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
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 entered the field.
The Stanford Clinic has now been up and running for nine years, and it has settled into some regular patterns and practices. In addition, in the years since Stanford's Clinic has matured, several other law schools have launched similar clinics. Some clinics, like Stanford's, are run primarily by law school faculty, with the assistance of outside attorneys. Others, such as Yale's Clinic, are run primarily by an outside law firm (in Yale's case, Mayer Brown), with law school faculty and staff playing a supporting role. Either way, the upshot is that litigants in the Court are now receiving expert representation from a new source: law school faculty and lawyers funded by the law schools, as well as eager and energetic students.
It thus seems an appropriate time to take stock of whether Supreme Court clinics serve a beneficial role in the Supreme Court bar. The clinics, collectively, have argued more than forty cases on the merits and now represent a party in more than one in ten cases on the Court's plenary docket. The cases involve everything from criminal procedure to bankruptcy law to voting rights. And the clinics have represented both petitioners and respondents in significant numbers at the certiorari stage.
What about the results? Thus far, they have been encouraging. I am not privy to other clinics' certiorari-stage statistics, but the Stanford Clinic--which is likely to be at least roughly representative of the others--has enjoyed considerable success in persuading the Court to hear its clients' cases. As of the end of the October 2010 Term, the Stanford Clinic had succeeded in getting certiorari granted in more than 39% of the petitions (20 of 51) it has filed--"almost certainly" a higher percentage "than any practice in the nation except for the solicitor general's office." (24) The clinics also have helped parties defeat certiorari in numerous cases that were serious candidates for review. And against the backdrop of a Court that tends to favor the clinics' most frequent adversaries (businesses in civil cases and the government in criminal and civil rights cases), (25) the clinics have succeeded in winning a majority of their cases that the Court has decided on the merits. (26)
At the same time, the clinics' success (and, to some extent, their mere existence) has given rise to some theoretically and ethically challenging issues. Exactly how should a Supreme Court clinic's "public service" mission be defined? By the identity of clients? By the identity of counsel that would handle the case if the clinic were not involved? By the substantive issues involved in its cases? Of equal importance, once the mission is defined, how exactly should the clinic pursue that mission? Should the clinic, as a recent article suggests, decline assistance in cases it believes might make "bad law"? (27) Should the clinic assist clients in cases even when the cases are pedagogically defective for some reason? To what degree should the clinic consult with, and abide by the wishes of, relevant interest groups?
This Article explores these policy questions and others. The questions do not admit of easy answers. Indeed, this Article sometimes declines to offer definitive answers at all. The point, instead, is to confirm that Supreme Court clinics have become a significant presence in the Supreme Court bar and to begin to grapple with the many opportunities, responsibilities, and ethical dilemmas that follow from this reality. My hope is that this Article will provide a basis for informed thought and debate. The notion of a Supreme Court clinic is still a relatively new one. But the notion has now taken hold at various (mostly elite) law schools. These schools, the students who enroll in these clinics, and outside groups who interact with them ought to have a basis for discussion concerning what these enterprises should be trying to accomplish.
This Article proceeds in three Parts. Part I tests one of the clinics' foundational assumptions--not assessed empirically in any scholarship postdating the emergence of the modern Supreme Court bar--that expertise and resources matter in Supreme Court litigation. Through an empirical analysis of the Court's decisions from October Term 2004 through October Term 2010, this Part confirms that litigants, in the aggregate, have considerably higher odds of success when they have Supreme Court specialists as their counsel. And this difference cannot simply be ascribed to selection bias--that is, the possibility that specialists handle only cases that are inherently easier to win. Even holding all else constant, specialists' clients prevail at significantly higher rates than nonspecialists' clients. Presumably, this comparative advantage is even stronger at the certiorari stage, where expertise comes more directly into play.
Part II discusses the opportunities that these statistical realities create for Supreme Court clinics. Specifically, this Part assesses how clinics can best deploy their resources to serve the public interest. It turns out that there are identifiable categories of traditionally underserved litigants, often represented by inexperienced or resource-strapped counsel, who can benefit from the services of a Supreme Court clinic. This assistance can be important both at the certiorari stage (in terms of identifying cases meriting review that might otherwise never be taken to the Court, and in terms of making arguments for or against granting certiorari) and at the merits stage.
Part III is, in a sense, the flip side of Part II. It considers challenges and potential responsibilities that Supreme Court clinics must confront. All lawyers and law clinics must always put their clients' interests above their own, and Supreme Court clinics are no different. But the forum of the Supreme Court-the allure of handling cases on the merits before that judicial body--can magnify the tension that sometimes resides in that ethical obligation. (28) The power and influence of the Court also raise the stakes of case selection. In particular, a clinic engaged primarily in client-based advocacy (in which the clinics represent individual clients as an end in itself) might accept cases that a clinic following a model of issue-based advocacy (in which each individual case is viewed as a means to the end of pursuing particular policy goals) might shun for fear of making "bad law." Although I think that a Supreme Court clinic might reasonably decide to follow either approach, the Stanford Clinic, for example, has chosen to pursue a client-based model, in which the clinic views itself more as a legal services office than a cause-lawyering enterprise. Accordingly, using the Stanford Clinic (the Supreme Court clinic, of course, with which I am most familiar) as a case study, I close by offering a defense of that model.
