Part 1: A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases – and business is capitalizing on their expertise
WASHINGTON – The marble façade of the U.S. Supreme Court building proclaims a high ideal: “Equal Justice Under Law.”
But inside, an elite cadre of lawyers has emerged as first among equals, giving their clients a disproportionate chance to influence the law of the land.
A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.
The lawyers are the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court. None of these lawyers is a household name. But many are familiar to the nine justices. That’s because about half worked for justices past or present, and some socialize with them.
They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012.
The Reuters examination of the Supreme Court’s docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.
The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.
Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.
THE NATURE OF THE BUSINESS
“Working for corporate clients is the bread and butter of our practice,” said Ashley Parrish, a partner at King & Spalding whose success rate in getting cases before the court ranks him among the top handful of lawyers in America. “As a large national firm, we are generally conflicted from representing individuals and advocacy groups in litigation against corporations,” he said. “They are typically suing our clients or prospective clients.”
The firm takes some criminal defense and First Amendment cases pro bono. But like other firms with Supreme Court practices, such cases are the exception.
“It’s the nature of the business,” Parrish said.
As a consequence, individuals seeking to challenge large companies are left to seek counsel from a pool of attorneys that’s smaller and, collectively, less successful.
The court generally has a conservative, pro-business majority, but even one of its most liberal justices, Ruth Bader Ginsburg, accepts the corporate tilt of the specialist bar that dominates the docket.
“Business can pay for the best counsel money can buy. The average citizen cannot,” Ginsburg said. “That’s just a reality.”
Chief Justice John Roberts declined to comment on the Reuters analysis. But exclusive interviews with eight of the nine sitting justices indicate that most embrace the specialty Supreme Court bar. To them, having experienced lawyers handling cases helps the court and comes without any significant cost. Effective representation, not broad diversity among counsel, best serves the interests of justice, they say.
The growing power of the specialist bar worries some leading lawyers, however. Michael Luttig, general counsel for aerospace giant Boeing Co., understands the advantages of hiring from that group; he has done so when the company has had a case before the justices. But as a former U.S. appeals court judge who earlier served as a Supreme Court clerk, he says he also sees a downside.
“It has become a guild, a narrow group of elite justices and elite counsel talking to each other,” Luttig said. The court and its bar have grown “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”
Although the Supreme Court is the most diverse it has ever been – three of the nine justices are women and two are minorities – the elite bar is strikingly homogeneous: Of the 66 top lawyers, 63 are white. Only eight are women.
It’s also a self-replicating group of insiders, many of whom previously held positions that offer them deep insight into how the court operates. Among the 66 leading lawyers, 31 worked as a clerk for a Supreme Court justice; in that role, they wrote memos for the justices that summarized petitions and highlighted cases that might be worth hearing. Twenty-five worked in top posts in the U.S. Office of the Solicitor General, whose lawyers represent the federal government before the court.
Like 14 others, lawyer Neal Katyal held both jobs.
At age 44, Katyal is a relative newcomer to this upper echelon of attorneys. But last term, Katyal argued four cases before the high court, second most among the bar’s top advocates. This term, he expects to argue at least three.
In his rise to the top, Katyal has patterned himself after a man who was once one of the most successful members of the court’s elite bar: John G. Roberts.
Before becoming chief justice in 2005, Roberts served in the solicitor general’s office and then built a thriving Supreme Court practice at the law firm where Katyal now works. From 1989 through 2003, Roberts appeared 39 times before the court.
“Business can pay for the best counsel money can buy. The average citizen cannot. That’s just a reality.” Justice Ruth Bader Ginsburg
During interviews, Katyal often cites his admiration for the chief justice, recounting the words of another attorney who encouraged Katyal to take a summer associate position working for Roberts in private practice. As Katyal recalled, the conversation went like this: You know that G in John G. Roberts? the lawyer asked him. The G is for God. (It actually stands for Glover.)
Today, Katyal oversees the practice the chief justice shaped, and he continues to follow the Roberts model. “Every day I’m conscious of the chief’s legacy at the firm and in the Supreme Court bar,” he said.
TOP LAWYERS KEY
The rise of that specialty bar can be traced to the mid-1980s, when President Reagan’s first solicitor general, Rex Lee, joined the Washington office of Sidley Austin.
Demand had grown for lawyers who could help corporations roll back workplace, environmental and consumer regulations that had roots in the late 1960s and early 1970s. At Sidley Austin, Lee launched a high court practice focused on business clients. In the next two years, he argued a remarkable eight cases before the Supreme Court.
By the time Lee died in 1996, other large firms were creating their own Supreme Court practices, largely on behalf of business interests.
The star appellate lawyers, by virtue of the appeals they write and sign, help the justices winnow the pool of cases the court considers. Typically, the Supreme Court agrees to hear just 5 percent of the petitions filed by private attorneys. It accepts 21 percent of the cases bearing the name of a leading advocate.
“They basically are just a step ahead of us in identifying the cases that we’ll take a look at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same standards” as the justices do.
