Advocacy in the U.S. Supreme Court: expertise within the appellate bar.

• Author: McGuire, Kevin T.

During the early nineteenth century, there was a distinct Supreme Court bar, dominated by lawyers in and around Washington. Travel to the new capital city was difficult, and, rather than assume the onerous task of journeying to Washington to appear before the Justices, many lawyers would refer their cases to the litigators in the District of Columbia. Lawyers such as Thomas A. Emmet, Francis Scott Key, William Pinkney, Littleton W. Tazewell, Daniel Webster, and William Wirt were among the leading lights who served as the early gatekeepers of the Court. The advent of more rapid and efficient means of transportation, however, supplanted the need for a Washington-based bar, and the integrated group of appellate practitioners gave way to a more fluid and geographically diverse set of advocates.(1)

Today, countless interests turn to lawyers in Washington, D.C., for advocacy before the federal government, but much of that specialized representation is engaged for the pressure politics of the Congress and regulatory agencies. The consumers of such representation are most often pursuing the same basic objective: securing access to governmental decisionmakers.(2) Increasingly, however, those who seek access to the U.S. Supreme Court have once again begun to follow the same general pattern of tapping Washington-based expertise--lawyers in the capital community who emphasize appellate litigation. So pronounced is this apparent trend, one observer noted, that today "there seems to be forming, if it has not already, a new (unofficial) Supreme Court bar in which Washington lawyers once again play a starring role."(3) Has the Washington bar actually regained a dominant position in Supreme Court politics? Which among these litigators can be thought of as genuine members of the "Supreme Court bar"? And do these lawyers, like other specialists, serve the same function of gaining access to policy makers?

To answer these questions, I draw upon several sources of data. First, to assay the profile of the most active members of the Supreme Court bar, I gathered information on those lawyers who participated in multiple cases decided on the merits from the 1977 Term to the 1982 Term. For these lawyers, I collected demographic information as well as data relating to both their general practices and the nature and extent of their specific litigation activities in the Court during that time period. These data were taken from several sources, including the United States Reports, Briefs and Records of the United States Supreme Court, and various editions of the Martindale-Hubbell Law Directory. Second, as a means of gauging which lawyers are regarded as expert Supreme Court advocates, I conducted a mail survey of a sample of Supreme Court practitioners in which I asked respondents to nominate from among their peers those they felt were the Court's best litigators.(4) Third, to analyze the effect of these notables as modern gatekeepers of the Court, I examine their impact on the Supreme Court's selection of cases from paid petitions for the writ of certiorari during the 1982 Term. In addition, to provide some contextual foundation for this study, I interviewed, on an anonymous basis, nineteen active Supreme Court practitioners.

Briefly, the results demonstrate that lawyers within the Washington community, comprising a substantial component of the bar of the Court, generally are viewed as the Court's premiere litigators. Moreover, the certiorari petitions brought by these lawyers enjoy a significant advantage as the Justices construct their plenary agenda. Thus, just as the lawyers in Washington are better able to gain access to members of the legislative and executive branches, so too are they more effective in gaining access to the judicial branch.

2. WASHINGTON LAWYERS AND THE SUPREME COURT BAR

   Between 1977 and 1982, roughly 4,000 lawyers formally participated in the fully-argued cases that the Supreme Court decided on the merits.(5) For many it was probably their first and last appearance before the Justices. Still, even within that relatively short time period, some fifteen percent appeared in more than one case. In fact, this small percentage--which I will call the "experienced" Supreme Court bar--actually commanded a hefty portion of the representation in the Supreme Court, making half of all formal appearances by counsel. Who were these lawyers?

   As one might suspect, a substantial number of the lawyers with multiple cases are governmental representatives. A quarter of them work for the federal government, while about the same percentage serve state and local governments. An additional eleven percent work for organized interests, while the ranks of academia, corporate in-house counsel, and legal aid or public defender programs each contribute roughly two percent. The lawyers making the single largest contribution to this group, however, are private practitioners, nearly one third of the experienced bar. Although these private counsel hail from regions across the country, fifty percent of them work in a single geographic location--Washington, D.C.

