Other Washington firms followed suit, including (but not limited to) Covington & Burling, Wilmer Cutler (now Wilmer Hale), Jones Day, Gibson, Dunn & Crutcher, and O’Melveny & Myers, increasing the competition for paying clients seeking Supreme Court representation.

Some organizations within the nonprofit sector, such as the ACLU, possess long-standing Supreme Court expertise, but most have little in-house expertise in Supreme Court practice and, as a result, are highly dependent on the willingness of the private law firms to take on their matters on a pro bono basis. The principal exception is Public Citizen’s Supreme Court practice, which has long provided high-quality assistance in the preparation of briefs and presentation of oral argument to public interest advocates with cases before the Court.

More intriguing still has been the recent proliferation in many of the nation’s leading law schools of Supreme Court clinics, in which law students—closely supervised by law faculty and many of these same private law firm lawyers—take on pro bono cases on behalf of individuals and organizations.16

  • [1] See In re R.M.J., 455 U.S. 191, 205 (1982) (“The emphasis of this relatively uninformative fact isat least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar withthe requirements of admission to the Bar of this Court.”).
  • [2] Lawyer Demographics, Am. Bar Ass’n (2015), available at http://www.americanbar.org/con-tent/dam/ aba/ administrative/ marke t_research/lawyer-demo graphics-tables-2015. authcheckdam.pdf (last accessed February 22, 2016); e-mail from Ellie Sheinwald, Intern, Supreme Court of theUnited States to Andrew Peterson (on file with author). One limitation of the Court’s listing of members of the Supreme Court Bar is that the Court does not require any kind of annual fee or reenrollment to maintain membership. Upon joining once, an attorney is a permanent member of the Court’sBar absent a formal disbarment action by the Court. Kevin T. McGuire, The Supreme CourtBar: Legal Elites in the Washington Community 30 (1993).
  • [3] According to a compilation prepared by the Supreme Court, Walter Jones, Daniel Webster, andWilliam Wirt are the top three oral advocates before the Court in terms of frequency of appearances,although for each the Court notes that there is some dispute about the precise total number of casesargued. See Supreme Court of the United States, Information Sheet: Most Argued Supreme CourtCases (Aug. 2005) ( on file with author).
  • [4] Supreme Court of the United States, Information Sheet: Most Argued Supreme Court Cases(Aug. 2005) (on file with author).
  • [5] Corey A. Ditslear, Office of the Solicitor General Participation before the U.S. SupremeCourt: Influences on the Decision-making Process 32 (2003) (unpublished PhD diss., Ohio StateUniversity) (on file with author); Mark A. Jones, An Influence Above the Federal Interest: TheSolicitor General’s Pervasive Participation in Supreme Court Litigation 16 (April 2006) (unpublished manuscript) (on file with author) (statistical survey of Solicitor General’s Participation inSupreme Court as petitioner, respondent, and amicus curiae); see H. W. Perry, Jr., Deciding toDecide: Agenda Seeing in the United States Supreme Court 128-33 (1991) (discussingSolicitor General’s office and its success appealing to the Court).
  • [6] Rebecca Mae Salokar, The Solicitor General: The Politics of Law 142-45 (1992).
  • [7] Id. at 142-50.
  • [8] The Solicitor General authorizes a petition for a writ of certiorari in only a small fraction of thecases that the United States loses in the lower courts. Former Solicitor General Rex Lee estimatedthat he declined five out of every six client agency requests for Supreme Court review “not because hedisagree[d] with [his client agency’s] position, but solely because he perceive[d] that filing that casemight affect his relationship with the Court.” See Rex E. Lee, Lawyering for the Government: Politics,Polemics and Principle, 47 Ohio St. L.J. 595, 598 (1986).
  • [9] Tony Mauro, Appealing Practice, Legal Times, October 9, 2007, at 14.
  • [10] See Corp. of the Presiding Bishop of the Church ofJesus Christ of Latter-Day Saints v. Amos,483 U.S. 327 (1987) (argued March 31, 1987); Citicorp Indus. Credit, Inc. v. Brock, 483 U.S. 27(1987) (argued April 20, 1987); Burlington N. R.R. Co. v. Bhd. of Maint. of Way Employees, 481U.S. 429 (1987) (argued February 23, 1987); Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.557 (1987) (argued December 1, 1986); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.470 (1987) (argued November 10, 1986); R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S.130 (1986) (argued October 6, 1986).
  • [11] Jill Abramson, Mayer, Brown's “Shadow" Solicitors, Legal Times, November 24, 1986, at 1;Nathan Koppel, Mayer, Brown: A Private SG's Office, Legal Times, October 30, 2000, at 16.
 
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