New Scholarship on the Ethics of Opposing Certiorari

Aaron Tang recently (ok, in June) posted, “The Ethics of Opposing Certiorari Before the Supreme Court,” a paper he published in the Harvard Journal of Law and Public Policy.

Here is the abstract:

As the Supreme Court’s docket grows smaller and an emerging class of “Supreme Court experts” snags a greater portion of that docket with every passing year, the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access — and substantial fees — ride on the success of the petitions for certiorari they file. The stakes have gotten so high with respect to the Court’s decisions on “cert” petitions that the popular website SCOTUSblog now has a regular “petitions to watch” column discussing certiorari petitions with a high chance of being granted and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases.

Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. This Article’s core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage may nevertheless enjoy a personal “win” in the form of an opportunity to argue at the Supreme Court. As a result, there is the potential for an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all. This Article analyzes the potential ethical dilemma in opposing certiorari before the Supreme Court, relying chiefly on survey responses from more than one hundred Supreme Court practitioners.

Worth a read for tribal attorneys looking for Supreme Court counsel to defend a cert petition.

SCOTUSBlog: Former SGs and the Supreme Court Bar

From SCOTUSBlog:

Former SCOTUSblog intern Matthew Sundquist discusses the effects that former Solicitors General have had on the development of a specialized Supreme Court bar.

Until recently, Matt Sundquist was a Fulbright Scholar in Argentina.  He is  a graduate of Harvard College and was an intern for SCOTUSblog in the winter of 2009-2010.

As of the end of the Court’s October Term 2009, the past ten former Solicitors General had argued a combined 357 cases.  Recent former Solicitors General have participated in some of the Court’s most significant recent cases: Greg Garre in Christian Legal Society v. Martinez (2010); Seth Waxman and Ted Olson in Citizens United v. FEC (2010); Paul Clement in McDonald v. Chicago (2010); and Walter Dellinger in District of Columbia v. Heller (2008).  Former Solicitors General are in many ways the stars of the Supreme Court bar, heading Supreme Court litigation practices at large firms and handling the briefing and arguments for big cases.  This trend is relatively new: although former Solicitors General from 1952 to 1980 became professors, judges, or private practitioners, and those from the 1980s and early 1990s generally litigated as consultants or independently, the past five former Solicitors General (with the exception of Elena Kagan, who is now a Justice on the Court) manage Supreme Court litigation practices.  In a recent paper in the Charleston Law Review, summarized in this post, I document this trend, explain the advantages that former Solicitors General can offer as litigators, and conclude that a variety of factors – including financial incentives, the rise of a Supreme Court bar, career obstacles, and a demand for sophisticated litigators – facilitated the trend.

Special relationships and responsibilities

Historically, the Solicitor General has had unique relationships throughout government: he (this post will use “he” because all former Solicitors General except for Elena Kagan are male) is appointed by, and serves an advisor to, the executive; he defends laws passed by the legislative branch; and he works primarily in the domain of the judical branch, where he supervises litigation by the government in both the Supreme Court (including amicus filings and oral arguments) and the lower federal courts.  The Solicitor General often plays a unique role at the Court:  he can confess error – even if the government prevailed – if he believes that a lower court decision was wrong, and he may decline to defend a statute that he regards as unconstitutional.  Finally, the Court often relies on the Solicitor General to help it to choose its cases by asking the Solicitor General – in a case in which the United States is not a party – to file a brief expressing the views of the United States.    Over the past four Terms, when the Office of the Solicitor General responded to such a Call for the Views of the Solicitor General (CVSG) by recommending that the Court grant certiorari, the Court agreed a remarkable ninety-seven percent of the time, and it agreed with the Solicitor General’s overall recommendations eighty-six percent of the time.  This unique role and the trust that the Office of the Solicitor General enjoys allows the Solicitor General to hone his lawyering skills and gain the respect of Justices and other repeat players at the Court.

A new trend

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On the “Supreme Court Bar” and Indian Law

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.

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Commentary on the Plains Commerce Bank Cert Grant

The Supreme Court’s decision to grant certiorari in Plains Commerce Bank v. Long Family Land & Cattle Co. surprised me a great deal. It proves, I think, that Indian law scholars and practitioners cannot claim to predict how the Supreme Court is going to act (no big surprise there, given how few Indians or Indian lawyers have clerked for the Court), but I also think it shows that the so-called Supreme Court bar can miss one every now and then [SCOTUSBlog’s Petitions to Watch seemed to miss this one].

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