More than half of the 182 oral arguments before the Supreme Court last term were made by familiar faces, an analysis by The National Law Journal shows.
Ninety-eight, or 54 percent, of the arguments made to the court were by lawyers who argued more than once last term. That is an increase over the 2010-2011 term, in which 45 percent of the arguments were made by advocates with multiple appearances during the term.
In addition, more private law firms had multiple arguments before the court last term 12 instead of 8 the previous term and they handled 48 of the arguments, twice the number from the previous term. (The 182 arguments were divided among 79 cases heard by the court last term.)
These higher numbers provide fresh evidence that Supreme Court advocacy has become a rarified specialty where more and more clients opt for veterans and specialist firms over the hometown lawyer who had the case from the beginning.
The survey also showed that lawyers who have argued at the high court more than once during their careers not just during the current term took on 136 of the arguments last term, compared to 46 cases handled by rookies arguing for the first time.
| LAWYERS AND CASES | |||||
|---|---|---|---|---|---|
| The Court saw downturn in the number of cases handled this year. Law firms, however, argued more than they did in 2010. | |||||
| No. of arguments | No. of cases | No. of lawyers arguing | No. of law firms in argument | % of arguments by private practitioners | |
| 2010 Term | 195 | 86 | 139 | 52 | 49% |
| 2011 term | 182 | 79 | 118 | 48 | 53% |
| ADVOCATES WITH MORE THAN ONE ARGUMENT | ||
|---|---|---|
| It was a banner term for lawyers who argued multiple times at the high court. A greater number of lawyers handled more than one argument this year, and they represented a higher percentage of all arguments at the Court. | ||
| 2010 | 2011 | |
| Lawyers with more than one argument | 31 | 33 |
| Number of arguments | 87 | 98 |
| Average number of arguments | 2.8 | 3 |
| Percentage of all Supreme Court arguments | 45% | 54% |
| Private firms with multiple arguments | 8 | 12 |
| Number of arguments by those firms | 24 | 48 |
Justices seem happy with the trend, which many agree has improved the quality of advocacy before the court. But some commentators, notably Harvard Law School professor Richard Lazarus, say the dominance of veteran advocates may result in what he calls “docket capture,” with those lawyers exerting too much influence over the Court in the same way that some government agencies are “captured” by the entities they regulate.
The numbers last term may have been skewed somewhat by the unusual dominance of the argument calendar by just two veteran lawyers: Solicitor General Donald Verrilli and former SG Paul Clement, both of whom stood before the Court nine times last term. For Clement, now partner at the Bancroft firm, it was a modern record for number of arguments in a single term by a private practitioner.
“Paul is a story unto himself. He had an extraordinary term,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. “But the trend is definitely in the direction [of Supreme Court specialists], especially when you are talking about corporate clients.”
Gornstein added that there are “pockets of resistance” such as criminal cases, in which the original defense lawyer is reluctant to hand the argument to a specialist. But even in that area, more and more criminal appeals are being handled by top veterans including, last term, former SGs Gregory Garre and Seth Waxman.
D.C.-based Bancroft catapulted to the top of the list of firms with the most Supreme Court arguments, based solely on the nine cases argued by Clement, who joined the firm in April 2011. Following Bancroft were Sidley Austin with six cases, Latham & Watkins and Mayer Brown, both with five, and then Kellogg, Huber, Hansen, Todd, Evans & Figel, and Wilmer Cutler Pickering Hale and Dorr, both with four.
One statistic that remains virtually unchanged from the 2010-2011 term is the percentage of the arguments made by women. Women stood before the Court only 19 times, compared to 99 by men, close to the 17 percent level of the previous term.
In private practice, List Blatt of Arnold & Porter, Patricia Millett of Akin Gump Strauss Hauer & Feld and Deanne Maynard of Morrison & Foerster account for most of the arguments made by women who specialize in Supreme Court work. All three went to their firms from the solicitor general’s office. And increasing the number of women appearing before the Court in the future, says Gornstein, will be a function of how many women currently working in the solicitor general’s office leave for private firms. “That’s the proving ground,” he said. The women in the SG’s office who argued last term were: Nicole Saharsky, Ginger Anders, Sarah Harrington, Leondra Kruger, Ann O’Connell and Melissa Arbus Sherry.
Laurel Newby assisted in developing the statistics for this report.