Some scholars say reliance on the expert bar has made for a far more insular court. “We don’t want the justices to filter cases through advocates,” said Jenny Roberts, associate dean at American University’s law school. “If this is happening, delegating the discretion of cases to a sort of sub-Supreme Court when so much is at stake is troublesome. It’s fine if you trust and agree with those in control, but what happens when you don’t?”
Petitions to the Supreme Court, 2004-2012
A group of 66 top lawyers was most successful at petitioning the Supreme Court. Their appeals were 6-1/2 times more likely to be accepted than those filed without their expertise. Also very successful were about 400 lawyers who had worked as law clerks for Supreme Court justices and 76 who served in the top ranks of the U.S. Office of the Solicitor General.
Combined, the three groups accounted for 17 percent of all petitions filed but 56 percent of those the court agreed to hear.
To identify lawyers who enjoyed the most success before the high court, Reuters examined about 10,300 petitions for writ of certiorari, the documents that launch an appeal, filed by private attorneys during a nine-year period. Reuters excluded the large volume of appeals filed by convicts and others without a lawyer; rarely are those cases accepted by the court. The analysis also excluded petitions filed by government lawyers.
At this critical first stage of the process, justices have wide discretion to decide whether to hear a case. For a petition to be accepted – known in Supreme Court parlance as “granting cert” – four of the nine justices must vote to take the case and hear oral arguments.
Each of the 66 lawyers Reuters identified filed an average of at least one petition a year from 2004 to 2012. And each had at least three petitions that were granted in that period. Both criteria put these lawyers far above the norm.
Reuters identified about 1,500 petitions filed during those nine years in which the interests of companies were arrayed against those of customers, employees or other individuals. These appeals included employment discrimination cases, benefits disputes and antitrust cases.
In these cases, the elite lawyers were three times more likely to petition the court on behalf of businesses. And the appeals brought by a leading attorney were six times more likely to be heard than those that were not.
The pro-business predilections of the Roberts court come as no surprise to those who follow its rulings. During the first nine years under Roberts, Reuters found, the court ruled for business parties 60 percent of the time, compared with 48 percent during the court’s last nine years under Chief Justice William Rehnquist.
That divergence extends to which cases the court is willing to hear, says law professor Alan Morrison. “It’s very hard to get a consumer, environmental or workers case up, compared to business,” said Morrison, who teaches at George Washington University. Morrison is the former director of Public Citizen Litigation Group, the liberal advocacy organization that he founded with Ralph Nader in 1972.
Some justices said any perception of a tilt toward corporate America might stem from the nature of litigation today. First, the court is seeing more patent and intellectual property cases, which tend to involve business-related matters. Second, the court is hearing challenges to laws that were enacted following the 2008 financial crisis and involve new regulatory issues.
In addition, some liberal advocates are unwilling to bring certain cases to a conservative-leaning high court, fearing an unfavorable decision that would set a nationwide precedent. Like their business-oriented counterparts, public interest lawyers effectively influence the court’s agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda.
“You don’t want to go up and make matters worse,” said Scott Nelson, a lawyer at Public Citizen and one of the most successful attorneys at getting cases before the justices.
Given the current makeup of the high court, his advocacy group focuses more resources on opposing the petitions filed by business. “Sometimes when I’d rather not take a case, I emphasize my limited time and resources,” Nelson said. “Talking about resources is a nicer way of no, than telling someone, ‘You don’t have a good case.’ ”
Measuring the impact of these elite attorneys on how the court ultimately rules is difficult. Many factors affect how justices interpret the Constitution and federal statutes. “It’s not like we’re judging a moot court: Which lawyer is better?” said Justice Samuel Alito. “It’s the case, not the lawyer.”
But the involvement of attorneys recognized for their Supreme Court experience can influence whether a case simply makes it before the court, a prerequisite to a decision affecting the law of the land.
“If you know you have a solid beginning, two people making the best argument on both sides, that makes it less anxious for you,” said Ginsburg, the senior liberal on the court.
An absence of skilled lawyers also makes a difference.
“Any number of people will vote against a cert petition if they think the lawyering is bad,” said Justice Clarence Thomas, a conservative. He said such decisions stem from the justices’ desires to ensure that both sides have strong representation.
Justice Antonin Scalia, also a conservative, acknowledged that in some instances he will vote against hearing a case if he fears it will be presented poorly and he expects another opportunity to rule on the issues the case presents. “I have never voted to take a case only because a good lawyer was on it,” Scalia said. “But I have voted against what would be a marginally granted petition when it was not well presented…. where the petition demonstrates that the lawyer is not going to argue it well.”
The justices say that some top advocates do champion individuals against corporations. They frequently cite two lawyers.
One is Jeffrey Fisher, who leads Stanford Law School’s Supreme Court clinic, a group that represents criminal defendants and employees, consumers and other individuals. Law clinics, which don’t charge clients, were created to give students hands-on appellate experience. Fisher has argued about two dozen cases before the high court.
Clinics are a limited counterweight to the elite bar, however. Some are associated with top corporate lawyers, which means the clinics steer clear of some of the same business cases that leading law firms avoid. And most clinics are tiny – staffed by two professors and a rotating cast of students. “We can only do so much,” Fisher said.
