The Expansion of the “Supreme Court Bar”
It has seemed to me for some time that a specialized Supreme Court bar has been rapidly emerging. I recently set out to confirm (or refute) that impression. I considered two measures – the emergence of specialized practice groups in law firms and the shift in oral arguments from the attorneys who handled the case in the lower courts to Supreme Court specialists – and compared the status quo with six years ago, which is when I started this firm. (I also consulted with Roy Englert, who is one of the leaders of the bar and provided very helpful advice, as did David Frederick and other people with a great deal of experience in the area.) I found the results pretty dramatic. I apologize in advance for the excessively long post — likely the longest in the history of the blog. In addition, I’ll follow up tomorrow with a post on the conclusions that I reached that will lead to a very substantial change in my own practice and that of Goldstein & Howe.
The Development of Specialized Supreme Court Practices
I started this firm in the fall of 1999. At that time, there were nine firms with established Supreme Court practices (when one or two lawyers are the obvious leaders of a practice, I identify them in parentheses): Covington & Burling, Farr & Taranto, Gibson Dunn (Ted Olson), Hogan & Hartson (John Roberts), Jenner & Block (Bruce Ennis), Jones Day (Tim Dyk), Kirkland & Ellis (Ken Starr), Mayer Brown, and Sidley & Austin (Carter Phillips). (Of these, Covington arguably does not have a distinct “practice,” but it does appear regularly in the Court and has been trying recently to raise its profile there.)
Since that time, several of these nine Supreme Court practices have undergone substantial transitions. Two – Kirkland and Hogan – have scrambled somewhat to remain as active as they had been before, respectively, now-Chief Justice Roberts (and some others) left Hogan and Dean Starr took on a reduced “Counsel” role at Kirkland. At Jenner, Bruce Ennis passed away. At Jones Day, Tim Dyk and Jeff Sutton became federal appellate judges. At Gibson Dunn, Ted Olson left to become Solicitor General. Several mid-level appellate partners left Mayer Brown to create Robbins Russell.
Each of those firms, however, has made moves to maintain a Supreme Court practice despite losing key personnel. Chris Landau of Kirkland & Ellis is attempting to step up a level and argued a case in the Court this Term. After returning to Hogan from the SG’s Office, Greg Garre argued 3 cases in the span of just about a year before becoming Principal Deputy at the SG’s Office; he presumably will return at the end of his tenure in the government. Jonathan Franklin of Hogan – who remains at the firm – also has done several arguments since Chief Justice Roberts left. At Jenner, former Supreme Court clerks Don Verrilli and Paul Smith have had many arguments – some of them very high-profile, including some major successes – since Bruce Ennis passed away. Jones Day had 6 arguments by 5 lawyers last Term, with Glen Nager and Don Ayer especially active on a repeat basis. At Gibson Dunn, Miguel Estrada became more prominent in Ted Olson’s absence, and – particularly with Olson’s return – that practice will now likely generate a very large amount of business. Mayer Brown, which always relied on a “deep bench,” has had many arguments by many different lawyers since the Robbins Russell partners left, with (for example) Ken Geller arguing 3 cases in one recent Term and Andy Frey, Andy Pincus, Brett Busby, and David Gossett slated to argue in the current Term.
In roughly the 6 years since 1999, an extraordinary 15 additional firms have attempted to establish a Supreme Court practice, a dramatic expansion in a short time, particularly given that there were only 9 firm-based practices previously. Some of these efforts are quite sustained: Goldstein & Howe (me), Kellogg Huber (David Frederick), Latham & Watkins (Maureen Mahoney), Morrison & Foerster (Drew Days & Beth Brinkmann), O’Melveny & Myers (Walter Dellinger), Robbins Russell, and Wilmer Cutler (Seth Waxman). Several of these firms have added to their expertise by hiring former Assistants to the Solicitor General – e.g., Kellogg Huber (Austin Schlick), O’Melveny & Myers (Matt Roberts, who subsequently returned to the SG’s office), and Wilmer (Ed DuMont and Paul Wolfson).
