A seemingly innocuous Supreme Courtroom case in 2017 wanting on the slender concern of time bars in school motion lawsuits noticed two giants of Supreme Courtroom advocacy duke it out earlier than the 9 justices. California Public Workers’ Retirement System v. ANZ Securities pit Tom Goldstein of then-named Goldstein and Russell for the Petitioner CALPERS in opposition to Paul Clement, then of Kirkland & Ellis, who argued on behalf of the respondent ANZ Securities. The judgement of the decrease court docket on this case was affirmed by an in depth 5-4 resolution. For the reason that starting of the 2016 time period the mix of Clement and Goldstein’s appearances earlier than the Supreme Courtroom numbered 37 (and Goldstein is now retired from appellate follow). For a Courtroom that solely hears round 60 instances every time period, that is fairly a feat. The Supreme Courtroom has been acknowledged as a court docket that funnels repeat participant attorneys into most argument slots whereas solely often sprinkling in occasional first timers. Because the Courtroom’s docket has shrunk, this domination of oral arguments by a handful of choose attorneys has change into extra pronounced than ever.
Who will get to argue at this Mount Olympus of the American regulation? A number of of probably the most frequent individuals both work within the SG’s (Solicitor Common’s) Workplace (OSG) have labored there, or beforehand held the title of Solicitor Common. This makes intuitive sense for a number of causes. First, they’ve expertise earlier than the justices. Members of the OSG recurrently argue earlier than the Supreme Courtroom and few attorneys have as many alternatives earlier than the justices as do SG attorneys. Attorneys within the OSG are chosen as a result of they’re high notch attorneys who’re properly vetted for these few jobs. The Solicitor Common is often known as the Tenth Justice and was dubbed as such as a result of by means of each common appearances earlier than the justices and work inside authorities administrations, attorneys within the SG (and OSG) get to know concerning the justices in a extra acquainted method than most others. The justices additionally typically defer to the OSG’s experience, particularly when associated to authorities insurance policies and agenda objects. These components, amongst others, clarify why attorneys that go away the OSG are so closely wanted in non-public follow.
A latest instance of that is Michael Dreeben. Dreeben is without doubt one of the few attorneys with greater than 100 appearances earlier than the justices as he served a few years because the Deputy Solicitor Common specializing in prison instances earlier than the Supreme Courtroom. When he left the OSG, it didn’t take lengthy for him to be poached by O’Melveny and Myers inside their Supreme Courtroom and Appellate Litigation Group and White Collar Protection and Company Investigations Observe (Replace 1 (12/11): Dreeben was lately introduced again into authorities follow to help within the case whether or not former President Trump had any immunity from prosecution from crimes dedicated whereas in workplace; Replace 2 (12/15): Dreeben now apparently not works at O’Melveny & Myers). Different OSG attorneys have gone this route in earlier levels of their careers, whereas some like Edwin Kneedler have stayed with the OSG for many years. Kneedler is the fashionable advocate with probably the most oral arguments at roughly 149.
A number of former-SGs now in non-public follow have repeat arguments earlier than the Courtroom on this function, some even arguing a number of occasions earlier than the justices in a time period. A listing of former SGs with vital repeat participant expertise within the non-public sector together with Paul Clement embody Seth Waxman, Gregory Garre, Donald Verrilli, and Ted Olson (who argued on behalf of George W. Bush in Bush v. Gore). Justice Kagan was additionally a former S.G., however she’s clearly moved in a little bit of a special route.
Repeat Gamers
With just a few spots at this higher echelon of Supreme Courtroom follow, how do attorneys get this repeat participant expertise? Together with work within the OSG, some have come from huge agency appellate follow whereas others have honed their expertise in smaller appellate boutiques. Lisa Blatt is an instance of an lawyer each with expertise within the OSG in addition to in giant agency follow at each Arnold & Porter and Williams & Connolly. Blatt has argued 46 instances within the Supreme Courtroom.
Then there are others like Dan Geyser and Peter Stris who’ve minimize their enamel primarily in boutique appellate follow. Geyser now leads the U.S. Supreme Courtroom follow at Haynes and Boone whereas Stris is the managing companion of the Stris Regulation Agency. Each previously labored collectively within the smaller agency atmosphere and each have a number of Supreme Courtroom arguments underneath their belts.
Whereas there are tried and true methods to make it to Supreme Courtroom arguments like working within the OSG, there is no such thing as a one measurement matches all technique to get there. Blatt, Geyser, and Stris all have a number of arguments within the interval examined on this publish.
