Experience matters: the rise of a Supreme Court bar and its effect on certiorari.

• Author: Swanson, Joseph W.

1. INTRODUCTION

   During Maureen Mahoney's oral argument in the Michigan affirmative action cases, then-Chief Justice Rehnquist addressed his former clerk as "Maureen." (1) In that same case, Justices Stevens and Souter called one of the amicus briefs the "Carter Phillips brief" and the "Phillips brief," apparently referring to the well-known advocate whose name appeared on its cover. (2) These rare personal references illustrate the growing familiarity between the Justices and the lawyers who appear before them frequently, particularly those attorneys who have devoted their practices to mastering Supreme Court advocacy.

   The rise of a dedicated Supreme Court bar has attracted considerable attention from the press (3) as well as comment from current and former members of the bar itself. (4) This commentary has generally focused exclusively on the role that the specialized bar plays at oral argument and its effect on the merits of each case, (5) but this paper examines a relatively underappreciated issue: whether these elite Supreme Court practitioners enjoy disproportionate success at the critical certiorari stage. (6)

   The article begins by documenting the historical development of the Supreme Court bar and profiling a few of its elite members. Then, using earlier studies and anecdotal and statistical evidence, this paper shows that these specialists play a particularly influential role in shaping the Court's agenda. After a discussion of certiorari practice in general, the paper concludes with a qualitative analysis of three successful petitions. These petitions, each written by a leading Supreme Court practitioner, prove that the unique skills that come with specialization distinguish these advocates from their peers (7) and likely account for their greater success at obtaining certiorari.

2. THE MODERN SUPREME COURT BAR

   1. Overview

      By the mid-1990s, several Washington firms began developing Supreme Court practice groups. (8) That trend continues today, with an increasing number of firms focused on Supreme Court work. One informal survey found that between late 1999 and early 2006, the number of firms offering established Supreme Court practices grew from nine to twenty-four, a remarkable increase of fifteen firms in just six years. (9) This proliferation of Supreme Court specialization has led to a dramatic rise in the number of repeat appearances at oral argument by lawyers who can be characterized as Supreme Court elites. (10)

      With seventeen oral arguments to his credit, Thomas C. Goldstein of Akin Gump exemplifies the trend toward Supreme Court specialization. (11) In fact, Goldstein's former law firm touted itself as "the nation's only Supreme Court litigation boutique." (12) In 1999, when he launched that firm, Goldstein believed that "there were many opportunities to bring cases to the Supreme Court that no one was taking there." (13) With that in mind, Goldstein aimed, not only to win cases on the merits, but also to develop an expertise at certiorari practice. (14) According to Goldstein, understanding what motivates the Justices to accept a case is critical to building a successful Supreme Court practice and helps distinguish him as a leading appellate advocate. (15)

      While Goldstein's founding of his own boutique presents one successful approach to Supreme Court specialization, Mayer Brown offers another, and on a larger scale. This international law firm boasts one of the country's leading appellate litigation departments and views Supreme Court work as "its signature dish." (16) Founded in the mid-1980s, the firm's appellate section includes a "dream team" among whose members are Andrew J. Pincus and several other former members of the Solicitor General's office who, over the course of their careers, have argued almost 200 cases before the Supreme Court. (17) Reflecting the importance firms now place on specialization, Mayer Brown maintains a website devoted exclusively to appellate practice that offers resources ranging from Supreme Court docket reports to recent briefs filed with the Court. (18)

      Finally, Sidley Austin's Carter G. Phillips, one of the earliest to focus his career on Supreme Court work, now stands out as one of the elite circle's most successful members. Phillips's widely known accomplishments (19) underscore his professional success, and confirm the degree to which Supreme Court practice has become dominated by a handful of repeat players.