Other new practices are nascent but show every indication that they will be sustained and successful: Baker Botts (Jeff Lamken), Quinn Emanuel (Kathleen Sullivan), and Winston & Strawn (Gene Schaerr).
Still others are based on the practices of individual partners who are generally quite young and sometimes specialize in particular subject areas: Bingham McCutchen (Eric Brunstad [bankruptcy]), Davis Wright (Jeff Fisher [criminal law]), Sutherland Asbill (Kent Jones [tax] and Teresa Roseborough), Weil Gotshal (Greg Coleman); and Peter Stris, who previously was with a small boutique.
Of the 24 firms that now have Supreme Court practices, almost two-thirds (17) are full-service, national firms. Several of the others are mid-size firms with very substantial litigation practices (Kellogg Huber and Quinn Emanuel) or boutiques (Farr & Taranto, us, and Robbins Russell).
Twelve of the 17 large firms – including 7 of the 15 new practices – are (according to the “Am Law 100″ measure of gross revenues) among the nation’s 50 largest firms: all but Covington & Burling, Bingham McCutchen, Davis Wright, Sutherland Asbill, and Jenner & Block. Ten of the 17 are headquartered in one of three cities: Chicago, Los Angeles, and Washington, DC. The Supreme Court practices that are not based on individual young partners are all centered in D.C. with the arguable exception of only Mayer Brown (which has so many lawyers in the practice that there arguably is no single geographic “center”).
There is one startling gap in the major firms with Supreme Court practices: none of the New York-based litigation powerhouses has one – e.g., in order of decreasing size, Skadden, Shearman & Sterling, Sullivan & Cromwell, Davis Polk, Simpson Thacher, Paul Weiss, and Cravath. (Weil Gotshal is the largest New York-based firm with a practice, but that practice is nascent and not centered in New York, and the firm is not best known for litigation.)
The firms’ methods for starting a Supreme Court practice have generally been pretty similar. Of the original group of 9 firms, 5 originally built the practice around senior attorneys from the Solicitor General’s Office, either Deputies or the Solicitor General himself: Hogan & Hartson (John Roberts), Jones Day (Erwin Griswold and Don Ayer), Kirkland & Ellis (Ken Starr), Mayer Brown (Andy Frey, Ken Geller, Steve Shapiro, Philip Lacovara, and the late Bob Stern), and Sidley & Austin (the late Rex Lee).
Three of the original practices were developed around attorneys with strong reputations as general appellate advocates – Farr & Taranto, Gibson Dunn (Ted Olson), and Jenner & Block (Bruce Ennis).
Of the newer group of 14 firms, 8 have turned to attorneys from the Solicitor General’s Office, often former Assistants rather than former Deputies or SGs (who are harder to come by because there are so few): Baker Botts (Jeff Lamken, Ass’t); Kellogg Huber (David Frederick, Ass’t); Latham & Watkins (Maureen Mahoney, Dep.); Morrison & Foerster (Drew Days, SG & Beth Brinkmann, Ass’t); Sutherland Asbill (Kent Jones, Ass’t); O’Melveny & Myers (Walter Dellinger, Acting SG); Robbins Russell (Larry Robbins & Roy Englert, Ass’ts); Wilmer Cutler (Seth Waxman, SG). Another example is that former Assistant Mark Levy heads Kilpatrick Stockton’s appellate practice, which participates regularly in cases before the Court.
The last of the original practices, Covington, defies easy categorization, but it can claim both lawyers with top-notch appellate reputations (such as Ed Bruce) and also former Assistants to the Solicitor General (such as Bob Long and Carolyn Corwin), as well as attorneys such as David Remes who have a longstanding interest in the Court.
