Posted by: Patrick Allen Foster | October 17, 2013

The Scalia Interview and the Supreme Court Bar

Antonin Scalia 2010

So, Justice Scalia gave an interview to New York Magazine early last week. As Anderson says, the interview is worth a read — or you can read a selection of highlights here. Among others, Will Baude at Volokh and Patterico have posts excerpting and commenting on segments of the interview.

In some sections of the blogosphere, attention has focused on one part of the interview where Scalia discusses his belief in the Devil. I don’t find those passages to be especially revealing or shocking, in all honesty — mildly interesting, perhaps, but nothing Earth-shattering. Much more interesting are Scalia’s observations on the advocates who have come before the Supreme Court during his tenure. Example (emphasis added):

Another change is that many of the states have adopted a new office of solicitor general, so that the people who come to argue from the states are people who know how to conduct appellate argument. In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.

Ann Althouse notes this answer and then asks:

Who, specifically, do you think he might have been talking about there? I’ll tell you who I thought of when I read that: Roger A. Tellinghuisen, the Attorney General for the state of South Dakota, whose argument in South Dakota v. Dole — the key case about Congress’s power to attach conditions to spending — threw away an important point of law that could have limited the spending power. For years, when I teach that case, I’ve urged students to listen to that argument as a lesson in what not to do.

Tellinghuisen was only prepared to talk about the 21st Amendment as a limit on the Spending Power. There’s an argument in an amicus brief from the National Conference of State Legislatures that O’Connor pushes Tellinghuisen to use, about how related the condition needs to be to the spending, and Tellinghuisen says he’s “not prepared to argue that particular fine point.” His case is about a condition that relates to the sale of liquor, so he’s all about the amendment that preserves state legislative power in that area, as if all that matters is winning this particular case — which he didn’t — and not about the doctrine that will apply to many other cases in the future.

On one level, the rise of solicitor general offices in a number of states, led and staffed by dedicated and skilled appellate attorneys, is part of the evolution of the modern Supreme Court bar — a process that has led to a relatively small number of repeat advocates handling most of the cases that come before the Court. One can find any number of articles and posts on this topic — for example, this very good post at Prison Law Blog. Or, back in 2010, Adam Liptak wrote this article for the New York Times, which is not a bad place to start:

Thirty years ago, 6 percent of cases accepted by the court were brought by lawyers specializing in Supreme Court advocacy, according to data compiled by Richard J. Lazarus, a law professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute.

In the term that ended in 2008, the number topped 50 percent for the first time. Many of the cases involved businesses that paid large fees, but a good number were for clients who could not afford a lawyer and have historically been represented, if at all, by public interest lawyers.

This small group of Supreme Court specialists — overwhelmingly male and dominated by former US solicitors general and former SCOTUS clerks — compete for cases that are headed to the Supreme Court or appear likely to be headed that way; they scour cases working their way through the US Courts of Appeals and the state appellate courts, looking for developing circuit splits and other cases that seem likely to support a granted cert petition. When impecunious criminal defendants and immigrants facing deportation have cases that look likely to go to SCOTUS, these specialists will offer to handle briefing and oral argument pro bono — so that they gain additional experience before the high court and can advertise that experience to paying corporate clients.

Again, Liptak:

Starting in 2004, leading law schools created student clinics focused solely on the court, all affiliated with prominent law firms. The result has been an intense struggle to find and press cases with Supreme Court potential.

Law firms trying to build or maintain credible Supreme Court practices must show paying clients that they have a consistent presence in the court, and law school clinics have to provide work to the students. Separately and in combination, firms and clinics offer their services free to poor clients in exchange for taking a lead role in the case. That means people with legal troubles but no money can end up with a top-tier lawyer with deep experience before the court.

(BTW, is there anything quite so pretentiously optimistic for a law student as taking a clinic class that focuses solely on practice before SCOTUS? An appellate advocacy clinic I could understand, but to say, as a 3L, that you are going to specialize in Supreme Court work… that seems strange to me.)

