Academic journal article Journal of Appellate Practice and Process

Experience Matters: The Rise of a Supreme Court Bar and Its Effect on Certiorari

Academic journal article Journal of Appellate Practice and Process

Experience Matters: The Rise of a Supreme Court Bar and Its Effect on Certiorari

Article excerpt

I. 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.

II. THE MODERN SUPREME COURT BAR

A. 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. …

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