Court and the Law: Friends in High Places

Aquarian · Joined: 13 Nov 2007 Posts: 15 Location: Homestead, Florida

CQ WEEKLY
Nov. 18, 2007 – 4:48 p.m.
Courts && the Law: Friends in High Places
By Kenneth Jost, CQ Columnist
Equal Justice Under Law is carved in big letters over the Corinthian columns framing the main entrance to the Supreme Court. While the goal has always been more aspirational than actual, a leading expert says the gap between the hope and the reality is widening.

The reason: the emergence of an elite corps of Supreme Court advocates, most of them with big corporate law firms in Washington, who appear to be having outsized influence in shaping the court’s docket and its decisions to advance the interests of well-heeled business clients. The lawyers in what might be called this legal-commercial complex are well known in legal circles — and hardly at all otherwise. But their influence has been surging in the past two decades, according to Richard Lazarus of Georgetown University.

Today, according to Lazarus’ exhaustive compilation for a forthcoming article in the Georgetown Law Journal, “expert” Supreme Court advocates — those with at least five appearances before the court — are behind nearly half the cases the court agrees to consider. Non-government lawyers who have made 10 or more arguments at the court used to be a rarity; in the last term, they filled nearly one-fourth of the argument slots.

The trend is more than a legal business story, according to Lazarus, a left-leaning environmental law expert who is well regarded for running Georgetown’s Supreme Court Institute on a nonpartisan basis. (Disclosure: As an adjunct professor at Georgetown, I count Lazarus as colleague, source and friend.) He sees “preliminary indications” that this newly emerged Supreme Court bar is having “a significant, long-term substantive impact” — specifically, helping business get more cases on the court’s shrinking docket and winning favorable rulings in cases that pit big business against workers, consumers, small businesses and government regulators.

In fact, the business community’s success was one of the big stories as the second year of the Roberts Court ended in June. The U.S. Chamber of Commerce’s National Legal Center claimed its most successful year at the high court since the chamber established a full-time litigating arm 30 years ago.

As Lazarus tells it, the rise of the Supreme Court bar began when Rex Lee chose not to return to Brigham Young law school in 1985 after stepping down as the solicitor general, or chief Supreme Court advocate, for the Reagan administration. Instead, Lee joined the Washington law firm of Sidley Austin to head a specialized Supreme Court practice. The firm’s subsequent success spurred other big firms to follow suit. And other solicitors general have now also followed the path to the private sector, including Democrats Walter Dellinger and Seth Waxman. So, too, did a deputy solicitor general in the first Bush administration: John G. Roberts Jr., who gained pre-eminence as a Supreme Court advocate representing for the most part business clients with the Washington firm of Hogan && Hartson.

A Little Help
Litigators such as Roberts can do disproportionately well at the court, Lazarus says, because justices rely on lawyers to help do their jobs, especially in screening cases. With 9,000 petitions for review in the most recent term, the justices cannot read even most of them. Law clerks acknowledge they look more closely at petitions filed by experienced Supreme Court practitioners. And business groups also file friend-of-the-court briefs to red-flag cases raising important issues for the business community.

Once the court agrees to hear a case, the elite advocates know best how to fashion an argument either to win, or at least minimize the impact of a loss. This “advocacy gap” matters more in business cases than in higher-profile cases, Lazarus says, because the justices are less familiar with many of the topics themselves.

Lazarus sees the Supreme Court bar’s impact in three areas in particular: antitrust, punitive damages and (oddly) railway law, where business interests have been winning consistently in recent years. He could also have listed employment discrimination and securities law, where plaintiffs have also recently been taking it on the chin. In those and other areas, interest groups opposing the business community are typically under-resourced and overmatched.

The lawyers responsible for those business successes minimize their role. Maureen Mahoney of Latham && Watkins stressed to Legal Times’ Tony Mauro that the pro-business trend has been developing for a while and that the court now includes seven Republican-appointed justices likely to look well on business interests for the most part. Lazarus acknowledges that political reality — but suggests the lawyers sing a different tune in persuading business clients to pay six-figure retainers for working on a Supreme Court case.

What could be wrong with better legal advocacy, some might ask, especially at the nation’s highest court? “Better decisions require better advocacy on all sides,” Lazarus replies, “not just on behalf of some sides.” He offers some suggestions for righting the balance, such as support for the Supreme Court clinics sprouting at several top law schools. As a first step, perhaps law students can help close the gap, but the bar — and the court itself — may need to do more to move toward what is now the receding goal of equal justice for all.

Kenneth Jost is the Supreme Court editor for CQ Press.

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