It will probably surprise no one to hear that I have mixed thoughts about the trend toward a smaller and more exclusive Supreme Court bar. On the one hand, perhaps the Supreme Court specialists do have skills that allow them, on average, to achieve better outcomes than other attorneys arguing cases before SCOTUS. On the other hand, I don’t really see why an otherwise trained and prepared appellate advocate cannot be coached in those skills that are particular to SCOTUS argument. On the still another hand, the paramount concern must, must, must be the best interests of the client — and to whatever extent a Supreme Court specialist increases the chances of a favorable outcome for the client in the litigation, then the specialist is to be preferred to another attorney, even the attorney who, for example, handled the case before the court of appeals or the state supreme court. On another hand, when one attorney has been dealing with the case in the lower courts, and is therefore intimately familiar with the facts of the case and with the arguments and precedents that came up before the lower appellate court(s), I wonder whether something is lost by handing the case over to a different attorney, even a specialist.

I know that if I had handled a case in federal District Court and then in the Court of Appeals, sometimes for years, and often through multiple rounds of appeals and remands, and the case was headed to the United States Supreme Court, and then, at that point, a Supreme Court specialist with no prior involvement with the case swooped in to do the oral arguments — my feathers would be ruffled, I’ll admit. Stepping outside my own perspective for a moment, though, I recognize that this is a reaction based on wounded pride, envy, and resentment by a member of the Great Unwashed.

And, of course, the main question, the only question, really, has to be: what is best for the client? (I really can’t stress this point enough.)

So, does having a Supreme Court specialist handle the case before SCOTUS make a difference? FWIW, in a post commenting on the above Liptak article, the Volokh Conspiracy’s Orin Kerr expresses a number of considered opinions and observations:

In my experience, it is usually true that Supreme Court specialists do a significantly better job presenting issues to the Justices than do the lawyers who had the case at trial. Exceptions exist, of course. But on average, the Supreme Court specialists are much better at getting cert granted; they have a better sense of what arguments will work with the Justices; they see arguments the lawyers from the trial are less likely to see; and they’re usually simply better appellate lawyers. They’re also much cheaper, as they work for free. So on average, the free help offered by Supreme Court specialists is an exceedingly good thing for the clients who are represented.

Prof. Kerr also has this post from 2007 on “unsophisticated” clients and Supreme Court practice:

There are many Supreme Court lawyers eager to help out for free on viable cases (or better yet, granted cases), so I think the role of resources is actually smaller at the Supreme Court than elsewhere. But the most sophisticated clients know that Supreme Court advocacy is a weird art, and that you often get better results when you have a trained artist helping you out. This isn’t always true, obviously, and to be clear I don’t think it’s is a good thing. But for better or worse it’s often the case. So the most sophisticated clients will pick their lawyers carefully and will aim for experienced counsel with a deep understanding of the Supreme Court. Unsophisticated clients are less likely to realize this, and their interests sometimes suffer as a result.

I would guess that’s the major problem in criminal defense cases. Lazarus states…that criminal defense lawyers sometimes decline assistance from Supreme Court experts, preferring to “go it alone,” and that this can lead to a major gap in advocacy quality between the government and the defense. But the underlying problem is that the clients will tend not to know any better. A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn’t likely to be a specialist in appellate practice. He isn’t likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.

One point is worth unpacking a little. In some cases, the Supreme Court specialists only helicopter in after a case has been granted cert — after the cert briefs. In a guest post at Volokh, Prof. Lazarus (quoted in the Liptak article) notes: “Most of the significant pro bono work is done only after the Court has granted review, which limits its ultimate effectiveness.” In another post, he says that “the impact of the advocate is greater at the cert stage than on the merits.” The cert briefs not only determine whether a case receives review; they also frame the case and determine the scope and shape of the questions to be decided by the Court. The Supreme Court specialists who show up after the Court has granted cert strike me as a bit like reinforcements that show up when the battle is half over (and then get to claim a lion’s share of the credit and publicity when the battle is finished).