The other lawyer often cited by the justices as a counterbalance to the corporate-focused bar is David Frederick. A former Supreme Court clerk and assistant solicitor general, Frederick is among the private lawyers who have appeared most before the court during the last decade.
Even so, Frederick is just one lawyer handling a handful of Supreme Court cases a year; corporate firms account for more than half of the court’s docket. Frederick also noted that he has represented corporations as well as individuals at the high court.
“Are we a valid alternative? We certainly could handle responsibly a few more cases,” Frederick said. “But for the large quantity of cases your data reflects, it would not be realistic to call us the alternative.”
ART OF PERSUASION
The court provides loose guidelines on the kinds of cases it will take. It typically seeks cases that give it the opportunity to settle disagreements between lower regional courts of appeals – so-called circuit splits. The idea is to ensure a consistent interpretation of the law and the Constitution.
The justices may decide to take cases that do not include a circuit split if the case involves issues of immediate and national importance, such as President Obama’s health care program, the Affordable Care Act. Unlike in the lower courts, where dozens of issues may be debated, the Supreme Court generally limits its review to one or two discrete issues per case.
When lawyers submit a petition to the high court, their names are on the cover of the filing. Supreme Court clerks provide the initial screening of these petitions. Eight of the justices participate in a “cert pool,” a process in which one of their clerks summarizes a case for the other justices to consider. Alito does not participate in the cert pool and has his own clerks review every petition.
One fact a clerk may highlight in the memo is the presence of a prominent, highly regarded lawyer who’s involved in the case.
Morrison, the George Washington law professor, said clerks may be reluctant to back an inexperienced lawyer, fearing that doing so might lead to the acceptance of a case that’s poorly presented or based on a moot legal question. Playing it safe spares the court the embarrassment of having to dismiss a flawed case after it has been fully argued. Conversely, the clerks know which advocates the justices respect and admire.
“The cert pool memo certainly creates additional barriers” for lawyers who aren’t well-known to the court, Morrison said.
Familiarity with certain advocates might make the difference in whether an ambivalent justice votes to take up a case, said Eugene Fidell, a longtime Washington lawyer now teaching at Yale Law School. That means the specialty bar may be able to skew the court’s docket toward the litigation agendas of their clients, Fidell said.
“There is something disturbing, on a symbolic level, about an important national institution looking like an inside-the-Beltway club,” he said.
A NEW INSIDER
One of the fastest-rising members of that club is Katyal, the lawyer who emulates Chief Justice Roberts.
In at least one sense, Katyal is atypical of the elite bar: A Hindu who was born to Indian immigrants, he is one of just three racial minorities in the top five dozen.
In all other respects, Katyal fits the paradigm. Like 31 of the top 66, he went to one of America’s top two law schools (Yale). And he cultivated the right mentors, having worked directly for three of the current justices: Roberts, Breyer and Elena Kagan.
When discussing his work, Katyal often talks of the chief justice. He mentions one particularly notable instance, when he interviewed with Roberts for a summer job after law school. Before accepting, he asked Roberts, a Republican, whether Roberts would be comfortable working with a Democrat.
“Not only would I be comfortable with it,” Katyal quoted Roberts as saying, “I want you here because I want to learn what others who may at times see the world differently than I think.”
Katyal cited that conversation in a 2002 letter he wrote to the U.S. Senate Judiciary Committee in support of Roberts’ nomination to an appeals court.
Katyal later joined the Obama administration as the principal deputy solicitor general in 2009 – the same title, he notes, that Roberts had in the George H.W. Bush administration. After Kagan left as solicitor general to become a justice in 2010, Katyal tried for the top job but lost to the more experienced Donald Verrilli.
“It has become a guild, a narrow group of elite justices and elite counsel talking to each other.”
“It was probably the hardest professional thing that I have gone through,” Katyal said. Still, he said, he quickly realized the opportunities that a Supreme Court specialty afforded.
“I had calls from a bunch of law firms,” he said. “So many sweet things happened.”
Attorney General Eric Holder hosted a farewell party for him, he said, and Justices Roberts, Breyer and Kagan attended.
Then, Katyal was hired to take over the appellate practice at Roberts’ former firm, Hogan Lovells. He arrived to great news. “The day I walked in here,” Katyal said, “there was a letter waiting for me from the chief.” Katyal had been appointed by his former mentor to a prestigious judicial committee.
Since he joined Hogan Lovells three years ago, Katyal has worked hard to build the practice. He tapped college and law school connections and reached out to tech companies, knowing of the high court’s growing interest in lucrative patent disputes. He also burnished his pro-business bona fides in order to better attract deep-pocketed corporations. He even offered to represent some litigants for free.
Among Katyal’s successes: In July, he persuaded the justices to take up an appeal by his client, a group of gas companies accused of manipulating prices. Katyal is seeking to reverse a lower-court ruling that allowed the antitrust case against the traders to go forward. The appeal will be heard in January.
At stake, Katyal asserted in court filings: hundreds of millions and perhaps billions of dollars for corporations.
“We’re not where the chief was when he was here,” Katyal said of his firm’s Supreme Court practice. “But that’s where we want to go. That’s our goal.”
Edited by Blake Morrison and Amy Stevens