The remaining firms have adopted different approaches, although almost all have turned to former Supreme Court law clerks. At Davis Wright, Jeff Fisher (a former Stevens clerk) has developed a practice involving criminal constitutional law. At Weil Gotshal, Greg Coleman (a former Thomas clerk and former Texas SG) has a commercial practice. Winston & Strawn hired Gene Schaerr, a former Sidley partner (and Burger clerk) who has represented several states, particular in federalism-related cases.
Quinn Emanuel went the law professor route, hiring Kathleen Sullivan (a leading constitutional scholar) as Of Counsel (and also recruited Dan Bromberg away from Jones Day’s practice). Bingham McCutchen’s bankruptcy expert Eric Brunstad similarly teaches at Yale.
On that point, it bears mentioning that there are other academics who practice in front of the Court without being associated with firms. The most prominent is Larry Tribe (Harvard). Pam Karlan (Stanford) runs the Stanford Supreme Court Litigation Clinic with us. Recently, Erwin Chemerinsky (Duke) has had several arguments. Eric Schnapper (Univ. of Washington) is involved in an array of civil rights cases. Sam Bagenstos (Washington Univ.) has been involved in a number of disability and federalism cases recently. David Strauss (Chicago, and a former Assistant to the SG) litigates in the Court occasionally. Michael Gottesman (Georgetown) has argued more than a dozen cases, although not many recently. Also at Georgetown, Richard Lazarus and Nina Pillard (both former Assistants to the SG) argue occasionally, and Steve Goldblatt has argued five times. David Moran of Wayne State has argued 4 cases in the past 3 years.
Another class of repeat players is public interest organizations. For example, Public Citizen had 3 lawyers argue in the first 3 months of this Term, and 1 of their cases (Garcetti) will be reargued. Other groups include the ACLU, American Center for Law and Justice (Jay Sekulow), Institute for Justice (Clint Bolick), and Trial Lawyers for Public Justice.
The Shift in Oral Arguments to Experienced Practitioners
In my study of the growth of Supreme Court practices, I also looked at the experience of the oral advocates at the Court, comparing the start of this Term with the start of the first full Term Goldstein & Howe existed, the 1999 Term.
The two data sets seem comparable and illustrative. This Term, in the first 3 sittings, 31 cases were argued, resulting in 76 argument opportunities (i.e., by counsel for the parties and amici); the U.S. Solicitor General’s Office argued 22 times and counsel for states argued 11 times. In the 1999 Term, in the first 3 sittings, 33 cases were argued, resulting in 82 argument opportunities; the SG’s Office argued 23 times and counsel for states argued 13 times.
The distribution of the arguments by private counsel between the first 3 sittings of the two terms was dramatically different, however. In the 1999 Term, of the 46 arguments by private counsel, only 8 were by lawyers associated with Supreme Court practice groups (or otherwise repeat players); 38 were by other counsel. By contrast, in the 2005 Term, of the 44 arguments by private counsel in the first three sittings, 23 were by lawyers associated with Supreme Court practice groups (or otherwise repeat players), 3 times as many as the 1999 Term; 21 were by other counsel.
The shift in the depth and breadth of experience of the private counsel was even more dramatic. In the 1999 Term, in the first 3 sittings, 6 private lawyers appeared who had previously argued at least twice before, 4 of whom had argued at least 5 times. (A side note: of those 4, only Ted Olson remains in private practice; the others were Bruce Ennis (now deceased), Michael McConnell (now a federal appellate judge), and John Roberts (now Chief Justice).) In the 2005 Term, 14 private lawyers in the first 3 sittings had argued at least twice and 9 at least 5 times.
Another comparison is the number of head-to-head match-ups. In the first 3 sittings of the 1999 Term, there was only 1 case in which private lawyers with Supreme Court experience argued against each other: Rice v. Cayetano, which was argued by Ted Olson and John Roberts. In the same period of the 2005 Term, there were 6.
