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Elite circle of lawyers finds repeat success getting cases to the Supreme Court

December 9, 2014 at 6:35 PM EST
Cases that make it to the Supreme Court are often argued by a relatively tight circle of lawyers who are well-known to the justices, and more likely to share educational backgrounds and private firm pedigrees. Reuters examined 17,000 filed petitions, uncovering an unusually insular world at the nation's top court. Reuters legal editor Joan Biskupic joins Gwen Ifill to discuss the findings.
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GWEN IFILL: The Supreme Court today ruled against Amazon warehouse workers who argued that they should be paid for the extra time it takes them to be screened at the end of the workday.

Cases like this are often argued by a relatively tight circle of lawyers who are well-known to the justices and are more likely to share the same education and private firm pedigrees.

Reuters looked at 17,000 petitions filed with the court to try to put numbers to that conclusion, and uncovered an unusually insular legal world at work at the nation’s top court.

Reuters legal editor Joan Biskupic joins us to detail the findings.

Joan, start by telling us, exactly what does it take to become a lawyer who argues at the court?

JOAN BISKUPIC, Legal Affairs Editor in Charge, Reuters: Well, you can be admitted to the Supreme Court bar just by virtue of being a lawyer anywhere out in the country.

But for this tight group, it’s these repeat performers, they’re people who have come up mostly as perhaps Supreme Court law clerks themselves, worked behind the scenes, worked for the prestigious Office of the Solicitor General. Those are the people who are dominating now.

But, generally speaking, anyone who’s a lawyer who’s admitted to the Supreme Court bar, which literally would cover thousands, tens of thousands out in America, can argue. It’s just that we have found is that, more and more, clients are turning to this select group. And the justices themselves seem to be signaling that they’re interested not just in the merits of a case that is presented to them, but the merits of the lawyering, just because of what the data have shown.

GWEN IFILL: So, you narrowed it down literally to the elite eight?

JOAN BISKUPIC: Oh, yes, in terms of people who argue.

GWEN IFILL: Right.

JOAN BISKUPIC: In terms of people who are very successful getting their petitions heard, we went from 17,000 to 66.

But then we went to these big eight before the big nine, people who — get this, Gwen — over the last decade, these eight had 20 percent of the cases. In the previous decade, it took 30 lawyers to have 20 percent of the cases. That’s how much it has contracted.

GWEN IFILL: Now, probably anyone who follows the court assumes there’s a unique group of people who have risen to the level where they can argue before the Supreme Court.

JOAN BISKUPIC: Right.

GWEN IFILL: And it’s not terribly surprising. But is there something — is it a self-fulfilling prophecy, which is, if you find somebody who knows how to argue before the court, they are more likely to get hired?

JOAN BISKUPIC: I think so.

And what we have found is that it’s very reinforcing. The justices look for — the people who are getting the cases are people who have been there before. They advertise their numbers on their Web sites. They pitch themselves to clients that way.

In fact, Paul Clement, who won the case that you referred to at the outset, that was his 75th argument before the court.

GWEN IFILL: Wow.

JOAN BISKUPIC: And what he has in common with this narrow core is that he had been a Supreme Court law clerk to Justice Scalia and that he had been U.S. solicitor general.

Now, of our 66, I think 25 had worked in the Solicitor General’s Office.

 

GWEN IFILL: So, what harm does that do to have the people who are the most experienced do the most work?

JOAN BISKUPIC: Well, it’s not just that they’re most experienced. It’s that they have with corporate identifications.

Of the 66 who are most successful at getting their petitions accepted, 51 had ties to corporate America. And if you’re in a corporate law firm, you’re going to represent big business. And you would have conflicts of interest not to represent individuals, employees with grievances, consumers, for example.

GWEN IFILL: When the justices sit on the bench and look out at these folks arguing before them, do they see themselves, pretty much?

JOAN BISKUPIC: In some ways.

Chief Justice John Roberts was once a member of this star appellate bar. He had argued 39 cases before the justices. And several people who appear before are kind of models of him. In fact, they want to be models of him.

GWEN IFILL: Now, you talked to eight of the nine justices about this.

JOAN BISKUPIC: Yes.

GWEN IFILL: Did they say, yes, it’s a problem, we wish we could fix it, or they see no problem whatsoever?

JOAN BISKUPIC: No. No.

In fact, what they say — I went to the more liberal justices first, thinking that maybe they would be a little concerned about the lack of diversity, broad diversity before them. And they weren’t. They said, what we want are experienced counsel. That’s what really matters to us.

And they said, look, the corporate tilt could be countered by lawyers who might represent — be in the law school clinics and help out for individuals. But then, when we talked to people in the law school clinics, they said, you know, we can only do so much. And…

GWEN IFILL: Well, that’s the question.

JOAN BISKUPIC: Yes. Yes.

GWEN IFILL: For instance, you talk about the case that Paul Clement won today. That — workers, labor on the other side of it, do they have access also to attorneys who represent those kinds of interests against the corporate interests? Is it a fair fight?

JOAN BISKUPIC: Well, do you know that labor, as a matter of fact, this year for the first time went to an outside counsel in some way — in a case that was argued earlier this year — in part, I think, because of this trend, thinking, let’s not just stick with people in the trenches, let’s maybe go to lawyers who might speak the language of the justices.

But then that could disproportionately favor, again, certain lawyers and certain clients.

GWEN IFILL: So when you say it’s a corporate tilt, is it a corporate tilt because of who they represent or because of the nature of the law firms they come from?

JOAN BISKUPIC: Both.

Now, first of all, I want to say that, certainly, the predilection of the Roberts court have been documented as, in some ways, favoring corporate America. So it’s kind of reinforcing that way. It’s that they come from corporate law firms, so they’re bound to be representing more big business than the little guys, so to speak, you know, employees.

As I said, 51 of the 66 were from there. So you have that. And then, again, they would be precluded. There more familiar lawyers who would be sort of more on the radar, the justices’ radar screen, would not be able to take the other kinds of cases.

GWEN IFILL: Is it a vicious circle? And does anybody even want to break it? Does anybody see this as a problem enough to reform it in any way?

JOAN BISKUPIC: Well, this is — critics.

You know, remember Michael Luttig? He was a judge on the Fourth Circuit. A lot of people knew of him. He’s now general counsel at Boeing. And he was a former — he is a former Supreme Court law clerk. And he said, you know, what we have is a very narrow conversation going on now, with a lot of elite lawyers appearing before elite judges, and kind of just not having the broadest policy — policy discussion that would be more helpful to America.

GWEN IFILL: It’s a very interesting way of looking at the court.

Joan Biskupic, thanks for taking this look.

JOAN BISKUPIC: Thanks, Gwen.

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