I. TESTING THE VALUE OF SUPREME COURT SPECIALIZATION
This Part assesses the extent to which Supreme Court specialization affects outcomes on the merits in Supreme Court cases. This issue is central to the public interest mission of a Supreme Court clinic; unlike the clients of many other law school clinics, most clients of Supreme Court clinics will not go un-represented without a clinic's assistance. Rather, a Supreme Court clinic's claim to be serving the public interest hinges largely on its purported ability to provide markedly superior representation to litigants--enhancing their odds of success by supplying expertise and resources to which the litigants would not otherwise have access.
The empirical assessment that follows focuses on litigation at the "merits stage" of cases rather than the certiorari (or jurisdictional) stage. I restrict the focus in this respect because there are far fewer variables to account for at the merits stage. Most importantly, it would be wildly unrealistic to assume, as a starting presumption, that all certiorari petitions have an equal chance of success and then to measure the success rates of specialists against those of nonspecialists. Especially in the clinical realm, specialists will tend to choose cases in part based on their perceived certworthiness, whereas nonspecialist counsel rarely have that luxury. And even within the realm of superficially similar certiorari petitions (say, the class of cases involving acknowledged conflicts among the federal courts of appeals), the chances that the Supreme Court will grant the petition vary dramatically according to several intangible and discretionary factors.
Within the realm of merits cases, by contrast, it seems reasonable to start from a presumption that, in aggregate, all similarly situated litigants (that is, all criminal defendants and all individual civil plaintiffs) share equal chances of prevailing on the merits. I readily acknowledge the possibility that specialists may screen cases for chance of such success more aggressively than nonspecialists. But for reasons I will elaborate, this possibility does not strike me as so powerful and pervasive as to preclude meaningful empirical analysis.
One final word before proceeding to statistics: it should go without saying that neither the value nor the success of a law school Supreme Court clinic should be measured solely (or even primarily) on the basis of its winning percentage. A clinic is as fundamentally an educational institution as it is a law office. But even with respect to its existence as a law office, that component cannot be measured solely according to substantive outcomes. It is one of the oldest and proudest adages of the bar that there is great nobility in providing counsel to any client--and perhaps especially to clients whose legal arguments may be weak. So even if all of a Supreme Court clinic's certiorari petitions were denied and its clients did no better on the merits than anyone else's clients, there would still be reason to think the clinic was performing a public service. But as it turns out, a comprehensive study of the Court's October 2004 through October 2010 Terms (dating back to the first Term in which the Stanford Clinic handled merits cases before the Court) suggests that the kind of Supreme Court specialization that a clinic can offer does indeed produce better outcomes than average and that expertise is what makes the difference.
In order to determine whether Supreme Court specialization boosts litigants' odds of success on the merits, it is necessary to ask two basic questions. First, how often do litigants represented by specialists prevail compared to other similarly situated litigants? Second, to the extent that litigants represented by specialists prevail more often, are those better outcomes more likely due to Supreme Court expertise (and resources to follow through on that expertise), some other attribute, or merely chance?
In order to explain how I have gone about trying to answer these questions, four preliminary points regarding methodology are in order.
First, in order to make comparisons as accurate as possible, this study focuses only on criminal cases and civil cases that a clinic might reasonably handle consistent with its pro bono mission. Indeed, nearly all of the cases that the Supreme Court clinics have handled on the merits have fallen into one of two categories: criminal cases (including habeas corpus cases) (29) in which clinics have represented the defendant, and civil cases in which clinics have represented the plaintiff. I therefore include all criminal cases in the study, except for white-collar crime and tax cases, where the defendants typically are businesses or individuals with the ability to hire Supreme Court specialists. (30) On the civil side, I have excluded cases in which the plaintiffs were businesses, governmental entities, labor unions, or other organizations--again, because these types of entities typically can pay for top-flight counsel. That leaves a batch of civil cases for comparison in which individual plaintiffs alleged violations of employment discrimination statutes, other employment laws, constitutional and statutory civil rights provisions, consumer protection laws, tort law, maritime law, or human rights statutes or treaties, as well as cases in which plaintiffs sought various kinds of federal benefits, bankruptcy protection, or employee benefits. Finally, I include immigration cases, which, like criminal cases, involve individuals (almost always of limited means) against the federal government.
Second, in order to judge success at the merits, one needs to focus on cases that involved a full-blown merits stage. That leaves out cases where the Court summarily reversed a decision, for such cases lack any merits briefing or oral argument from lawyers. It includes, however, cases in which the Court dismissed the petition as improvidently granted after merits briefing and argument. As I explain in more detail below, (31) such an outcome (commonly known as a "DIG") is unambiguously a win for the respondent, insofar as its effect is to leave intact the decision of the court below, where the respondent prevailed. While a DIG does not create precedent, it is otherwise no different from an affirmance as far as the respondent is concerned.
