The Supreme Court bar as a tool of business
on Jan 6, 2015 at 5:35 pm
Richard Lazarus and a team of reporters from Reuters have recently published significant pieces on the influence that specialist attorneys have in the Supreme Court. They have documented that specialists are handling a higher proportion of cases at the Court – both in filing petitions that are granted and in litigating cases heard on the merits. The data on those points seems clear.
The authors suggest that this trend substantially favors business interests, a claim on which pieces like one in today’s New Yorker have expanded. The specialists, they argue, overwhelmingly work for corporate law firms. Those firms cannot represent the adversaries of business interests, such as individuals pursuing discrimination claims and groups pursuing environmental claims.
It seems plain that corporate interests receive better representation at the Court now than ever before. But all private parties receive substantially better representation now. It is not correct that the development of a specialist bar produces seriously lopsided representation at the Court.
To figure out if there is a serious disparity, I counted the relevant cases argued so far this Term, plus those argued over the prior two Terms. I included every instance in which a corporation argued just against a non-corporate party, such as an individual, class of plaintiffs, union, or advocacy organization. There were thirty-four cases.
Businesses did win the great majority of the relevant cases: twenty-one of twenty-seven, with seven left to be decided. (It won most of those (thirteen) unanimously, so that means that even the more liberal Justices supported the result.) That makes it easy to infer that there is a link between a large number of experienced attorneys who represent corporations and pro-corporate rulings by the Court.
But I don’t think that the disparity in results can be attributed to the lawyering. Of the thirty-four cases, there were only two in which the non-corporate party litigated the case without obvious, substantial support either from Supreme Court counsel (representing the party) or the Solicitor General’s Office (as an amicus). Both of those were argued two Terms ago. (There were also two in which the non-corporate party had Supreme Court counsel, but the business did not.)
The reality is that there is plenty of good lawyering to go around. Many specialists do not work for corporate law firms, and they regularly represent individuals and advocacy organizations. There are experienced Supreme Court advocates at small firms that can do either side of a case (like Paul Clement’s and mine), Supreme Court litigation clinics at law schools (the Stanford, Yale, and Virginia clinics are especially active, along with the Harvard clinic that my firm runs during the school’s January term), and public interest organizations (like Public Citizen). In other cases, attorneys from firms that generally represent corporations find ways to make exceptions.
Certainly, there are cases in which the business community is able to pour on support from Supreme Court counsel filing amicus briefs. But the reverse can be true too, as the plaintiffs’ bar has the ability to organize itself very well when its interests are implicated.
I haven’t yet done a similar study of representation at the cert. stage. But my anecdotal sense, which comes from a lot of personal experience, is the same: that experienced Supreme Court counsel are involved seeking and opposing review in cases against corporations.
One other point bears mentioning. One important consequence of the emergence of a Supreme Court bar is in balancing the playing field in cases litigated against the government, which has long been represented by specialists from the Solicitor General’s Office. Criminal defendants, in particular, now receive significantly better representation when Supreme Court counsel become a part of the legal team.