Why Top Advocates Are Ghostwriting SCOTUS Briefs
The practice of ghostwriting briefs in opposition to a grant of certiorari has been getting some attention this summer. We took an informal poll to see how common it is for lawyers to omit their names from briefs—and to ask if the long-standing practice is ethical.
August 09, 2017 at 03:08 PM
16 minute read
Top U.S. Supreme Court advocates are not known for hiding their talents. But some of them hide their names, in a little-known but long-standing practice that has gotten renewed attention and criticism this summer.
We're talking about lawyers leaving their names off a “brief in opposition”—the brief that is filed by appellees to urge the high court not to grant certiorari in a case they won below. These briefs generally counter the cert petition by arguing that there is no circuit split or that the case is unimportant or a poor vehicle for resolving the issue that the petition raises.
To underscore their “move along, nothing to look at here” assertions, top Supreme Court advocates who write these briefs in opposition sometimes omit their names from the brief, instead listing the lawyer who handled the case below as the counsel of record. The rationale is that if justices or their clerks see “big name” lawyers on the brief, they may think that in fact the case is important, will be well-argued, and should be granted review—a result that would be against the client's interest.
The practice has gone on largely unremarked on for years. “I have been ghostwriting opposition briefs for more than 30 years,” Sidley Austin's veteran advocate Carter Phillips said.
In a National Law Journal survey this week sent to 25 prominent Supreme Court advocates, six of the 11 lawyers who responded said they have also ghostwritten opposition briefs. The survey was built to give respondents anonymity.
One prominent advocate who did not want to be named also said, “I'll bet you any amount of money that John Roberts ghostwrote more than his fair share of oppositions.” The chief justice, who had a top-tier Supreme Court practice at the firm now known as Hogan Lovells before becoming a judge, declined to comment on the ghostwriting practice and on whether he did it himself.
Viewing the ghostwriting practice in an entirely new light began late last year when two former Supreme Court law clerks got into a Twitter conversation about the subject. One of them, Ian Samuel, a former law clerk to Justice Antonin Scalia and a Harvard Law School lecturer, decided to broaden the discussion, and asked the question: Is ghostwriting a Supreme Court brief ethical, or does it improperly mislead the court as to who actually wrote it?
Samuel and Daniel Epps, a former Anthony Kennedy clerk and a professor at Washington University School of Law, have a perfect platform for the discussion; they are hosts of First Mondays, an intensely Supreme Court-focused podcast that has become required listening for court aficionados. Samuel also launched a symposium on PrawfsBlawg that laid down the gauntlet: “I have a problem with this practice, because I have a problem with lawyers lying to courts.” He repeated that view in the June 27 First Mondays podcast, though in an interview Samuel stressed that “I am not suggesting anyone is acting in bad faith.”
He also said his impression is that ghostwriting opposition briefs “happens a lot” and “pays a lot of peoples' bills.”
The NLJ survey found that two thirds of Supreme Court advocates who responded believe the practice is somewhat or very common. None of those surveyed said they thought the practice was unethical, including those who don't do it.
Those who defend the practice note that that all kinds of briefs omit the true authors—junior associates, for example—and that the listed counsel of record takes full responsibility for the brief, no matter who wrote it.
'A LITTLE BIT ARROGANT'
The main justification for ghostwriting is that it serves the client's best interests by not drawing the court's attention to the case. That does not justify misleading the court, Samuel said in the podcast, and besides, he added, “The justices and their law clerks are not stupid, and if an expertly done BIO [brief in opposition] is said to be written by a first-time Supreme Court litigator who specializes in slips-and-falls in central Florida, no one is going to be fooled into thinking that he didn't have help.”
On that point, Epps said he received an unconfirmed tweet suggesting that a top Supreme Court firm used an alternative style guide for briefs in opposition, to keep them from looking too polished.
Williams & Connolly partner Kannon Shanmugam, head of the firm's appellate and Supreme Court practice, said in another podcast hosted by Samuel and Epps that earlier in his career, he too ghostwrote briefs in opposition “on a couple of occasions,” and believes that it is ethical to do so. “I think the Supreme Court's rules clearly permit it, and one could make the argument that it's in the client's interest.”
But Shanmugam that he has decided not to do it anymore. He thinks having experienced lawyers on both sides of a case “is not necessarily a proxy that the case might be cert-worthy,” but rather means only that both sides are taking it seriously. In addition, Shanmugam said, “There's something a little bit arrogant about the notion that simply seeing my name on a brief is going to somehow cause the court to think, 'Boy, this is a case that we have to take a particularly close look at.'”