Third, conforming to conventional measures of success, any decision that upsets the judgment below in any way is considered a victory for the petitioner. If the Court leaves the judgment below entirely in place, it is a victory for the respondent. (32) To be sure, this binary approach is to some degree overly wooden. Even setting broader interests aside and focusing just on clients, some victories are different from others, and some losses are different from others. A victory in the Supreme Court that establishes a legal test that the litigant will have difficulty satisfying on a remand applying it to the facts of the case is not much of a win. As Lazarus explains:
Sometimes ... the mark of distinction for a Supreme Court advocate is being able to recognize that a case is going to be lost before the High Court: a favorable lower court judgment is going to be reversed or an unfavorable one affirmed.... The [lawyer]'s task in such circumstances, which is not all infrequent, is candidly to explain the situation to the client, and to develop a legal strategy for optimizing the possibility of what is often dubbed a "soft landing. (33)"
A soft landing generally leaves open alternative paths to prevailing on remand or in future litigation. Yet it would clearly be difficult, if not impossible, to measure and quantify this kind of success. And it seems safe to assume that lawyers who are able to prevail more often are also more likely to be able to achieve this more subtle kind of success. Accordingly, this empirical analysis measures only technical victories.
Fourth, I have taken the cases in the sample and coded them according to whether the defendant (in criminal cases) or the plaintiff (in civil cases) or the immigrant (1) was the petitioner or the respondent; and (2) was represented by a Supreme Court specialist or not. The second part of this coding obviously gives rise to two more definitional issues: who, exactly, counts as a party's attorney, and who counts as a Supreme Court specialist?
I treat the person who presents oral argument--and only that person--as a party's attorney. The main reason for doing this is that it is impossible to know how involved various other lawyers listed on the cover of a brief might have been in a briefs production. (Indeed, sometimes lawyers not even listed on a brief had more to do with it than those who were listed.) So the only consistent way to code attorney expertise is to focus on counsel who argued the case. (34)
A second reason for focusing on arguing counsel is that he or she is the person most likely to have had control over the case's briefing and strategic decisionmaking. I understand that this is not always the case. Sometimes solo practitioners and other lawyers who argue cases affiliate with Supreme Court specialists for purposes of briefing, allowing the specialists significant (if not total) control over the case's briefing. But in my experience, the attorney who will argue the case usually retains at least veto power in that circumstance-and often the attorney has considerably more to say about how the brief is written. At any rate, there can be no doubt that the attorney who argues a case has the last word with respect to the party's argument. That attorney can reshape the party's argument or even concede points at oral argument. (35)
For purposes of simplicity and consistency, I define a Supreme Court specialist by starting with the bright-line definition for expertise coined by Lazarus: An expert in Supreme Court advocacy, he asserted, is an attorney who, at the time of the argument, "has either him- or herself presented at least five oral arguments before the Court or works with a law firm or other organization with attorneys who in the aggregate have presented a total of at least ten arguments before the Court." (36)
Obviously, specialization is not a perfect proxy for skill or effectiveness. Not all lawyers with five or more Supreme Court arguments are outstanding lawyers. On the other hand, many lawyers with fewer than five arguments can do an outstanding job before the Court. For example, a federal public defender who specializes in appellate advocacy might be just as skilled as a Supreme Court specialist at brief writing and oral argument. Similarly, an exceptional lawyer in a particular field, such as patent law, might do a better job than a Supreme Court specialist in such a case. (Exactly when it is better to proceed with nonspecialist counsel as opposed to other highly skilled counsel is a hotly debated subject, and I do not intend to tackle it here. Instead, the empirical assessment that follows is more designed to test Chief Justice Roberts's question at the beginning of this Article whether litigants generally do just as well in the Supreme Court with expert counsel as with a nonspecialist lawyer who happened to pick up the case at its outset.)
At the same time, specialization, as defined above, is the most objective measure one can imagine for quality of counsel. Many others have already written about the advantages such specialization lends. (37) Thus, suffice it to say here that specialization denotes at least three things. First, specialization reflects familiarity with the forum--both its members and its practices. If one took two equally talented lawyers and had one spend five years handling Supreme Court cases and the other, say, doing trials or administrative proceedings before the FCC, it seems obvious that the first lawyer would have an advantage in the Supreme Court--just as the other would have an advantage in the alternative forum. Second, the Court itself is familiar with specialists. Thus, provided that a specialist has a good reputation (and most do), the Court may be more apt (at least subconsciously) to value his or her assertions than those of a lawyer with whom it is not familiar. Third, once an attorney has presented five arguments in the Court, there are solid grounds for assuming that the lawyer is an exceptionally skilled advocate. There are basically only two ways to argue five or more cases in the Supreme Court: The first is to land a job with the Solicitor General's office. The second is to develop a reputation on one's own for exceptional skill. Neither of these avenues guarantees exceptional abilities, but they tend to be reliable indicators.
