I. THE UNIQUE ETHICAL DILEMMA OF OPPOSING CERTIORARI II. EVIDENCE OF THE ETHICAL DILEMMA IN OPPOSING CERTIORARI A. Supreme Court Experts Discuss the Conflict 1. Survey: Question One 2. Survey: Questions Two and Three 3. Survey: Question Four B. Analyzing Actual Failed Briefs in Opposition to Certiorari III. THE HARMFUL EFFECTS OF THE ETHICAL DILEMMA IN OPPOSING CERTIORARI A. Harm to the Client B. Harm to the Judiciary IV. POSSIBLE SOLUTIONS TO THE ETHICAL DILEMMA IN OPPOSING CERTIORARI CONCLUSION
Of all the pursuits one might undertake to attain distinction in the American bar, perhaps none is quite so exalted as arguing a case before the Supreme Court of the United States. Kannon Shanmugam, a partner at the D.C. law firm Williams & Connolly, who has argued before the Court eleven times, describes the experience as "exhilarating" and "humbling." (1) Mayer Brown special counsel Charles Rothfeld, who has argued twenty-five cases in the Court, characterizes Supreme Court oral arguments as "extraordinary" and a highly "sought-after commodity," especially given that the Court hears only eighty of so cases each year. (2) Indeed, it might fairly be said that the chance to argue before the Court is so highly esteemed that its value is beyond quantification, opening doors to high-paying opportunities in private practice (3) and offering a unique opportunity to litigate issues of national significance. (4) To stand at the podium in our nation's highest court is to share in a distinction held by giants in our nation's legal history--figures such as Daniel Webster, Robert Jackson, and Thurgood Marshall.
As the Supreme Court's docket grows smaller and an emerging class of "Supreme Court experts" snags a greater portion of that docket with every passing year, (5) the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. (6) Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access--and substantial fees--ride on the success of the petitions for certiorari they file. (7) The Stakes have gotten so high with respect to the Court's decisions on "cert" petitions that the popular website SCOTUSblog now has a regular "petitions to watch" column discussing certiorari petitions with a high chance of being granted (8) and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases. (9)
Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. (10) This Article's core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage might nevertheless enjoy a personal "win" in the form of an opportunity to argue at the Supreme Court; as a result, there is an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all.
An example may serve to highlight the significance of this dilemma. In September 1999, the Court granted certiorari in Weisgram v. Marley Co., a case concerning the circumstances in which an appellate court may properly issue a judgment asa matter of law that effectively reverses the trial court's verdict. …