The NYTs’ Adam Liptak published a fairly scathing article on the so-called “Supreme Court Bar” — the specialists that argue more than 50 percent of all Supreme Court cases now decided. It’s worth reviewing this article, especially in light of the rise of the Tribal Supreme Court Project, which has a goal of recruiting specialists to argue Indian law cases (as well as brief the merits briefs and at least some of the amicus briefs).
Given the NYTs article, which suggests that some (many?) of the Supreme Court Bar members are more interested in self-gratification than winning a case (and notes that Chief Justice Roberts once made some very disparaging remarks about them ten years ago), have tribal interests been prejudiced by the Tribal Supreme Court Project’s efforts to utilize these lawyers? Has there been any effect at all?
A few decades ago, law prof Mark Galanter argued that “repeat players” [corrected link] (“the haves”) have distinct and significant advantages over one-timers. While he didn’t emphasize the Supreme Court’s cases (or individual attorneys), his theory seems to have significant resonance in this area. It would make sense that entities that have frequently appeared in the Supreme Court would have advantages over a party that will be there once and never again. At our conference last weekend, Douglas Laycock indicated that many organizations that appear frequently as amici in the Court’s religious freedom cases are very good at organizing amici strategies, indicating that these repeat amici have advantages, too.
It would make sense that lawyers that appear frequently before the Supreme Court would have some advantage as well, especially since those lawyers likely to be retained to argue multiple cases are usually former Supreme Court clerks, current or former lawyers with the Office of Solicitor General, or otherwise exceptional appellate litigators. These factors were enough to persuade the big thinkers in the Tribal Supreme Court Project (circa 2001) to pursue a strategy of recruiting and retaining the Supreme Court Bar in future.
Our sense is that the jury’s still out. We don’t know yet whether the Supreme Court Bar makes a difference, in part because it took nearly five years to persuade the tribal clients to retain the Supreme Court Bar.
The first Supreme Court specialist to argue a case on behalf of tribal interests came in Wagnon v. Prairie Band — Ian Gershengorn, a former Stevens clerk and part of a Supreme Court practice group in D.C. He lost (it was hist first argument), with Ted Olson, former Solicitor General arguing for Kansas. The second specialist to argue was David Frederick in Plains Commerce Bank. Frederick was a former OSG lawyer, and has literally written the book on Supreme Court oral advocacy. He went up against Paul Banker for the Bank, a one-timer, and lost. Despite these negative results, the strength of the tribal position (especially in Plains Commerce Bank) likely increased by the presence of the specialists.
The next case was the second United States v. Navajo Nation case. Paul Frye, a long time lawyer for the Navajo Nation had argued and lost the first case, so this time the Nation turned to Carter Phillips (who seemed to treat the case as a joke after the Court made clear his side was losing). This case might be an example of Adam Liptak’s suggestion about the possible abuses of the Supreme Court Bar, but I’m not qualified to make that judgment.
So, for Indian Country, the Supreme Court Bar is oh-for-three. [Also, SCT specialist Kannon Shanmugam argued the Office of Hawaiian Affairs case, another loser, but not sure that’s an Indian law case.]
Conversely, the Supreme Court Bar is exceptionally successful when opposing tribal interests. Ted Olson won Wagnon and Carcieri v. Salazar. Caitlin Halligan won Sherrill. Basically, they are undefeated in the last ten years.
The sample sizes are far too small, and the evidence is too thin to recommend anything, but overall, it seems pretty clear that the Supreme Court Bar hasn’t hurt Indian Country in the manner described by Liptak. If anything, Indian Country should go further and have a Supreme Court specialist strategize full-time for the Tribal Supreme Court Project, as we have suggested elsewhere.
By way of response, the recruiting of Supreme Court specialists has never been a principle goal of the Tribal Supreme Court Project. Specialists are often helpful, particularly in the certiorari process, but it depends on the case and it is ancillary.
The principle goal of the Tribal Supreme Court Project is to keep tribal cases out of the Supreme Court. In the 1990’s it was an article of faith among many tribal leaders and tribal attorneys that they could sue and have tribal rights vindicated in federal court. This view was warranted by the success tribes had in the 1970’s and 80’s, but then the composition of the Supreme Court changed. We were seeing four or five tribal cases per year before the Supreme Court, and tribes were losing regularly. There was often very little collaboration on litigation, as the view was that it was each tribe’s sovereign right to litigate whenever or however they wanted. Our goal was to change the collective mindset and encourage tribes to think carefully before initiating litigation, to look for alternative solutions, to collaborate on the briefing process, and to do a better job of preserving victories by writing smart cert opposition briefs. Riyaz Kanji was our mentor in adopting a new view of Supreme Court litigation.
The Project has had some significant success. Tribes are much more cautious and thoughtful about initiating litigation. The number of cases before the Supreme Court has been dramatically reduced, and we do a much better job with our amicus brief and cert opps. From my perspective, it feels like we have come a long way from where we were in the 1990’s.
It is tempting to judge the Project by the fact that tribes are not yet winning cases on a regular basis. In my view, the continuing losses only reinforce the importance of our primary strategy — keep as many cases as possible out of the Supreme Court. The stubborn fact is that the majority of justices are disinclined to favor tribal positions. Tribes need to adopt a variety of strategies to manage this adverse situation. Sometimes retaining a specialist is needed, particularly for cert opposition. But no specialist will substitute for smart decision-making on a daily basis by hundreds of tribal leaders and attorneys across the country choosing when and how to press tribal rights in federal court.
Agreed on all points. Thank you, John.
I would add that the Tribal Supreme Court Project, hopefully, will begin to accrue the advantages (to the extent there are any) of being a repeat player (but without actually being in the Supreme Court all that much).
BTW, Indianz.com, what’s up with that headline? “The Supreme Court Bar not so great for Indian law.” We like to think there was more nuance in the post than that. 🙂
Thank Matthew — the only thing I would add is that there isn’t really a brain trust that runs the Tribal Supreme Court Project. (Unless Kanji is a brain trust all by himself.) We think of it as collective effort by all tribes and tribal attorneys — we are all in this boat together and it works better if we collaborate. I think of Turtle Talk as a key part of the collective effort. You saw a need and your group does a terrific job of getting out information on important cases and legal developments. I read it all the time.