B. Relative Success Rates
Ali told, from the October Term 2004 through the October Term 2010, the Court decided a total of 356 cases on the merits that, under the criteria set forth above, are the kinds of cases that clinics typically handle--166 criminal cases, 178 civil cases, and 12 immigration cases. (38) Specialist counsel represented the criminal defendant or civil plaintiff in 43.8% of the cases (58 criminal cases, 91 civil cases, and 7 immigration cases). Within that group, Supreme Court clinics handled 13.2% (47) of the 356 overall cases, (39) while specialists at other kinds of law offices handled 30.6% (109). Nonspecialists represented the party in the remaining 56.2% of the cases. Specialists as a whole represented petitioners more often than respondents in both civil and criminal cases--handling 94 cases for petitioners (41 criminal cases, 47 civil cases, and 6 immigration cases), and 62 cases for respondents (17 criminal cases, 44 civil cases, and 1 immigration case). (40) By contrast, nonspecialists represented respondents more often than petitioners. (41)
In the 356 cases, the Court ruled in favor of the defendant in criminal cases, the plaintiff in civil cases, or the immigrant in immigration cases 39.9% of the time. (42) When specialist counsel represented the criminal defendant, civil plaintiff, or immigrant, that party won 53.2% of the time. When nonspecialist counsel represented such a party, the party won 29.5% of the time.
But those winning percentages alone could be misleading, since the Court tends to rule in favor of petitioners so much more often than respondents, and, as noted below, specialists represent petitioners at comparatively higher rates than nonspecialists. Separating cases according to that variable yields more meaningful numbers: criminal defendants, civil plaintiffs, and immigrants prevailed in 106 (57.6%) of the 184 cases in which they were petitioners and 3 6 (20.9%) of the 172 cases in which they were respondents. These numbers are similar across all three types of cases: criminal defendants prevailed in 52.0% of the cases in which they were petitioners (43) and in 18.8% of the cases in which they were respondents; (44) civil plaintiffs prevailed in 63.9% of the cases in which they were petitioners (45) and in 22.6% of the cases in which they were respondents; (46) and immigrants prevailed in 70.0% of the cases in which they were petitioners (47) and in 0% (0 of 2) cases in which they were respondents.
Figures 1 and 2 show what happens when one reintroduces the variable of specialist counsel into these more refined categories.
[FIGURE 1 OMITTED]
In overall terms, criminal defendants, civil plaintiffs, and immigrants represented by Supreme Court specialists prevailed in 67.0% of the cases in which they were petitioners (49)--61.0% in criminal cases; (50) 70.2% in civil cases; (51) and 83.3% in immigration cases. (52) By contrast, such parties prevailed as petitioners in 47.8% of the cases when represented by nonspecialist counse1 (53)--45.9% in criminal cases; (54) 52.0% in civil cases; (55) and 50.0% in immigration cases. (56)
The story with respect to respondents is much the same.
[FIGURE 2 OMITTED]
Criminal defendants, individual civil plaintiffs, and immigrants prevailed in 32.3% of cases as respondents when represented by specialist counsel (57)-47.1% in criminal cases; (58) 27.3% in civil cases; (59) and 0% (0 of 1) in immigration cases. By contrast, such parties prevailed as respondents in just 14.5% of cases when represented by nonspecialist counsel (60)--5% in criminal cases; (61) 19.4% in civil cases; (62) and 0% (0 of 1) in immigration cases. That translates to an overall 19.2 percentage point difference for petitioners, and a 17.8 percentage point difference for respondents. In terms of relative odds of success, these figures mean that petitioners represented by specialists are roughly 1.4 times more likely to win their cases, and respondents represented by specialists are slightly more than twice as likely to prevail.
Yet these differentials--significant as they are--may understate the impact of specialist counsel, for the statistics look at only one side of the equation. That is, these numbers do not differentiate cases in which opposing parties are represented by specialists from those in which they are represented by nonspecialists. Taking that next step yields even more dramatic figures. If one looks at the 98 cases in the sample in which the opposing party was represented by the Solicitor General's office (an office of specialists at the top of the profession), one sees that specialists won 65.2% of their cases as petitioners, (63) whereas nonspecialists won 43.5% of such cases. (64) Specialists won 57.1% of their cases as respondents, (65) whereas nonspecialists won just 9.1% of such cases. (66) These results, which are relatively consistent across criminal and civil cases, (67) are illustrated in Figure 3.
[FIGURE 3 OMITTED]
All of these statistics regarding the effects of specialists hold true with respect to the subset of specialists working with Supreme Court clinics. The clinics have prevailed in 21 of the 30 cases (70.0%) in which they have represented petitioners. They have prevailed in 6 of the 17 cases (35.3%) in which they have represented respondents. These success rates are slightly higher than those of nonclinical specialists with respect to both petitioners and respondents, but within the margin of error in light of the modest sample size--and well ahead of the percentages for nonspecialists. The clinics also have litigated against the Solicitor General's office in only 17 cases, but the early returns suggest that their success rates in such cases are in line with other specialist counsel--and, again, are substantially better than nonspecialists. (68)
C. Isolating Causes for the Differential
No variable besides specialization in the Court seems to explain these differential rates of success. For starters, as noted above, the types of cases and clients are similar across the board. There is no legal, factual, or procedural characteristic that tends to distinguish cases that specialists handle from those that they do not. But there are two possible explanations for at least some of the success differential between specialists and nonspecialists. First, there might be a problem of selection bias. That is, specialists might be simply choosing to take on, or succeeding in convincing the Court to review, more winnable cases than nonspecialists. Second, and somewhat relatedly, the United States, through the Solicitor General's office, might be supporting the clients of specialists as an amicus more often than those of nonspecialists. (69) Each of these possibilities deserves close consideration.
