“Ask the Author”: Richard Lazarus, Part III

This edition of “Ask the Author” features a conversation with Richard Lazarus about his new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar,” see here. Lazarus’s piece, which is forthcoming in the Georgetown Law Journal, is a very informative analysis of the role of the Supreme Court bar in shaping the work of the Court. Some of our readers may already be familiar with Lazarus as he is the co-director of the Supreme Court Institute at Georgetown Law Center, see here, which also runs a moot court program for counsel appearing before the Supreme Court. For Part I of the interview, click here, and for Part II, click here.

You argue that the Court’s recent interest in business cases is largely a product of the advocacy of the elite Supreme Court bar. I might counter, however, that that bar has been dominant for the past decade or so, but the Court’s interest in business cases has really grown over the past two Terms. Is it possible that the appointments of Roberts and Alito, rather than the priorities and advocacy of the Supreme Court bar, have been the impetus for much of the renewed interest in business cases?

I think the growth in the Court’s interest in business law is not just something that has happened in the past two Terms, but something that has been gradually growing as the Bar’s influence has been growing. Persuading the Justices that an area of law is of sufficient interest is also something that can require multiple years of effort, including several years of cert denials, until the Court begins to appreciate the numbers of cases and the depth of interest. The Bar has also become far more effective, as it has grown, in using amicus briefs to support its cert petitions.

But, with this said, I don’t question that the new members of the Court, especially the new Chief Justice, have made a difference. The Chief would naturally be more open to concluding that business issues are important having represented those interests as an advocate before the Court and having made some of those same arguments.

But, to me, that possibility does not diminish the significance of the Bar. Just the opposite. It underscores it. The Bar’s rise in prominence has led to the ultimate impact on the Court as one of the Bar’s most accomplished advocates before the Court has now become an advocate within the Court. The President stressed Roberts’ skill as an advocate in nominating him to the Court. After all, he had been a judge for relatively short time, while he had been a widely celebrated Supreme Court advocate for many years.

You suggest in the article that experienced Supreme Court attorneys at the beginning of the twentieth century were largely located in New York, while very few of them practice in New York today. Do you have any explanation as to why the locus of Supreme Court practice has moved from New York to Washington, D.C.? Is Supreme Court or appellate work less profitable or is it merely coincidence that most New York City firms today do not focus on Supreme Court work?

The discrepancy between the role that NYC Bar played through the first half of the 20th century and since is fascinating. John W. Davis of Davis Polk, Charles Evan Hughes (Jr. & Sr) of Hughes Hubbard, and Thomas Thacher of Simpson Thacher, were among the leading appellate and Supreme Court advocates of their time. The shift in locus is dramatic. The standard explanation is that the NYC law firms concluded early on that SCT practice did not offer the potential for billable hours and profits of others areas of practice. And, there is clearly something to that position, in terms of billable hours. Perhaps the reason for their reticence is therefore similar to that provided by Davis himself in explaining why he rebuffed efforts to put him on the Supreme Court; Davis reportedly asserted that he had taken no vow of “poverty” and that “[n]o sober man reaches middle life without feeling the increasing necessity for making some provision for the future.” Do New York lawyers care more than lawyers in other cities about making more money more quickly than on other possible indicia of professional prestige? I leave that for others to answer.

What I do believe, however, is that the New York firms underestimated the potential for such a visible SCT practice to help the bottom line by increasing a firm’s national prestige and by helping in the recruitment of the most sought after recent law grads, especially Supreme Court clerks. But what do I know about law firm profitability? Essentially nothing. And, I have not noticed any indication that the NYC firms are second guessing themselves in this area. As far as I can discern, they seem to be doing just fine financially without resort to a Supreme Court practice. And, perhaps even as the success of such practices has become more apparent, the NYC firms have concluded that it is now too late in the day to make the investment necessary to create one, especially with the shrinking docket.

At risk of being provocative (once again), I would like to add, however, that I think the NYC Bar’s decision has been at some cost. I have no occasion to review the work of the leading NYC law firms in the federal or state courts of appeals. But, as a general matter (yes, of course, there are always exceptions), their appellate work in the Supreme Court is a step below the quality of that filed by the law firms in DC, Chicago, California, and now Texas firms that enjoy a concentration of Supreme Court expertise. The discrepancy in quality is palpable even in high stakes cases before the Court as expertise matters in the practice of law. And Supreme Court advocacy is no exception.