A clinic's place in the Supreme Court bar.

• Author: Fisher, Jeffrey L.
• Position: Introduction to II. Clinical Opportunities B. Operational Considerations 1. Expertise Concerning the Court A. Seeking Certiorari, p. 137-169

INTRODUCTION I. TESTING THE VALUE OF SUPREME COURT SPECIALIZATION A. Methodology B. Relative Success Rates C. Isolating Causes for the Differential 1. Selection bias 2. Amicus support from the United States II. CLINICAL OPPORTUNITIES A. Educational Considerations 1. Pedagogical considerations 2. Public service considerations B. Operational Considerations 1. Expertise concerning the Court a. Seeking certiorari b. Opposing certiorari c. Litigating on the merits 2. Resources a. Certiorari stage b. Merits stage 3. Substantive expertise III. CLINICAL CHALLENGES AND RESPONSIBILITIES A. Case Selection 1. Alternative avenues for relief 2. Coordination of similar cases 3. Screening cases to avoid making "bad law" a. Putting the issue in context b. Can clinics screen? c. Should clinics screen? B. Case Handling C. Postdecision Work CONCLUSION INTRODUCTION

Early in the October Term 2009, the Supreme Court was hearing argument in a case, Perdue v. Kenny A., (1) raising the question whether attorneys who prevail in a civil rights case may receive a fee enhancement above their typical lodestar rate for having done an exceptionally good job on a case. Chief Justice Roberts interrupted the plaintiffs' lawyer. "I don't understand the concept of extraordinary success or results obtained," the Chief Justice suggested. (2)

The results that are obtained are presumably the results that are dictated or command[ed] or required under the law. And it's not like, well, you had a really good attorney, so I'm going to say the law means this, which gives you a lot more, but if you had a bad attorney I would say the law [means something else]. The results obtained should be what the law requires, and not different results because you have different lawyers. (3) Chief Justice Roberts' comments were a bit tongue-in-cheek. (4) For one thing, the Chief Justice himself was an exceptional advocate before he was appointed to the bench. He was known for being able to secure victories in particularly challenging cases. For another, the Chief Justice was speaking to Paul Clement, a former U.S. Solicitor General whom the plaintiffs had hired in the case presumably because they thought his extraordinary skills might make a difference. Finally, and most important, it is common wisdom that the quality of advocacy often does matter. (5) Better lawyers often get better results for their clients. (6) (Better lawyering, of course, might be the result of superior skill, superior experience, superior resources, or some combination of all three.) (7) At least that has long been the collective wisdom--reinforced by the market--when it comes to settlements, trials, and initial appeals.

But when it comes to Supreme Court litigation, one might think that the Chief Justice is right. Certainly, one might want to think that the Chief Justice is right. Supreme Court cases typically deal primarily with pure questions of law. And it seems strange to say that the requirements of the Constitution--or, for that matter, any federal statute--can depend on who happens to represent the parties in a case. Shouldn't the meaning of statutes and constitutional provisions be fixed, free from the arbitrariness of which lawyers might be involved in a given case?

On the other hand, it stands to reason that if the quality and experience of lawyers matter everywhere else, they ought to matter in the Supreme Court as well. The Justices are people like any other judges. Some Justices are more expert in some fields than others; they have different life experiences and bodies of knowledge; and they face resource and time constraints on their acquisition of new information. They therefore ought to respond, at least in marginal cases, to exceptional advocacy.

That is the calculation that the plaintiffs made in selecting Paul Clement as their attorney in Kenny A. It is also the calculation that the United States government made years ago when it established the Solicitor General's office. Many states have followed suit in recent years, establishing or enhancing existing solicitors general's offices. (8) And as Richard Lazarus has recently elaborated, the business community has also increasingly turned to a select group of Supreme Court "specialist" lawyers, hoping to boost its influence and to improve its outcomes in the Court/As a result of these trends, we live in the first era since the one shortly following the country's founding in which a genuine "Supreme Court Bar" exists and handles a substantial portion of the cases the Court hears. (10)