1. Selection bias
It certainly strikes me as possible that selection bias might explain some of the differential in success that petitioners enjoy. One factor in the Court's certiorari calculus is whether it believes the decision below is erroneous. (70) Thus, Supreme Court specialists seeking out possible certiorari petitions might favor cases they think present strong claims on the merits. (71) Even more important, the specialists might be better than nonspecialists at dressing up cases that are winners on the merits in the garb otherwise necessary to get them in the door of the Court--demonstrating splits of authority in the lower courts and nationwide importance of legal issues. (72) (Of course, this latter possibility would still mean that specialists make a difference, just in a somewhat different way.) Nonspecialists, by contrast, might have a harder time getting the Court's attention in such cases and thus end up litigating a higher percentage of cases for petitioners in which the Court granted certiorari for reasons wholly (or mostly) independent of the merits. It stands to reason that lawyers would have a harder time winning those cases.
At the same time, it is hard to see much, if any, evidence of experts undertaking more winnable cases on behalf of respondents than nonspecialists handle. (73) Even if specialists are more adept at getting certiorari denied for respondents when their clients have weak merits arguments, I don't know of any specialists who turn down (or decide not to offer to help in) cases the Court had decided to hear simply because the specialists think the respondent has a weak argument on the merits. One solo practitioner told me recently that he received eighteen calls offering help within forty-eight hours of the Court granting certiorari in a case that he had won below--a case in which one's initial impression from the certiorari papers would have been that the Court took the case because it was inclined to reverse. (74)
The only area in which it might possibly be true that specialists avoid cases with poor chances of success would be habeas cases in which states obtain certiorari. In this area more than any other, the current Court is willing to grant certiorari to engage in "error correction"--that is, granting certiorari simply to reverse the decision below in a way that will not create any important new precedent or settle any conflict in law. It is possible that specialists see these merits cases as so difficult to win or otherwise substantively undesirable that they do not put the same effort into becoming involved in them as they do in other cases. (75)
Indeed, when one looks at the statistics from the October 2004 Term through the end of October 2010 Term, one sees that nonspecialists handled 23 habeas cases on behalf of respondents. They lost all 23. Expert counsel handled 5 such cases. They lost 4 and won 1. If we were to adjust the success rates for respondents by taking out these habeas cases, we would end up with specialist counsel winning 33.3% of their cases (19 of 57) on behalf of respondents and nonspecialists winning 18.4% (16 of 87).
At any rate, but before jumping to any conclusion that such an adjustment is appropriate, even the one win that specialist counsel achieved for a respondent in a habeas case suggests that specialization makes a difference. The case that the specialist won was Roper v. Weaver, (76) in which the Court dismissed the case as improvidently granted after oral argument. At first blush, a DIG might seem like a fluke. But in reality, it can take great skill and familiarity with the Court's practices and discretionary preferences to obtain a DIG. After all, once the Court reviews the merits briefs and hears oral argument, it has sunk a tremendous amount of its limited resources into the case. All of the Court's momentum is moving toward issuing an opinion in the case. Only by persuading the Court that there is strong cause to abandon all of those efforts can counsel obtain a DIG.
That is what Weaver's counsel (77) achieved in Roper v. Weaver. The Court granted the State of Missouri's petition for certiorari to consider "whether the Court of Appeals' application of the more stringent standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was consistent with our interpretation of that statute." (78) In merits briefing and oral argument, however, Weaver's counsel pointed out for the first time that a procedural glitch in the district court proceedings rendered it questionable whether AEDPA even applied in the case. (79) (Weaver had nonspecialist counsel when he filed his brief in opposition, and those lawyers did not point out this issue.) Weaver's merits counsel also emphasized that Weaver's two codefendants had obtained relief on the constitutional claim he had advanced. Neither of these two things compelled relief in Weaver's favor. But by artfully pressing them both, his counsel was able to persuade the Court, by a 6-3 vote, to "exercise [its] discretion" to dismiss the case and thereby "to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner. (80)
Contrast this outcome with the Court's treatment of Oregon v. Guzek, (81) another death penalty case (although not a habeas case). The Court granted the State's petition for certiorari in that case to consider whether a defendant has a right under the Eighth Amendment to present evidence at sentencing designed to seek mercy on the basis of a "residual doubt" as to the defendant's guilt. (82) During merits briefing, it became apparent that Oregon state law independently allowed Guzek to introduce much, if not all, of the evidence at issue, thereby seemingly rendering the federal issue irrelevant. At oral argument, several of the Court's more liberal members pressed Guzek's counsel as to whether he would simply invoke that state law on remand if he lost in the Court. Apparently not realizing, however, that these were friendly questions designed to create grounds for a DIG (likely the only way Guzek could have avoided a reversal), Guzek's counsel fought the questions, and insisted that he wanted to preserve the right to go further than state law clearly allowed. (83) The Court went on to reach the merits and to unanimously reverse, citing those concessions in oral argument as its basis for declining to dismiss the case. (84)
2. Amicus support from the United States
Support from the United States, a factor well known to affect a party's odds of success, (85) does not seem to explain much, if any, of the differentials in success rates between specialists and nonspecialists. But the reasons why this is so are a bit more complicated.
