Empirical SCOTUS: Not all appeals are equal
on Apr 18, 2018 at 4:33 pm
Every year the lawyer research and ranking company Chambers & Partners puts out a list of top appellate lawyers and firms. (In a previous post, I looked at some of the listed firms’ cert performance.) Chambers uses a mix of qualitative and quantitative methodology to come up with its various lists. Because its group of top appellate lawyers presumably made the cut based on their prowess in appellate law generally, this list is far from Supreme Court specific. In fact, as most lawyers are aware, appellate practice traditionally is based in federal and state courts of appeal and often has little to do with Supreme Court practice. Since the Supreme Court is not necessarily the principal court of practice for this group of attorneys, I thought it would be interesting to see how involved the group of 66 attorneys in Chambers’ list of top appellate lawyers have recently been in Supreme Court litigation. To do this I looked at several measures of participation for the previous and current Supreme Court terms.
Many of the 66 attorneys in Chambers’ list of top appellate lawyers were involved in multiple cases across the 2016 and 2017 Supreme Court terms. In fact, when we look at their total participation in terms of merits and amicus briefs that name them as counsel, we have 282 briefs, or an average of 4.27 briefs per attorney. This measure is quite skewed, because the top participating attorneys were involved in well over five cases during this period and the least involved attorneys were involved in few to no cases in the Supreme Court. Just comparing the 2016 and 2017 terms, these attorneys are slightly more involved in cases this term than last.
Which attorneys made Chambers’ list and in how many cases were they involved? The following figure ranks the attorneys who participated in Supreme Court cases over the past two terms by total number of cases.
The individuals in this figure were involved in cases as amici and merits attorneys. As we will see, some of these attorneys were disproportionately involved at one level or the other, while others had a mix of involvement. For instance, the top attorney by case involvement, Andrew Pincus of Mayer Brown, reached this position primarily through amicus participation.
With his involvement in 20 amicus briefs across these two terms, Pincus accounts for more than double the participation of the next most involved amicus attorney in the list, David Frederick. Pincus’ amicus participation runs the gamut from representing E-Bay in the recently argued South Dakota v. Wayfair to representing the Chamber of Commerce in Lucia v. Securities and Exchange Commission, which will be argued next week.
Other attorneys on the amicus list, including David Frederick and Paul Clement, were also involved in a large number of cases at the merits level.
With 11 cases, Neal Katyal’s involvement in merits cases over the past two years surpasses that of Clement, Frederick, and all of the other attorneys on Chambers’ list. Katyal’s merits activity includes his representation of Hawaii in the highly anticipated case of Trump v. Hawaii. Clement recently argued on behalf of the winning party in Encino Motorcars v. Navarro. Rounding out the five most involved attorneys at the merits level are Orrick’s Josh Rosenkranz, Williams & Connolly’s Kannon Shanmugam and Goodwin’s William Jay.
The level of participation from these 66 attorneys was far from equal across cases. Certain high-profile cases led to the involvement of greater numbers of these attorneys. Still, there are cases involving several of these attorneys that might be somewhat surprising.
The case involving the most attorneys from Chambers’ list over the past two terms was the patent case Oil States Energy Services v. Greene’s Energy Group. Although Oil States has not received as much coverage in the popular press as other cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission, the possible repercussions of this ruling for many businesses created large stakes for powerful entities affected by patent litigation. The travel-ban case – Trump v. Hawaii – ranks second on the list, followed by Gloucester County School Board v. G.G., in which the Supreme Court vacated and remanded the lower court’s decision based on the federal government’s change of position.
Even though these attorneys were and are involved in multiple cases over the past few terms, this does not necessarily signal their continued involvement in Supreme Court cases moving forward. With the current strength of the “Supreme Court Bar” of elite attorneys, though, it will not be surprising if many of these attorneys continue to be involved in a high number of Supreme Court cases.
The next figure looks at cert petitions granted, denied or pending since January 1, 2017 involving the attorneys shown in the previous figure who were involved in at least three merits cases. The numbers are based on the dockets in which they filed cert petitions. This figure should be taken with a grain of salt, because it encapsulates a specific moment in time. Some of the pending petitions could be granted or denied in the near future, shifting the composition of this figure substantially.
This figure has some overlap with the previous figure, because the granted cases were predominantly already argued. Nonetheless we see that even with their success, these attorneys file a fair share of petitions that are denied. We also see that almost all of the attorneys on this list have current petitions in the pipeline. Kannon Shanmugam has the most pending petitions of this group, followed by Paul Clement. Suffice it to say that this group should be quite involved in forthcoming Supreme Court cases and petitions.
Although not all the attorneys from Chambers and Partners’ list are highly involved in Supreme Court litigation, many are. With the continued involvement and success of elite Supreme Court attorneys, there is no suggestion that this trend will cease. A future cut at this question may compare attorneys covered by Chambers’ list with other top Supreme Court attorneys not mentioned by Chambers. There are many ways to measure Supreme Court success, but this is one more piece of evidence that the acme of U.S. courts is dominated by a group of veteran attorneys and will continue to be so at least for the foreseeable future.