What is more, in statistical analyses concerning cases the Supreme Court decided between 1977 and 1982, Kevin McGuire concluded that having more experienced counsel did matter. Leaving aside cases in which the Solicitor General's office was involved, and holding all else equal (including the identity of the parties and ideology of the position espoused), a petitioner's odds of winning during that period rose between 7% and 10% when represented by an attorney with more experience in handling Supreme Court cases. (11) Petitioners won only 65% to 66% of the cases decided during that period but won between 73% and 75% of cases in which they were represented by attorneys with more experience than the respondents. (12) In an even more striking finding, McGuire concluded that experience was so important that when the Solicitor General's office faced off against equally experienced counsel, the office's oft-noted litigation advantage (13)--deriving primarily from its lawyers' depth of experience and the special client they represent--"disappear[ed] completely." (14) He "conclude[d] that, at least insofar as decisions on the merits are concerned, the federal government is not, as some have suggested, the 'tenth justice.' Instead, the solicitor general is merely one of many successful lawyers who appear before the Court." (15)

These statistics are obviously somewhat outdated, arising from a different Court and a different time. In the late 1970s and early 1980s, there were hardly any lawyers outside of the Solicitor General's office with significant Supreme Court experience who appeared in the Court. (16) Whatever local lawyer happened to have a case that went up to the Court tended to keep it. Thus, differences in "experience" were often quite marginal (for instance, one prior argument versus two), and the Solicitor General rarely faced off against equally experienced counsel. For these reasons and others, McGuire's analyses are somewhat imperfect. (17) Indeed, Lazarus recently offered that his "intuition based on involvement in literally hundreds of cases before the Court is that McGuire's analysis significantly overstates the extent to which litigation experience eliminates the distinct impact that the Solicitor General's Office has on the Court's decision[s]." (18) Even so, Lazarus agreed that "the emergence of a private Supreme Court Bar capable of matching and sometimes even bettering" the Solicitor General's Office in terms of experience has "reduc[ed] the Solicitor General's disproportionate influence on substantive outcome." (19) And if that supposition is correct, one would also predict as a general matter that that expertise in advocacy, as well as depth of resources, would still make at least some difference in the Supreme Court--whether one's opponent be the government, a business, or any other litigant.

This is no small matter. As Richard Posner and Albert Yoon recently explained (with trial and intermediate appellate courts principally in mind):

To the extent that law is purely a private good--as in many civil cases it is-disparities, even vast ones, [in quality of representation] may be tolerable. But the legal process is also an important public good. Especially in a case-based legal system such as that of the United States ..., litigation not only protects private and public rights but also is the vehicle for the development and refinement of the law itself. That function can be distorted by large disparities in the quality of legal representation.... (20) As serious of a concern as this is with respect to garden-variety litigation, it is enormously important when it comes to Supreme Court cases. Such cases establish precedent that defines the law across the country, and for generations. In that sense, no Supreme Court case involves just the named parties. The lawyers represent not just the actual litigants involved but also, in a very real sense, untold numbers of other current and future individuals who find themselves in similar or related circumstances. A "wrong" turn in the law--that is, a turn that is affected by an imbalance in representation instead of the strength of legal arguments--can have profound consequences. And an ongoing representational disadvantage for identifiable classes of litigants can systematically skew the law against them.

It was with these assumptions partly in mind that Stanford Law School, in 2004, created the nation's first Supreme Court Litigation Clinic. (21) The school's primary hope, of course, was that by providing pro bono legal assistance to litigants in the Court, the Clinic would provide an excellent educational experience for students. But the school also hoped that the Clinic, in line with the general design of law school clinics, (22) would perform a public service: providing expert counsel and a pool of resources to litigants--most often, criminal defendants and individual civil plaintiffs--who would not otherwise be able to pay for such assistance.

The Stanford Clinic's three original instructors--Pam Karlan, Tom Goldstein, and Amy Howe--have published an article describing the Clinic's educational attributes and pedagogical approaches. (23) When they wrote their piece, however, it seemed too soon to assess the Clinic's public service mission. The Clinic's docket was still developing, and the Court was just starting to pass judgment on its cases. And no other law school had yet...