Advocacy Matters

This article originated in some research I was doing on the dismal record of environmentalists in Supreme Court cases involving the National Environmental Policy Act. Not only have environmentalists failed to persuade the Court to grant a single petition (in more than 150 tries), but on the 14 (depending how one counts certain cases) occasions when their opponents have obtained plenary Supreme Court review, the environmentalists have lost all 14 times. In fact, they have not received a vote of even one Justice since 1976 in Kleppe v. Sierra Club.

What I discovered in examining all the papers filed in those approximately 200 cases (including jurisdictional and merits briefs, the private archival papers of Douglas, Marshall, Powell, and Blackmun (bench memos, pool memo, inter-chamber correspondence) was that the environmentalists’ unenviable record was largely the product of two things: (1) They had been systematically outlitigated by the other side’s (primarily the Solicitor General’s Office) better advocacy at both the jurisdictional stage and on the merits; and (2) Those within the Court favoring a narrower view of NEPA (esp. Rehnquist) were far more effective advocates for their position during the drafting of opinions than those who might have been receptive to a more expansive view of the law.

The contrast was so striking upon close examination that I decided about 18 months ago to switch gears and consider the related implications for the Court of the emergence in the past twenty years of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. The article, accordingly, strives to describe and explain the rise of a modern Supreme Court Bar and then to explore both theoretically and empirically its significance. By “significance” in this context, I do not mean just significance for the legal profession, which is of course interesting, but its significance for the Court: both the Court’s plenary docket and its rulings on the merits.

Going in I had a good sense of the extent of the Bar’s expansion, largely based from my vantage point of directing the Supreme Court Institute at Georgetown, but what I had less of a handle on was both how they had maintained that increase during a time when the Court’s plenary docket was otherwise dramatically shrinking and the corresponding extent to which the experts were dominating the docket at both the jurisdictional and merits stages. The increase is quite dramatic both in terms of cases granted review (the hardest thing a Supreme Court advocate does), oral arguments presented, and, I further posit, their impact on the Court’s formal judgment and the substantive content of the opinions. I further contend that the private Supreme Court Bar has become so effective that they have not only overcome the dominant advocacy role that the Office of Solicitor General enjoyed before the Court for much of the 20th century, but in many instances surpassed it.

In certain respects, the conclusions themselves should not be especially startling. After all, the ability of these expert advocates is obvious to anyone who follows the Court’s docket closely, as are the inevitable limits faced by the Justices and the clerks in deciding cases, especially at the cert stage. There is tremendous potential within any case to pitch a case different ways to the Court and the way that a case is pitched and the depth of the accompanying legal analysis often determines how the Court views and frames the case before it. This is a real skill, like other kinds of skills.

Nor should it be so surprising that the private bar is successfully challenging the SG’s dominant position. The private bar consists, of course, largely of alums of the SG’s Office who, as a result, are frequently more experienced advocates than the OSG attorneys themselves and, when backed by paying clients, have more time to spend on the cases.

For some, perhaps the most controversial part of my article is when I take the next step and contend that the success recently enjoyed by the business community before the Court is likely a reflection of the effectiveness of the newly-emerged Supreme Court Bar that represents that community. Here too, I think the theoretical (most simply stated, you get what you pay for) and empirical support (e.g., antitrust cases) for this position are quite powerful. And, while I am sure that some private sector folks will pooh-pah their success either out of false modesty or for strategic reasons, I doubt that is what they are saying to their private sector clients at the time they are seeking to be retained for work before the Court. My only point is that when those lawyers are telling their clients that they are indeed effective, they are telling the truth. And, they are in fact worth what they are paid.

On the whole, better Supreme Court advocacy is a good thing for the Court and for the development of the law, with an important caveat. What also emerges from my analysis is a significant concern that, notwithstanding the pro bono work that many of these private sector attorneys conduct (including in increasing coordinate with law school “Supreme Court Clinics”), there is a real risk of a skewing of the Court’s docket and the rulings on the merits in favor of those who can pay top dollar for these advocates.

Most of the significant pro bono work is done only after the Court has granted review, which limits its ultimate effectiveness. And there is a distinct group of significant cases related to business liability in which the private sector bar has generally been unwilling to support those favoring expansive theories of liability, whether antitrust, securities, environmental protection, or tort in nature. There is not necessarily any strict professional conflict, just a desire not to fall in disfavor with potential business clients who pay top dollar. The article concludes by recommending several initiatives that both the Bar and the Court could undertake to begin to close the otherwise increasing advocacy gap.