The Expansion of the “Supreme Court Bar”
on Mar 2, 2006 at 11:32 am
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 â€“ 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 â€“ 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 â€“ Kirkland and Hogan â€“ 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 SGâ€™s Office, Greg Garre argued 3 cases in the span of just about a year before becoming Principal Deputy at the SGâ€™s Office; he presumably will return at the end of his tenure in the government. Jonathan Franklin of Hogan â€“ who remains at the firm â€“ 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 â€“ some of them very high-profile, including some major successes â€“ 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 Olsonâ€™s absence, and â€“ particularly with Olsonâ€™s return â€“ 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 â€“ e.g., Kellogg Huber (Austin Schlick), O’Melveny & Myers (Matt Roberts, who subsequently returned to the SGâ€™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 â€“ including 7 of the 15 new practices â€“ 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 â€“ 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 â€“ 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.
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 â€“ Carter Phillips, Seth Waxman, and Mayer Brown, with Ted Olson almost certain to join that list over the next year â€“ 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.