Another high court advocate who did not want to be named said, “Once you have Seth Waxman or Paul Clement on a cert petition, that does the signaling” to alert the justices that the case could be important, no matter who writes the brief in opposition. This advocate, also a former Supreme Court law clerk, also said that neither the justices nor the clerks are as attuned to the lawyering in incoming cases as lawyers think they are.
Sidley's Phillips agreed. “I am 100% certain the court does not care” about ghostwriting, he said. “If it did, it would adopt a rule banning ghostwriting briefs in opposition in the same way that it adopted a rule banning ghostwriting or funding amicus briefs.” The court's Rule 37 requires amicus brief filers to indicate “whether counsel for a party authored the brief in whole or in part,” but is silent on ghostwriting of briefs filed by the parties themselves.
Phillips added, “I guess I understand why academics would get intellectually excited about the issue, but frankly I have hard time seeing any serious basis for concern.”
Top U.S. Supreme Court advocates are not known for hiding their talents. But some of them hide their names, in a little-known but long-standing practice that has gotten renewed attention and criticism this summer.
We're talking about lawyers leaving their names off a “brief in opposition”—the brief that is filed by appellees to urge the high court not to grant certiorari in a case they won below. These briefs generally counter the cert petition by arguing that there is no circuit split or that the case is unimportant or a poor vehicle for resolving the issue that the petition raises.
To underscore their “move along, nothing to look at here” assertions, top Supreme Court advocates who write these briefs in opposition sometimes omit their names from the brief, instead listing the lawyer who handled the case below as the counsel of record. The rationale is that if justices or their clerks see “big name” lawyers on the brief, they may think that in fact the case is important, will be well-argued, and should be granted review—a result that would be against the client's interest.
The practice has gone on largely unremarked on for years. “I have been ghostwriting opposition briefs for more than 30 years,”
In a National Law Journal survey this week sent to 25 prominent Supreme Court advocates, six of the 11 lawyers who responded said they have also ghostwritten opposition briefs. The survey was built to give respondents anonymity.
One prominent advocate who did not want to be named also said, “I'll bet you any amount of money that John Roberts ghostwrote more than his fair share of oppositions.” The chief justice, who had a top-tier Supreme Court practice at the firm now known as
Viewing the ghostwriting practice in an entirely new light began late last year when two former Supreme Court law clerks got into a Twitter conversation about the subject. One of them, Ian Samuel, a former law clerk to Justice
Samuel and Daniel Epps, a former Anthony Kennedy clerk and a professor at
He also said his impression is that ghostwriting opposition briefs “happens a lot” and “pays a lot of peoples' bills.”
The NLJ survey found that two thirds of Supreme Court advocates who responded believe the practice is somewhat or very common. None of those surveyed said they thought the practice was unethical, including those who don't do it.
Those who defend the practice note that that all kinds of briefs omit the true authors—junior associates, for example—and that the listed counsel of record takes full responsibility for the brief, no matter who wrote it.
'A LITTLE BIT ARROGANT'
The main justification for ghostwriting is that it serves the client's best interests by not drawing the court's attention to the case. That does not justify misleading the court, Samuel said in the podcast, and besides, he added, “The justices and their law clerks are not stupid, and if an expertly done BIO [brief in opposition] is said to be written by a first-time Supreme Court litigator who specializes in slips-and-falls in central Florida, no one is going to be fooled into thinking that he didn't have help.”
On that point, Epps said he received an unconfirmed tweet suggesting that a top Supreme Court firm used an alternative style guide for briefs in opposition, to keep them from looking too polished.
But Shanmugam that he has decided not to do it anymore. He thinks having experienced lawyers on both sides of a case “is not necessarily a proxy that the case might be cert-worthy,” but rather means only that both sides are taking it seriously. In addition, Shanmugam said, “There's something a little bit arrogant about the notion that simply seeing my name on a brief is going to somehow cause the court to think, 'Boy, this is a case that we have to take a particularly close look at.'”
Another high court advocate who did not want to be named said, “Once you have Seth Waxman or Paul Clement on a cert petition, that does the signaling” to alert the justices that the case could be important, no matter who writes the brief in opposition. This advocate, also a former Supreme Court law clerk, also said that neither the justices nor the clerks are as attuned to the lawyering in incoming cases as lawyers think they are.
Sidley's Phillips agreed. “I am 100% certain the court does not care” about ghostwriting, he said. “If it did, it would adopt a rule banning ghostwriting briefs in opposition in the same way that it adopted a rule banning ghostwriting or funding amicus briefs.” The court's Rule 37 requires amicus brief filers to indicate “whether counsel for a party authored the brief in whole or in part,” but is silent on ghostwriting of briefs filed by the parties themselves.
Phillips added, “I guess I understand why academics would get intellectually excited about the issue, but frankly I have hard time seeing any serious basis for concern.”
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