Another point that Prof. Kerr makes:

One of the problematic aspects of the competition for Supreme Court cases is that the public attention focuses almost exclusively on the oral argument. The press covers oral arguments, not briefs, and lawyers are known for how many arguments they gave rather than how many briefs they wrote. This tends to create an unfortunate dynamic, I think. Supreme Court specialists usually want the argument, and lawyers who had the case below often decide to go it alone (even rejecting free help on the brief) to make absolutely sure they’ll keep the argument. Given that the written briefs are far more important than the oral arguments, that can lead to briefs that are less strong than they could be and cases that aren’t presented to the Justices as well as they should be. I don’t know if it’s possible to change that — everyone knows who made the argument, while it can be harder to figure out who really wrote a brief — but I think it would be better for the law if there were more prestige and attention associated with briefwriting than oral argument.

Oral argument is the fun part of Supreme Court practice. It’s like flying a fighter plane: lots of people work to build the plane (shepherd the case through lower courts) and get it ready for take-off (contribute to the briefs), but in the end only one person gets to sit in the cockpit. BTW, my sense is that oral argument actually matters less at the Supreme Court than before the courts of appeals or before trial judges. The SCOTUS justices, as a rule, are better prepared before oral arguments than many judges on lower courts. SCOTUS justices usually have access to amicus briefs, and of course the case has already been briefed at least twice (cert stage briefs, then merits stage briefs) before anyone steps into the courtroom. The justices hear fewer cases than their colleagues on the lower courts, and they have the assistance of top notch law clerks. I have to imagine that oral argument is more important before a court of appeals panel, where the overworked judges may have just skimmed your brief before arguments, than before the Nine.

I understand that Supreme Court practice is, in Kerr’s words, “a weird art.” Precedent works differently, and the Court is ultimately bound largely by its own sense of stare decisis, for example. But is it really such a weird art — such a strange beast — that an appellate advocate with experience before courts of appeals cannot be trained and prepared for the SCOTUS appearance? Law schools and other groups, for example, sometimes hold moot courts for attorneys preparing to appear before SCOTUS. The law school clinics and pro bono attorneys can assist in researching, writing, and revising briefs. The specialists can advise the attorney on what sort of questions the justices might ask and what types of arguments are likley to sway Justice Kennedy (or some other justice — but let’s be honest, these days you’re probably trying to convince Kennedy).

Anyway, those are just the grumblings of one more member of the Great Unwashed.

In the particular case of state AGs (and the point in Scalia’s interview that started this), it’s worth keeping in mind that the job of Attorney General, in most states, is one that selects for two skill sets: political skills and management skills. Appellate advocacy is not a skill that an AG necessarily needs to get the job, or one that he or she is likely to keep sharp while running an executive department (and usually preparing to run for governor).

Lots of other good bits in the Scalia interview — recommended reading.

Image Credit: Justice Scalia testifying before a subcommittee of the House Judiciary Committee. Photo by Stephen Masker, May 2010, used under a CC BY 2.0 license. Source: Wikimedia Commons.

Update (Fri., Oct. 18, 2013, 7:55 PM): Tom Freeland, a Mississippi attorney who blogs as NMissCommentator, has a good comment on this topic at Anderson’s blog.

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Responses

  1. If I’m reading you correctly – it’s Friday afternoon, n.b. – the real divide is between trial and appellate lawyers, not between SCOTUS lawyers and the rest of us. I strongly agree. Any good appellate advocate not only *can* get his case ready for the Supreme Court, but will also be pretty hyped about doing so.

    • It was pretty late when I finished this post, so I may have been unclear. Also, some of the posts I linked to are unclear on the distinction (Orin Kerr in particular keeps contrasting “Supreme Court specialists” with “the trial attorney).