The Solicitor General's office has filed amicus briefs supporting parties represented by specialists more often than those represented by nonspecialists, and it filed amicus briefs opposing parties represented by nonspecialists more often than those represented by specialists. Specifically, in the sample analyzed here, the Solicitor General's office supported petitioners represented by specialists 46.3% of the time, whereas it supported petitioners represented by nonspecialists only 22.2% of the time. The Solicitor General's office supported respondents represented by specialists 28.6% of the time, whereas it supported respondents represented by nonspecialists 22.6% of the time. On the other hand, the Solicitor General's office opposed petitioners represented by specialists just 24.4% of the time, while it opposed petitioners represented by nonspecialists more frequently--38.9% of the time. The Solicitor General's office was also less likely to oppose respondents represented by specialists (45.2%) than respondents represented by nonspecialists (50.9%).
There are two conclusions one might draw from these numbers. One might deduce that the differing rates in the Solicitor General's involvement, not any difference in the party's counsel, explain the greater success rates that specialist counsel enjoy. Or one might see the differing rates of involvement as still further evidence of the advantages that specialists confer upon their clients. For three reasons, the latter of these interpretations is much more plausible. First, as explained above, specialists win a significantly higher percentage of cases than nonspecialists in cases in which the Solicitor General's participation is held perfectly constant--that is, in cases where the Solicitor General is opposing counsel. (86) The same is true in cases in which the Solicitor General does not participate at all. (87)
Second, a statistical analysis of the civil cases in which the Solicitor General did file amicus briefs indicates that the Solicitor General's higher likelihood of a favorable intervention on behalf of specialist counsel than nonspecialist counsel accounted for only 47.8% of the difference in success rate between specialists and nonspecialists as petitioners and only 30.0% of the difference as respondents. (88)
Third, even those boosts in success rates are likely attributable to differences in counsel. In particular, it stands to reason that, all else being equal, Supreme Court specialists will be more likely than nonspecialists to be able to persuade the Solicitor General to file in support of their clients---or at least to refrain from filing against them. The process of pitching one's position to the Solicitor General's office is much like an appellate proceeding: parties typically send the office a letter (or at least their earlier filings in the case) and have a meeting in which something loosely resembling an oral argument takes place. But the focus of the interaction is as much the government's interests as the merits of the case. Given that Supreme Court specialists are generally alumni of the Solicitor General's office or at least frequently interact with that office, these lawyers will naturally have an advantage in making the necessary kinds of arguments to that office.
In the end, the purpose of this Article is not to pinpoint any statistical "bump" that a litigant receives from a Supreme Court specialist. The only relevant issue is whether litigants receive some significant kind of advantage from having such counsel. My findings that they do are statistically significant. (89) Furthermore, it seems that the difference against those represented by nonspecialists--all else held constant--is somewhere between a 19.2% and a 17.8% (or, perhaps, if these calculations should exclude habeas cases in which states are petitioners, a 14.9% (90) greater chance of success on the merits. The difference when the opposing party is represented by specialists in the Solicitor General's office is even more pronounced. And I think it is safe to say that whatever the precise statistical advantage on the merits is, Supreme Court specialists provide a greater comparative advantage at the certiorari stage, (91) when familiarity with the Court and credibility of counsel is even more important. But there is no readily apparent way to estimate how much bigger the certiorari stage advantage is than the merits stage advantage. There are simply too many variables in the cases and no real way to compare apples to apples.
II. CLINICAL OPPORTUNITIES
The fact that Supreme Court specialists can, and do, affect the outcomes of cases confirms that a Supreme Court clinic can provide a public service by providing expertise and resources to litigants who otherwise have access to neither. Before elaborating on those opportunities, I want to make clear that, except where otherwise noted, I confine myself in this Part and the next to considering the proper role of a Supreme Court clinic in the Supreme Court bar. I recognize that Supreme Court clinics (even those run primarily by law school faculty members instead of lawyers at law firms) share some attributes with private law firm practices that handle cases in the Court on a pro bono basis. But, as I elaborate in Subpart A, the educational mission of a Supreme Court clinic should make it a fundamentally different enterprise than a law firm.
With those educational and pedagogical restrictions in place, Subpart B considers whether a clinic should focus on particular kinds of clients or work. At its best, a clinic can help individual litigants of limited means to get the Court's attention in certiorari petitions and to fend off review when they have won victories below. A clinic can also level the playing field on the merits between individual litigants of limited means and corporate and governmental litigants.
A. Educational Considerations
There are two kinds of educational considerations that inform a Supreme Court clinic's docket: (1) pedagogical considerations and (2) public service considerations.
1. Pedagogical considerations
More than anything, a clinic's mission of teaching law students about the Court and the practice of law imposes significant resource constraints. For example, at full capacity, the Stanford Clinic operates with four instructors (two Stanford faculty members and two "lecturers" who practice law in Washington, D.C. and teach part-time in the clinic) and roughly a dozen students. Given the teaching and editing methods we need to implement with the students and co-counsel, (92) the Clinic has found that the most that it can handle at any given point is about six to ten active cases, while juggling their briefing schedules and, in some instances, awaiting word on whether the Court will hear cases on the merits.
