The Echo Chamber
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.”
CHIEF’S LEGACY
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.
FAST RISER: Attorney Neal Katyal now runs the Supreme Court practice at the firm where Chief Justice John Roberts once worked. He considers Roberts a mentor. “We’re not where the chief was when he was here,” Katyal said. “But that’s where we want to go.” REUTERS/Gary Cameron
“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?”