Conclusion
The data shows an explosion in both the number of Supreme Court practices and the proportion of private-party arguments conducted by repeat players. How the “Supreme Court bar” develops from this point is difficult to predict. A very few lawyers and practices currently dominate the cases that generate large revenues – Carter Phillips, Seth Waxman, and Mayer Brown, with Ted Olson almost certain to join that list over the next year – so competitive opportunities likely exist. Even with the Court’s reduced docket, there are roughly 100 private-party arguments each Term, which still leaves a significant number of slots for specialists. Much will depend on the various firms’ commitment to maintaining and expanding their practices, and on the individual lawyers’ ability and interest to devoting their attention to the Court.
Thank you. I found your post very interesting.
Comment by Lionel Hutz — March 2, 2006 @ 1:35 pm
I wonder whether there are similar trends in the lower appellate courts.
In the Federal Circuit Courts, are more arguments and cases being handled by appellate specialists rather than the attorneys who handled the case at the trial level? Or what about State Supreme Courts?
Comment by Michael Yuri — March 2, 2006 @ 2:39 pm
While I accept, in general terms, the value of Supreme Court specialists (the same way that appellate specialists may in general know somewhat more about appellate practice than trial lawyers prosecuting their own appeals), it seems to me that a lot of this “specialization” involves selling clients on some very questionable premises, such as that the Justices are more likely to listen to former clerks, or that people who argue a lot of cases are going to establish a rapport with the Justices that will help them obtain better results in cases.
Plus, there’s a real downside to all this– I think it is probably the dream of every lawyer to argue a case before the Supreme Court. Having Supreme Court argumentation in private-party cases belong, more and more, to a “club” of lawyers who get to do it over and over again has a highly exclusionary aspect to it; many perfectly good lawyers who lay the groundwork for their cases to go the Supreme Court will never get the experience of arguing them there, all so that some member of the club gets to argue his 35th case there.
Comment by D.E. — March 2, 2006 @ 2:44 pm
It may well be the dream of every lawyer to argue a case before the Supreme Court. But a lawyer shouldn’t be there to satisfy a lifelong fantasy, but because he’s in the best position to serve as as an effective advocate for his client.
The premise of a Supreme Court specialist practice is presumably the same as that of any speciality. Someone who focuses on a particular field of law is likely to develop expertise that generalists don’t have. It’s the same reason why we have divorce lawyers, criminal defense lawyers, estate lawyers, intellectual property lawyers, and so forth.
Comment by Marc Shepherd — March 2, 2006 @ 3:20 pm
I thank Tom for that thoughtful post and echo whole-heartedly many of the comments made by D.E. Young litigators–I’m one and am surrounded by many others–often aspire to argue before prestigious courts of appeals and before the Supreme Court. But if a prerequisite to doing has become a degree from an elite law school, clerkships with certain appellate judges and then with a Supreme Court justice, a stint at the S.G.’s office, and a period spent at one of the firms that Tom has listed, the immense majority of even the most capable lawyers will be excluded from practice before the Supreme Court.
Maybe it’s even a salutary step that a Supreme Court bar has returned. Tom’s post tomorrow might address the pros and cons of his findings. Nevertheless, I’m not yet convinced. The last thing that Washington, D.C. needs is another elite, insular group fighting it out among its members for the cream of the legal crop and the power and prestige that come with such success.
Comment by LegalThoughts — March 2, 2006 @ 3:39 pm
Both D.E. and Mr. Shepherd make excellent points. An attorney should have detailed knowledge of his or her client as well as the facts and law at issue in the case. The attorney should know that he or she is the best person to represent the client before the Supreme court and be willing to seek out help to become the most prepared person. However, I do not subscribe to the belief that the best person is always an attorney from a large D.C. or NYC law firm who claims to be a “Supreme Court specialist.” We do a great disservice to members of the bar and to litigants before the Supreme Court by claiming that they have to hire (most often) an out-of-state attorney and spend thousands upon thousands of dollars in order to be successfully represented before the U.S. Supreme Court. I had the honor of arguing a case before the U.S. Supreme Court – having never argued an appellate case. It wasn’t easy. I lived the case from the moment the petition was filed until the oral argument. My client won
9-0 for the low low price of my public servant salary. It was the best (and most cost efficient) decision for my client.
