The Competition for Supreme Court Cases

Adam Liptak has an important front-page story in The New York Times about how Supreme Court specialists look for cases to take to the Supreme Court. The story presents a pretty accurate picture of how tough the competition is for cases likely to get to the Supreme Court. These days, if you’re a lawyer who has a case that might get to the Supreme Court, you can expect a lot of calls from some pretty high-powered lawyers offering free help and competing for the opportunity to provide it. I think there are a few different issues raised by the story, however, and it’s important to keep them separate.

1) Who does the best job? In my experience, it is usually true that Supreme Court specialists do a significantly better job presenting issues to the Justices than do the lawyers who had the case at trial. Exceptions exist, of course. But on average, the Supreme Court specialists are much better at getting cert granted; they have a better sense of what arguments will work with the Justices; they see arguments the lawyers from the trial are less likely to see; and they’re usually simply better appellate lawyers. They’re also much cheaper, as they work for free. So on average, the free help offered by Supreme Court specialists is an exceedingly good thing for the clients who are represented.

2) The objection from “cause” lawyers. Some people argue that the problem with Supreme Court specialists offering free help is that the wrong cases can get to the Supreme Court. People who voice this argument generally favor some centralized screening of the cases in an area of law. They only want people to try to bring their case to the Supreme Court if the centralized authority of experts has approved it because it likely will help the cause with a victory rather than hurt it with a defeat. From this perspective, Supreme Court specialists helping for free is indeed problematic: The free help means that individuals can bypass the centralized control and get to the Supreme Court anyway. But whether this argument has force depends on your commitment to cause lawyering for that particular cause.

3) The glory is in the oral argument. One of the problematic aspects of the competition for Supreme Court cases is that the public attention focuses almost exclusively on the oral argument. The press covers oral arguments, not briefs, and lawyers are known for how many arguments they gave rather than how many briefs they wrote. This tends to create an unfortunate dynamic, I think. Supreme Court specialists usually want the argument, and lawyers who had the case below often decide to go it alone (even rejecting free help on the brief) to make absolutely sure they’ll keep the argument. Given that the written briefs are far more important than the oral arguments, that can lead to briefs that are less strong than they could be and cases that aren’t presented to the Justices as well as they should be. I don’t know if it’s possible to change that — everyone knows who made the argument, while it can be harder to figure out who really wrote a brief — but I think it would be better for the law if there were more prestige and attention associated with briefwriting than oral argument.

UPDATE: As for #3, I find it particularly strange when the press celebrates appearances at oral argument of counsel for the Respondent. The press is so focused on the oral argument that stories will make it seem like an accomplishment for the lawyer to get there. Of course, the real accomplishment of counsel for the Respondent in a Supreme Court merits case is that the counsel lost at the cert stage. That’s a strange accomplishment to celebrate.