The Supreme Court only agrees to hear a small fraction of all petitioned cases annually, and an elite group of attorneys argue most of those cases before them.
Reuters identified 66 lawyers who filed at least one petition annually from 2004 through 2012 to the Supreme Court, all with at least three petitions accepted by its justices.
Number of Justices
The Supreme Court is steeped in tradition, and its justices enjoy close relationships with attorneys who argue cases in front of them. Over time, their numbers have fluctuated before being finalized at nine after passage of the Judiciary Act in 1869. Appointed by the President and confirmed by both chambers of Congress, justices serve for life unless removed by either institution’s President; additionally they serve on their respective chamber’s judicial committees where they play an essential role interpreting law and reviewing nominees to the Supreme Court.
The Supreme Court stands out in that it hears only a fraction of petitioned cases each year, making it hard for lawyers to break into its practice of arguing before it. There are however, those with proven success at doing just this – their voting records show a clear pattern when voting on cases they’ve argued before the Court.
Attorneys with a successful record in winning cases before the Supreme Court are likely to garner the votes of a majority of Justices for their positions, not necessarily because these justices agree with them but because they think these attorneys present their cases convincingly. Justices may also give these attorneys’ positions greater weight when determining whether to accept cases or not.
Law firms that have become prominent players in the Supreme Court include Jenner & Block, WilmerHale and Hogan Lovells. As seen in this graph, their votes on behalf of justices favored Jenner & Block the most, followed by WilmerHale and Hogan Lovells.
Legal experts often note the growing concentration of power among a handful of specialist Supreme Court lawyers has created an echo chamber at the Court, in which minority justices adhere to one interpretation of how to interpret law. On the other hand, specialists with vast knowledge in court cases often prove more efficient at representing their clients before this body than conventional lawyers would ever do.
Number of Lawyers
Many lawyers claim to be experts at appearing before the Supreme Court, but only a select few truly stand out. Their clients tend to be corporations over individuals and they win cases at an astonishingly fast clip; according to an analysis conducted by Reuters of case records for these lawyers by their peers at least six times more often. Their success has given them outsized access to an institution which already favors corporate interests over individual plaintiffs or defendants.
Justices rely on this select group of specialists when choosing cases to hear. Many attorneys in this group have established strong ties to the court: many have served as clerks to judges; most graduated at the top of their law school class; and most have practiced law for decades – building strong relationships that ultimately result in favorable rulings from justices and their firms.
High court specialists possess proven records in arguing cases before the Supreme Court, which is essential to winning cases there. Within the past decade alone, a small group of attorneys represented more than 20 percent of appeals filed with this court; justices listen closely when hearing these attorneys argue their cases during oral argument phase of cases where one final opportunity exists to influence justices’ votes through oral argumentation.
Of the 66 most active lawyers, 41 had served as Supreme Court clerks – two under Chief Justice Roberts and another as assistant solicitor general. Others attended top law schools where they sought mentors with complementary backgrounds – among them public service.
Advocates representing labor, consumer and civil rights groups have begun using these specialists as well. For instance, this year the Service Employees International Union hired Paul Smith of Jenner & Block to argue a case before the Supreme Court.
Some senior attorneys are alarmed at the rapid expansion of the specialist bar. According to them, now is the time for more diverse clerks and associates working for justices to join their ranks; people of color and women must have equal opportunity to prove their abilities by becoming clerks or associates themselves, according to these senior lawyers.
Number of Cases
In a typical term, the Supreme Court will hear approximately 150 cases – most being appeals from lower federal courts – although occasionally reviewing cases from outside sources as well, including private parties such as corporations and nonprofit organizations, groups representing industry trade associations, academics or industry trade organizations known as amici curiae or individual petitioners for certiorari on behalf of government. Sometimes petitions for certiorari from Solicitor General’s Office on behalf of government are accepted – usually being denied but sometimes granted when important issues that raise too complex an issue than could be handled by lower courts alone.
Supreme Court cases typically involve complex questions of federal law and large amounts of evidence that require experienced advocates to present. The Justices rely heavily on legal briefs submitted by attorneys and other parties involved, while conducting oral arguments during each trial. After they make their decisions, they issue written opinions containing any dissenting views as part of their final written opinion.
Attorneys who appear before the Supreme Court frequently have earned themselves a special reputation among their colleagues and can influence how the Justices vote on particular cases. Once upon a time this power was concentrated within a small number of respected lawyers with clients that could afford costly representation – but now specialized firms seem to dominate Supreme Court casework; leading corporate counsel have expressed alarm at their success.
In interviews, several Justices acknowledged the increasing dominance of specialized Supreme Court bars; however, they did not object to its size, believing effective representation by experienced lawyers helps them decide cases without incurring additional public costs. According to these Justices, litigation agendas shouldn’t detract from legitimacy of court’s decisions.
The graphs below depict individual attorneys and law firms that argued the most cases over time. They combine an attorney’s favorable vote percentages across justices with voting data on those cases argued by each attorney or firm.
Number of Judges
The Supreme Court of the United States stands apart from its fellow branches by being steeped in tradition, yet that doesn’t preclude new ideas or trends from emerging. While its membership has changed, its current nine-member bench has been in place since 1869; Congress determines its size while also creating subordinate courts to hear most federal cases.
It makes sense that the Supreme Court’s elite bar is relatively small, given that each lawyer may argue dozens of cases before them during a single career. Many of them have served as Supreme Court clerks or worked in the Office of Solicitor General (representing federal interests before the high court). Furthermore, these lawyers – comprising 66 of 77 leading advocates studied by Reuters – know exactly how each justice votes and can impact whether your case will or won’t be heard by justices.
While some justices have expressed concerns about the expanding role of specialist bars, others view their influence positively and argue that experienced lawyers are better at getting their client’s appeals heard than other attorneys; moreover, effective representation comes at no additional cost to society.
Although in the minority, conservative federal appeals court judges wield an outsized influence over our highest court. Their influence is one reason President Donald Trump nominated Neil Gorsuch to serve on it – they give him widespread support among conservative justices on the Supreme Court and include his membership of prominent legal organizations such as Duke’s Federalist Society as an undergraduate student and later law school professor – the Federalist Society being one such conservative legal group.
While top attorneys who appear before the Supreme Court tend to win most cases, there may be occasions where justices rule against an attorney due to personal or ideological connections or because his or her case involves complex issues with no clear solution. When this occurs, justices could end up with lower average favorable votes due to one or more unanimous losses in which no votes went in their favor.