Comment by Novice — March 2, 2006 @ 3:52 pm
The Federal Government’s own practice belies the contention that specialization does not offer distinct advantages. The Solicitor General’s office has an unprecedented success rate before the Supreme Court, and yet, it typically waits until the petition stage to get involved with a case.
It is important to recognize that Supreme Court practice is inherently different than any other practice — trial or intermediate appellate. The Supreme Court is not bound by precedent to the same extent as the lower courts (except for its own conceptions of stare decisis). And given the Court’s criteria for selecting cases — i.e., resolving circuit splits and conflicting interpretations of federal law — the arguments are likely to turn on conflicting legal standards, not one’s mastery of the record.
That is not to say that a generalist cannot prevail at the Court. Nor do I wish to imply that generalists are incapable of outperforming seasoned Supreme Court litigators. The Supreme Court (Marble Temple aside) is still a court. And the skills of lawyering are translate quite readily across multiple fora. With these qualifications in mind, however, I think there is ample support for specialization.
Comment by Lionel Hutz — March 2, 2006 @ 5:06 pm
A “Supreme Court specialist” actually seems to be more of a general practitioner as they must gain mastery of different areas of the law — one day arguing a criminal case and the next possibly bankruptcy or tax.
Their specialty I think matters less at oral argument and more at actually getting the Supreme Court to hear the case. And possibly, in close cases, figuring out whose vote is in play (John Roberts apparently was very good at this latter task).
Comment by Hirbod — March 2, 2006 @ 5:38 pm
I’m inclined to think that the focus on oral argument in this analysis is misplaced (although it obviously reduces the data set to a manageable level).
The real art of U.S. Supeme Court practice, so far as I can tell, is getting petitons for certiorari granted. With under 90 argued cases every year and over 5,000 petitions, this is clearly the greatest hurdle, particularly if you don’t have the good fortune of being in the U.S. Solicitor General’s office.
The next most important matter, it would seem, is excellent brief writing (in which case one would want to look at who is signing the briefs, as oppose to arguing).
Oral argument is, arguably, less important in the U.S. Supreme Court than in any other appellate court in the nation, even though it is more dramatic. No other court of which I am aware hears fewer arguments on the merits each year. Very few courts have anything approaching the talented ranks of clerks found in the U.S. Supreme Court to do whatever grunt work needs to be done and dig beyond the party’s claims in their briefs, and likewise, few courts have the privilege of receiving briefs of the quality that is the norm in Supreme Court practice.
As analysis of Supreme Court practice using political models and using analysis of questioning at oral arguments indicates, most justices are strongly leaning one way or the other by the time oral arguments are conducted. And examples of rather shoddy performances at oral argument (the state’s attorney in the recent Oregon assisted suicide drug case comes to mind) that do not prevent its advocates from losing their cases again affirms this general tendency.
Comment by ohwilleke — March 2, 2006 @ 5:48 pm
Marc:
I agree with you that if specialization actually benefits clients significantly, that’s more important that allowing non-elite lawyers to realize their dream of arguing before the Court. But I am not convinced that such specialization does benefit clients significantly; my bet is it probably confers a marginal benefit, based on the same grounds that appellate specialization does, i.e., you get someone whose view of the record is not based on trying the case, and who has a greater understanding of the sorts of arguments that can win or lose before the Court. But the “sales pitch” of the firms that do a lot of Supreme Court practice– i.e., that you have a better chance of winning when your case is argued by a former clerk who appears before the justices all the time– seems quite questionable to me. Further, Novice’s point is correct to– it probably costs more, especially if one doesn’t live in New York or Washington, to hire a Supreme Court specialist.