      Trial practice and appellate practice are very different beasts. I know some excellent trial attorneys who strenuously avoid appellate work. (And a colleague who was one year behind me in law school has built a solo practice as an appellate attorney by taking the appeals of some of those trial lawyers.) And there are some excellent appellate attorneys who would not shine in trial court. Trial practice and appellate practice require different skill sets — overlapping in some areas, obviously, but still distinguishable.

      My point in OP was that there are Supreme Court specialists (and others, like Prof. Kerr, I gather) who believe that Supreme Court appellate practice is a different beast from all other appellate practice, and is so different that a different set of specialists is called for. I think you can tell that I am skeptical of that claim. But I am trying to be objective.

      My instinct is that you are correct: Any good appellate advocate can get his or her case ready for the Supreme Court, and with appropriate moot court practice, coaching, research, and advice, can shine as well as these vaunted specialists who swoop in at the last minute and have never touched the case before. But I don’t take my instinct for proof. (I am inclined, though, to trust the judgments of those, such as you, Anderson, who have considerably more appellate experience than I.)

    • Another thought: in some contexts, it is to be expected that the trial lawyer and the appellate lawyer are different persons. In habeas cases, for example, or post-conviction relief appeals, one of the regular arguments is ineffective assistance of counsel by the trial lawyer — so a different lawyer handles the appeal as a matter of course.

    • I’ve worked on appeals with trial lawyers, and it’s just painful sometimes to watch them attempting to “retry” the case on appeal at oral argument. There are always going to be some lawyers who excel at everything they do, just like Willie Mosconi could run a table with a broomstick if he needed to, but they are not as common as some lawyers imagine themselves to be. (And as someone who’s worked 10 years without trying a case, I have no reason to imagine I’d be any good at that!)

  2. Making bold to venture a comment on this to two practicing lawyers.

    I think a good appellate lawyer, with appropriate assistance in moot court etc, could generally do a perfectly competent job before the Sup Ct. Could he or she do as good a job as a “Supreme Court specialist”? Probably. But the answer depends partly on *which* Sup Ct specialist you compare the appellate lawyer to, which brings me to the next pt.

    There are actually (or arguably, at any rate) *two* Sup Ct bars, not just one, even though Scalia refers only to one Sup Ct bar in his interview. There’s a group of Sup Ct specialists, mostly connected w big DC firms (and some in Sup Ct boutique firms, such as the small firm that also runs the SCOTUS blog — can’t remember their name offhand). Then, within that group of Sup Ct specialists, which I wd venture — as a completely ignorant guess — consists of maybe at most 50 people, but probably fewer (30? 35? 40?) — there’s another, smaller group of genuine Sup Ct stars. These are people who have argued *many* Sup Ct cases and are just amazingly good at it. John Roberts was the best exemplar of this smaller group before he was appointed a judge. It consists of a few people, maybe 10 or so at any one time, I wd guess; they are sometimes former US solicitors general, e.g. Paul Clement or, in a few cases, con law profs (Tribe, e.g.).

    A good appellate lawyer is probably not going to be quite as good before the Sup Ct as one of the people in this smaller group, b.c no one is as good as they are at what they do. I can’t prove that, but I think it’s a reasonable proposition. It doesn’t undercut the main pt of the OP inasmuch as the chance of getting one of these 10 or so superstars on a given case is small.

    • You may be on to something, LFC. Challenges to evaluating your hypothesis include (1) the small sample size involved, and (2) the difficulty of creating an objective or quantitative scale to compare SCOTUS advocates.

      I think there have been a handful of superstars in every generation — John W. Davis in the first half of the 20th century comes to mind. I might add Ted Olson to your list. I number of superstars, like John Roberts and Thurgood Marshall, get taken out of the game early by being elevated to the bench.

      the chance of getting one of these 10 or so superstars on a given case is small

      Indeed.

  3. Yes, Ted Olson. Wd have mentioned him but drew a temporary blank on his last name. (Sigh.)


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