Furthermore, some cases provide better educational opportunities than others. In substantive terms, some areas of law are particularly accessible to law students. All else being equal, students are likely to get more out of a case involving a subject matter they have encountered in law school--criminal procedure or Title VII, for instance--than an arcane area of federal statutory law that they have never come across and that requires specialized experience.
A clinic's educational mission also incentivizes it to have a mixture of cases at any given point across a variety of dimensions. A clinic might try to balance its docket in terms of civil versus criminal cases, as well as constitutional versus statutory cases. It might also try to balance its docket in terms of types of litigants it is representing, achieving a mixture of parties and amici, individuals and (sometimes more sophisticated) institutions, and plaintiffs and defendants. It might also balance its docket in terms of stages of Supreme Court litigation, having some petition-stage cases alongside merits-stage cases. (In fact, I think it is especially worthwhile for clinics to represent respondents at the certiorari stage, so they can teach the lesson to law students eager to appear before the Supreme Court that sometimes the best thing you can do for your clients is to keep their cases out of the Court.)
Finally, a clinic might try to balance its docket in terms of co-counsel arrangements. Sometimes clinics work with appointed counsel who are eager to turn cases over to them. Other times, clinics work with lawyers (such as public defenders in criminal cases (93) or voting rights experts in civil cases (94)) who are experts in the substantive fields at issue but not in Supreme Court litigation. The students benefit from interacting with different kinds of co-counsel. Indeed, working with solo practitioners or small firms often gives students a window into a style of practice to which they have not been directly exposed through on-campus interviews or programs, or their summer jobs.
2. Public service considerations
On the public service side of the ledger, a clinic's initial consideration will presumably be whether a potential client could afford to hire a Supreme Court specialist. The situation in which a litigant could not do so arises more often than someone unfamiliar with the Court might think. A substantial percentage (more than half) of the Court's cases involve an individual person or persons on at least one side of the case. And individuals typically lack the hundreds of thousands of dollars necessary to hire Supreme Court counsel. Indeed, many of the individuals whose cases go to the Supreme Court are indigent (especially criminal defendants) or people of very modest means (especially plaintiffs in employment cases and civil rights cases). Organizational litigants, such as nonprofit institutions and municipalities, also often lack the means to hire specialized Supreme Court counsel.
Not only do individual litigants who wind up in the Supreme Court rarely have the means to hire Supreme Court specialists, but litigants who end up in the Supreme Court hardly ever start their cases--or even prosecute their intermediate appeals--with appointed or contingency-fee counsel who have experience in Supreme Court litigation. Supreme Court litigation (especially on the merits) happens rarely enough that it is highly unlikely that a typical criminal defense attorney or plaintiff's lawyer has ever done it, much less accumulated the kind of experience that comes from handling several cases in a given forum. Furthermore, there is no real way of identifying likely Supreme Court cases at the trial or appellate level, in order to preassign them to lawyers with Supreme Court experience. This is because there is rarely any real way to predict in advance which of the thousands of plausible lower court cases each year will become viable Supreme Court cases. A typical case on the Court's merits docket is certworthy, by its very nature, precisely because it raises a frequently recurring issue of federal law in a run-of-the-mill factual setting. (95) Even with respect to cases that one can say at the trial level contain a certworthy legal issue, it generally is a crapshoot which ones will eventually present themselves suitably for Supreme Court review: Many cases settle. They get resolved on different or alternative grounds. They get bogged down in collateral litigation. Juries return surprise verdicts. The list of things that can happen is as long as the Rules of Civil Procedure. (96)
The lack of available specialist counsel is particularly acute in cases in which an individual sues a corporation. While law firms with Supreme Court practices are increasingly willing to handle cases on behalf of individuals against governmental entities on a pro bono basis, such law firms typically are unwilling to challenge the interests of corporations. That means that plaintiffs in employment and tort cases, in particular, often lack any access whatsoever to experienced Supreme Court counsel. (97)
In light of this reality, one might argue that a clinic should focus its resources exclusively upon these kinds of cases. I think a clinic might well decide to do so, not only for reasons related to access to counsel, but also--as I discuss more fully below--as one possible way of focusing on a particular subject matter in order to deliver targeted, substantive expertise to clients. (98)
At the same time, there are compelling reasons why a clinic might decide that its public service mission warrants handling other kinds of cases as well. First, while law firms are often willing to take on merits cases involving criminal law or civil rights, they are not necessarily so eager to take on such work at the certiorari stage, where the marketing and publicity benefits of such work are more speculative. Accordingly, a clinic can serve an important role by working on such cases at the certiorari stage--and in order to fill that role, it may often need to promise to handle the case at the merits stage as well. Even if such a promise is not necessary, it often will be best for the client if the same office represents her on the merits as handled the case at the certiorari stage. Second, clinics, unlike law firms, do not have to find ways to balance billable work with pro bono Supreme Court work. When paying clients demand the time of Supreme Court specialists and their associates, it may be tempting to put less time into a low-profile pro bono case at the Court. Finally, a clinic that regularly handles criminal defense and civil rights cases will probably develop substantial expertise (at the instructor level) in those areas, whereas most lawyers in law firms (even Supreme Court specialists) handle primarily business law cases.