   Table 1, which presents data on the primary urban locations of the experienced Supreme Court counsel, reinforces the view that Washington is the principal city in which active members of the Court's bar practice; the number of lawyers in the District of Columbia, some forty-three percent, towers above the proportion of counsel from virtually every other locale. This clearly is not a reflection of the bar at large, since Washington, New York, and Chicago have more or less comparable shares of the total lawyer population.(6) It is true, of course, that Washington's disproportionately large percentage is, at least in part, a function of the wealth of federal government attorneys who work in Washington and appear in the Court. The federal government's counsel, however, do not tell the whole story; a substantial segment of the Washington lawyers (32%) work in private practice.

   TABLE 1. PRINCIPAL LOCATIONS OF EXPERIENCED MEMBERS OF SUPREME COURT BAR

   All lawyers Percent Private practice only Percent Washington 43.0 Washington 47.8 New York 9.4 New York 10.7 Chicago 5.4 Chicago 7.8 Los Angeles 3.2 Los Angeles 3.4 San Francisco 2.7 Phoenix 2.4 Austin 2.0 Philadelphia 2.0 Atlanta 1.7 San Francisco 2.0 Boston 1.6 Minneapolis/St. Paul 1.5 Phoenix 1.6 Houston 1.0 Minneapolis/St. Paul 1.3 Pittsburgh 1.0 N = 709

   N = 205

   Among the private practioners, Washington still maintains a commanding presence. This is particularly noteworthy, given that so few lawyers in the District of Columbia practice privately: less than forty percent of all Washington lawyers are in private practice, in comparison to seventy percent of the lawyers in both New York and Chicago.(7) Overall, the private lawyers in Washington comprise nearly half of all the Court's experienced private litigators. These data illustrate quite strikingly the centrality of Washington as the nation's legal center. Moreover, many of the cases that end up in the Supreme Court are products of the Courts of Appeals for both the District of Columbia and the Federal Circuits; many litigants are likely to turn to local counsel for representation in these appellate courts and retain them for any subsequent work in the Supreme Court. Finally, and perhaps most obviously, the Court itself is in Washington, and, when clients have cases before the Supreme Court, they may perceive the need to have genuine Supreme Court specialists and consequently look to the firms that work in the Court's shadow.(8)

   Clearly, not all Supreme Court counsel are located in Washington. One should not, however, lose sight of the concentration of experienced litigators in the capital relative to that of other cities. On the one hand, fifty percent of the most experienced Supreme Court lawyers work in cities other than Washington. On the other hand, the cities making even a modest contribution to the Court's bar, when taken together, do not begin to approach the lion's share that Washington commands. Of course, this concentration by itself does not tell us anything about the relative effectiveness of these lawyers. After all, just because parties turn disproportionately to Washington counsel when litigating before the Justices does not mean that those lawyers provide qualitatively better representation. Whether certain types of lawyers can be regarded as more effective--as expert Supreme Court practitioners--is a topic to which I now turn.

3. SOURCES OF THE BAR'S REPUTATION

   When the American Truckers Association needed representation in the Supreme Court, to whom did they turn? The Chicago-based firm of Mayer, Brown & Platt. Why? "We wanted the best," said their chief counsel.(9) What would make such a firm "the best" when it comes to litigating in the Court? Why is it, precisely, that some lawyers are regarded as true Supreme Court counsel while others garner no similar favorable reputations? In short, why are some lawyers viewed as Supreme Court practitioners? There is probably no formula for acquiring the status of a true Supreme Court lawyer, but we can probably account for some of the considerations that contribute to it.

   Scholars of the legal profession have investigated similar issues. In one important work, for example, Heinz and Laumann examined the social hierarchy of the Chicago bar.(10) In their study, they asked the respondents whether they knew several of Chicago's most notable practitioners. This proved to be very effective in characterizing the stratification within the bar. Drawing upon their analysis, I employed a similar strategy in my investigation of effectiveness within the Supreme Court bar: I asked the Supreme Court practitioners themselves to nominate litigators whom they regarded as the Court's expert advocates, and they responded by nominating 166 different litigators as skilled Supreme Court counsel.

   Why were these lawyers selected? What factors...