   2. The Supreme Court Bar and Certiorari Practice

      One significant consequence of the growing specialization in Supreme Court advocacy is, as a study by Kevin McGuire indicates, (20) the fact that certain practitioners seem able to routinely persuade the famously skeptical Justices to accept their clients' cases. Given the overwhelming odds against obtaining certiorari, this may be the most important skill that these advocates possess. (21) Indeed, the McGuire study, which examines data from the late 1970s and early 1980s, found that the presence of experienced counsel at the petition stage played an influential role even then in determining whether the Justices voted to hear a case. (22)

      In explaining his findings, McGuire cites with approval the conviction of experienced Supreme Court advocates that their higher success rates can be attributed to a pair of reasons: the quality and credibility of their petitions. (23) As to the first factor, McGuire posits that experienced Supreme Court litigators generally craft persuasive and well-organized petitions for certiorari, which enjoy improved prospects for success. (24) Moreover, a petition filed by an elite Supreme Court practitioner carries with it a certain aura of credibility, which stems from the advocate's carefully guarded reputation for good judgment. (25) As one veteran attorney explained, "We don't want to put a silly petition up there." (26) Thus, when an expert Supreme Court litigator actually seeks review, the Justices can assume that the issues presented merit their attention. (27)

      In a more recent study, McGuire considers the role that former law clerks play in subsequent private practice before the Court. (28) He maintains that former clerks argue before the Justices more often than other attorneys, and that they influence the outcomes in a relatively high percentage of Supreme Court cases. (29) Apparently, the clerks' earlier behind-the-scenes experience gives them a distinct advantage in later practice before the Court. (30) Although McGuire's study omits consideration of the former clerks' influence at the certiorari stage, (31) it would seem that the same insight that leads to success on the merits in private practice likewise confers advantages when petitioning the Court for review.

      An article examining the effect of amicus curiae briefs at the Supreme Court also offers circumstantial support for the proposition that experience matters when seeking plenary review. (32) The article, which relies on seventy interviews with former Supreme Court clerks, (33) probes whether the identity of an amicus brief's author influences the level of consideration given to it. (34) Notably, eighty-eight percent of the clerks interviewed admitted that they paid more careful attention to amicus briefs written by renowned attorneys. (35) The clerks generally identified about two dozen lawyers, including Carter Phillips, who, by virtue of their reputation, commanded a close read. (36) Like McGuire's findings, these results imply that experienced Supreme Court advocates probably fare better at the certiorari stage than do their less experienced counterparts.

      The practitioners themselves certainly believe that they make a difference. According to one advocate, "Hiring a lawyer at the cert stage who has a reputation at the Supreme Court for playing by the Court's rules is one of the most important things a client can do in terms of getting attention paid to his cert petition." (37) Similarly, a Mayer Brown partner attributes his firm's thriving appellate practice to the "perception that when you are heading to the Supreme Court, you need someone who knows his or her way around." (38) Finally, Phillips notes that he is likely to share a "reasonably similar perspective on a case" with the Justices. (39) His clients concur, with one in particular calling Phillips an "important filter through which we pass all the cases in which there is a potential Supreme Court petition." (40)

      These practitioners' remarkable success confirms the impression that experienced representation makes a difference at the certiorari stage. For instance, the Stanford Law School Supreme Court Litigation Clinic, founded and taught by Goldstein and Stanford professor Pamela Karlan, herself an experienced Supreme Court advocate and former Blackmun clerk, (41) had each of its first four cases granted review by the Court. (42) A partner at Mayer Brown once filed five consecutive successful certiorari petitions. (43) And among the more than fifty cases that Phillips has argued in the Supreme Court are at least seventeen in which he was also responsible for drafting the petitions. (44)

      The cases in which review was granted during the Term studied for this article show continuing success for these elite advocates. Indeed, Mayer Brown attorneys persuaded the Justices to accept several of the firm's cases during the studied Term. (45) Likewise, the Court once granted three of Phillips's petitions within the span of just two weeks. (46) These success rates are especially striking when one considers that in recent Terms, the Supreme Court has granted review in only about four percent of all paid cases filed. (47) Evidently, experienced Supreme Court advocates play a pivotal role at the certiorari stage.

3. BACKGROUND AND CONTEXT: OBTAINING CERTIORARI

   The material in this section provides a brief summary of the certiorari process and some of the recommended methods for achieving success at the petition stage. Although this...