The Bar Rises: Elite Supreme Court Advocacy

Richard Lazarus has a marvelously interesting article uploaded onto Social Science Research Network this week about the role that a few elite lawyers are playing on the law by being advocates, both in briefs and in oral arguments, before the Supreme Court repeatedly.

You can download the article here . Fair warning: it's 99 pages long, but it's quite readable and actually very interesting. Go ahead and skip the charts.

Anyway, Lazarus' point is that we have a few lawyers (call it maybe fifty, tops, out of the almost quarter-million admitted to the Supreme Court Bar) who appear again and again before the Supreme Court, and they're winning again and again, which means that clients are starting to want to hire them more and more often.

Why do you care? Because trust me, you do.

Let me ask you a question - who can afford the best advocates before the Supreme Court?

Answer: conservative interests, especially business interests.

So, when Plutonium Page explodes on the front page of Big Orange because ExxonMobil has convinced SCOTUS to hear a case on punitive damages , you have to realize that Lazarus' point is that the reason this case has been heard is because the elite Supreme Court Bar has been repeatedly advocating that there is a constitutional basis for setting aside high punitive damages from state courts.

When we're stunned by the erosion of antitrust law in the last ten years (assuming you're paying enough attention to BE stunned), Lazarus points out that in the ten antitrust cases heard since 1980, elite Supreme Court Bar have represented defendants petitioning for Supreme Court review in nine of them - and, strangely enough, businesses fighting an antitrust ruling against them have won in nine cases. Guess which nine. (You don't have to: the nine where the elite Bar members argued were the nine that businesses won).

Lazarus argues that it is the responsibility of these Elite bar members to spread the wealth, as it were, and ensure that their expertise is available to all parties. Don't get me wrong; a lot of these lawyers take on a lot of pro bono cases before the Supreme Court, and regard these cases as the bread and butter of their practices - the business cases are just to pay the bills. But let's face it - pro-consumer advocates just can't muster the same kind of firepower before the Court that pro-business interests can. Even if we set aside the questions of conflicts of interest, do you really think an advocate is going to throw away his credibility before the Court by appearing as a pro-consumer advocate one week, and then a pro-business advocate arguing just the opposite propositions in a different case the next week?

But the economics of the situation argue against the advocates spreading the wealth. There is, of course, the question of paying the bills. Just because you're a successful attorney with a highly lucrative Supreme Court practice doesn't mean you don't have to make ends meet. Certainly these guys could afford to live more simply than they do, but you still have to keep the lights on and the freezer stocked.

There's also the question of legal ethics. If a lawyer knows that they are the best man for the job, all factors considered (including the lawyer's case load, possible conflicts, and the client's ability to pay), can the lawyer send them down the road to a less-capable attorney? ABA Model Rule of Professional Conduct 1.1 demands that lawyers provide "competent" representation, and I'm not convinced that a state bar wouldn't find that a lawyer had been incompetent by refusing to take a case for which they were uniquely qualified, on the grounds that "someone else should get a turn."

Another question: Can the client tolerate anything less than the best they can afford? In other words, if the best lawyer WILL take a case, how does it make any sense for the client to want anything less?

No, the incentives of the system as they're constituted destroy any hope of ensuring equity of advocacy in anything other than an ad-hoc basis.

Solution: change the incentives of the system. Some of you know that I am a liberal because I am a free-marketeer; that I believe in the power of markets as theoretically constructed to ensure equitable distribution of resources; and that the role of government has to be to ensure that markets function as close to their theoretical construction as possible, which means maximizing the information and the leverage of the individual consumer, and is necessary acting as a super-consumer (shoving the invisible hand).

So, let's fix the market. How do we do that? Lazarus has a couple of possible solutions, including having the Court appoint elite Bar advocates for indigent criminal defendants and increasing Supreme Court clinics. Certainly I'd love to see a Supreme Court clinic at Alabama, and I'd sign up for it in about a heartbeat and a half. But I don't think it's the answer. The answer has to be to drastically increase the size of the elite Bar - get more lawyers before the Court more often.

So, how do we do that? Really, the only answer that works (and the Court will hate this solution, assuming it takes notice of such a pedestrian thing as what I have to say) is for the Court to grant more divided oral arguments. Without waxing too eloquent on the power of Supreme Court oral argument to shape lawyers, the more lawyers that appear before the Supreme Court, the more likely it is that lawyers who've never appeared before the Court will show up. So, when the Court grants an amicus curiae the right to appear in oral argument, the more likely it is that some new lawyer will show up, with hay still in his hair and a weather-beaten briefcase. Not really, of course; even the most inexperienced Supreme Court advocates fly in these days, and almost no one would be so dumb as to ride into Washington in a hayrick.

But the Court will hate this, because it creates more work for them. To which I say: Good! The Court's docket has been declining for years, and while I respect that the majority of the Court have been declining in intellectual capabilities , I am not particularly impressed by the argument that dumb people on the Court shouldn't have to work as hard.

'Scuse me while I pull my tongue from my cheek. My point is this: There is no excuse for the Court to hear as little as it does. If letting amici argue orally makes the Court work harder, or spend less time focussing on the claims of particular parties and spend more time on the policy bases of legal claims - that is no bad thing. And it is, I think, the only way to build the system so as to encourage more lawyers to get Supreme Court experience without unfairly prejudicing the parties.