There also is a strong educational argument for a clinic to work not only on cases against corporations but also criminal and civil rights cases against governmental entities. A Supreme Court clinic, unlike many other kinds of clinics, gives rise to the opportunity for deep study and reflection on a particular court--indeed, a particularly important court. And that study is bound to be richer insofar as it is grounded in a diverse array of cases. Among other things, the Court approaches statutory cases differently than constitutional cases, and it sometimes treats private litigants differently from public litigants. The only way for students to appreciate and understand these differences firsthand is for a clinic to handle some cases in each of these camps.
B. Operational Considerations
Broadly speaking, clinics have opportunities to deliver three kinds of assistance to pro bono clients in Supreme Court litigation: (1) expertise concerning litigating in the Court; (2) deep resources to commit to the case; and (3) expertise concerning the substantive law at issue in any given case. Some of the ways in which clinics can deliver these "goods" are fairly obvious and intuitive. But it is worth spelling out exactly how a clinic's bundle of offerings can level the playing field between an individual litigant and a governmental or corporate entity represented by Supreme Court specialists. Only after that opportunity is set forth can one explore the more nuanced issues surrounding the existence of such clinics.
1. Expertise concerning the Court
A clinic's expertise can help litigants in terms of (a) seeking certiorari; (b) defeating certiorari; and (c) winning on the merits.
a. Seeking certiorari
The certiorari process suffers from what Tom Goldstein has called a "market failure" (99)--or at least a "market inefficiency." The Court, which might be thought of as the consumer of certiorari petitions, generally wants a certain kind of product: cases presenting important questions of federal law over which state or lower federal courts are confused or divided. (100) The Court selects such cases for review so that it can provide guidance to lower courts concerning what the law is and how it should work. Yet the Court's desires do not typically correlate with the interests of litigants, the suppliers of certiorari petitions. Generally speaking, litigants--especially individual litigants who are not repeat players in the judicial system--simply want to win their cases. Criminal defendants want their convictions reversed. Civil plaintiffs want their jury verdicts reinstated, or they want summary judgments or dismissals reversed. And SO on.
Sometimes parties wishing to take a case to the Court can accommodate these competing objectives. Such parties can hire lawyers who, after copious research beyond the four corners of the case, package the clients' petitions for certiorari (as best as they can) in terms of the Court's concerns and goals. Petitions carefully select one or two issues from the case; explain why the issues are important; describe confusion or conflict, or at least a misguided approach, regarding the issues in the lower courts; and explain why the case is an excellent vehicle for bringing order to the law and giving guidance to lower courts.
But sometimes the cross-purposes of the Court and litigants generate a situation in which a certiorari petition is not filed in a case that the Court would nonetheless choose to hear. I'm not talking here about cases that litigants self-consciously decide not to pursue in the Court for fear of generating bad law. (I will address that general subject below.) (101) Rather, I am talking about two kinds of more basic market failures, which can happen separately or simultaneously.
First, a client (and his attorney) might not know that his case has characteristics that make it a strong candidate for certiorari. Many of the lower court opinions the Court decides to review do not say that their holdings implicate any split of authority, even though they in fact do. (102) Usually, particularly in state court practice, this is because the parties fail to advise the appellate court that other courts have addressed the legal question at issue, and the courts themselves never learn otherwise. Or an appellate court may already have binding precedent on the issue and simply cite that. Furthermore, even when a court issues an opinion that--based on briefing from the parties or not--acknowledges it implicates an important issue over which courts are confused, clients and their lawyers sometimes still do not know that their case is a potentially strong candidate for certiorari. All they may know, instead, is that the Court accepts only about one out of one hundred cases. (103) So they might just assume, totally understandably, that a run-of-the-mill case between an individual and a government or corporation would not meet the Court's criteria.
A Supreme Court clinic can mitigate this informational inefficiency. First, a clinic should have the expertise and resources to identify cases that are certworthy but in which local counsel has no plans to, or is unsure whether to, seek certiorari. A clinic can then reach out to local counsel and clients, advise them of the case's potential importance, and offer assistance in preparing and filing a certiorari petition. Indeed, in several cases in which the Stanford Clinic has obtained certiorari, the Clinic was able to file certiorari petitions on behalf of clients whose attorneys were not planning to seek review in the Supreme Court. (104)
Equally important, a clinic's expertise and reputation should enable it to obtain certiorari in cases that nonspecialist attorneys, even though already committed to seeking certiorari, could not get through the door to the Supreme Court. Given the highly specialized nature of certiorari practice, a clinic can deploy its expertise in framing a case to simultaneously maximize the chances that the Court will decide to review it and the chances that the client will ultimately prevail. Indeed, to the extent that the Court knows that a clinic screens cases at least to some degree for their certworthiness, the clinic might be able to boost the litigant's chances of certiorari simply by appearing in the case. One reason the Solicitor General's office enjoys such a high rate of success in its certiorari practice is because the Court knows that it generally refuses to file a certiorari petition unless it genuinely believes that certiorari should be granted. (105) A clinic might decide to adopt a similar rule, at least to the extent that it is willing to file certiorari petitions only in cases in which a substantial case can be made for certiorari. If the Court begins to see a pattern in this respect, the clinic's success should beget further success. (106)…