I also think ohwilleke hits another point right on the mark– oral argument is the FUN part of Supreme Court practice. It’s the part that gets you written up in the press, and the part that allows you to match wits with Scalias and Breyers. But it is probably the least important part of the process– 90 percent of cases are a fait accompli before oral argument. And many times the petition for cert.– by far the most important step in a Supreme Court appeal because of the long odds it faces– is written by the counsel who handled the case at the appellate level, with the Supreme Court specialist swooping in after the cert. petition is granted to handle the merits briefing and argument.
So I stand by my statement: I think it is, on balance, a pretty bad thing that we have this elite club that handles so many private party cases before the Supreme Court.
Comment by D.E. — March 2, 2006 @ 7:06 pm
As an attorney who has argued before the Supreme Court only twice, I offer more anecdotes than science.
An experienced “Supreme Court specialist” may be better at identifying particular issues in a case that will cause the Court to grant cert. However, the experienced attorney who actually litigated the case in the lower courts may be in a better position to brief and argue a case once the Court grants cert.
In most cases, the litigator will understand the facts and the law of the case, will have argued the consitutional or federal issues in the lower courts, and will treat the opportunity to argue before the Court very, very seriously. Advocates who will have the Court’s ear only one time are more likely to awake slumbering Justices.
The Chief and the other Justices may listen to the novice more closely, if only out of curiosity. They may gain insight into world that Supreme Court specialists have only seen through briefs.
In any event, arguing a complex and difficult constitutional case to an overworked Superior Court Judge, without a Clerk, is much more of a challenge than arguing a case before nine very well prepared members of the Court.
Comment by David Robertson — March 2, 2006 @ 8:56 pm
Do have any idea as to the sex and race of the new “Supreme Court Bar”? Is it still predominaantly white male? Any comment?
Comment by Don44 — March 2, 2006 @ 11:40 pm
at your new firm, do you expect to compete for the cases that actually earn money (you mentioned that only waxman/phillips/brown are in this category), or do you plan to maintain the same focus at akin that you had at your boutique? congrats on all your success.
Comment by moxfulder1 — March 3, 2006 @ 5:31 am
A couple of years ago, I my client needed to oppose a cert application, so, not being a USSC guy, I went to the only name I knew, Ken Starr. Chris Landau worked on the file, and was fantastic. He filed the opposition brief and cert was denied. It was the best $360/hour my client had ever spent. Chris is top-notch in this field.
Comment by ChuckShick — March 3, 2006 @ 11:48 am
Of course, given the 95% denial rate for cert. petitions, it’s possible you could have had a trained monkey write the opposition brief, and had the same outcome. (The government frequently waives its right to respond unless the Court asks for one.)
But when you hire a specialist and get the result you wanted, there’s a feeling of satisfaction that you left nothing to chance.
Comment by Marc Shepherd — March 6, 2006 @ 11:09 am
As a follow-up to Don44’s comment (Don, did you get any responses)… has anyone come across information specifically looking at the race/gender of those who have had the chance to argue in front of the Court (in addition to the entire Supreme Court bar)? Does anyone know of any efforts to diversify the ranks? …
Comment by lca — April 17, 2006 @ 2:30 am
Just a note — Ken Geller argued today before a court en banc of the Superior Court of Pennsylvania. It was an appeal from a nine-figure verdict; his client was the appellee. He presented very well. He was calm and he knew the record. I’m not making any prediction as to the outcome because the original record is probably at least twice my size.
Question (I almost said “quaere” but then I remembered that I am on the Plain English Committee of the PA Bar Association): Is there a trend toward getting the SCOTUS maven in at an earlier stage?
Comment by Norma Chase — September 6, 2006 @ 4:15 pm
I don’t have my previous comment in front of me and I am not sure I correctly stated Ken Geller’s role in the argument I watched today. He represented the original appellant (and cross-appellee), defendant below.
Comment by Norma Chase — September 6, 2006 @ 8:06 pm