The information on this publish include all arguments between the 2016 Time period and the primary half of the present 2023 Time period. The attorneys with probably the most expertise outdoors of the OSG (these not at present working for the OSG however who could have up to now) are proven within the graph under.
The already talked about Lisa Blatt and Dan Geyser are each coated on this graph – Geyser with 15 arguments throughout this era and Blatt with 13. Paul Clement and one other former SG, Neal Katyal (Katyal was the Performing SG) have probably the most arguments of the group with Clement at 30 and Katyal at 22 because the starting of the 2016 Time period. Subsequent up, Kannon Shanmugam labored within the OSG and at present manages Paul Weiss’ Supreme Courtroom Observe whereas Jeffrey Fisher co-directs Stanford Regulation Faculty’s Supreme Courtroom Litigation Clinic and can also be Particular Counsel for O’Melveny & Myers. A number of different people on the record run Supreme Courtroom and Appellate practices in giant companies as properly. Two former Texas SGs, Judd Stone and Scott Keller additionally make this record.
Shifting down the ladder to attorneys outdoors of the OSG with 4 to 6 arguments throughout this era we see the next:
Roman Martinez was previously within the OSG and now’s a companion at Latham & Watkins whereas Donald Verrilli was a former SG earlier than transferring to the agency Munger Tolles because the founding father of its Washington D.C. Workplace. Peter Stris is roofed on this graph in addition to a number of attorneys who labored in state SG’s workplaces.
The following graph tracks lawyer expertise within the Supreme Courtroom from the OSG’s throughout this era.
Attorneys with expertise from a number of administrations have probably the most arguments. These embody Malcolm Stewart, Eric Feigin, and Edwin Kneedler amongst others. There are additionally SGs and energetic SGs like Elizabeth Prelogar, Noel Francisco, Jeff Wall, and Ian Gershengorn. Beforehand talked about Michael Dreeben is on this graph with eight arguments throughout this era for the OSG earlier than leaving for personal follow. Roman Martinez had an argument for the OSG earlier than leaving for personal follow.
Concluding Ideas
In Vidal v. Elster, a case argued in November of the current time period, Chief Justice Roberts concluded the arguments praising authorities lawyer Malcolm Stewart:
“Thanks, Mr. Stewart. Should you’ll linger on the podium only for a second. Our data replicate that that is your or was your one hundredth argument earlier than the Courtroom. You’re the fourth particular person to succeed in this uncommon milestone this century. All through your profession, you’ve gotten persistently advocated positions on behalf of america in an exemplary method. I recall one case specifically from my days in non-public follow 23 years in the past during which I used to be counsel for petitioner and also you argued in assist of respondent. Now, when the opinion got here down, I used to be simply 9 votes in need of a unanimous end result — (Laughter.) — for – for my consumer. On behalf of the Courtroom, I prolong to you our appreciation in your advocacy earlier than the Courtroom and devoted service as an officer of this Courtroom. We look ahead to listening to from you a lot extra occasions.”
Stewart is now on this distinctive and even smaller group of attorneys with 100 or extra arguments. Will this group get bigger? Probably over time. Attorneys like Stewart who linger within the OSG for years are the most definitely candidates. Some like Clement who’ve a mixture of huge agency and OSG expertise may as properly. Alternatively, because the variety of oral arguments per time period continues to dwindle, there will likely be fewer alternatives to get there on a term-by-term foundation. Reaching this high-water mark of arguments will solely be doable now with this continued and rising norm of repeat gamers getting a number of arguments earlier than the Courtroom.
One may inquire if this repeat participant pattern is an effective or a foul factor for Supreme Courtroom follow. In actuality it’s a little bit of each and why it is likely to be a good suggestion for repeat participant and non-repeat participant attorneys to co-counsel in some instances. Attorneys with non-Supreme Courtroom experience in all probability have extra case particular and regional data relying on the place the details of the case arose. Attorneys with Supreme Courtroom expertise have already got a way of argue earlier than the justices, what the justices search for, and maintain the justices . Some attorneys arguing within the Supreme Courtroom for the primary time have discovered the laborious manner the significance of sustaining the justices’ focuses. Expertise earlier than the justices does appear to be the important thing for getting again into Supreme Courtroom arguments. After that it seems to be the reward that retains on giving.
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Information for this publish was gathered from the Supreme Courtroom’s web site and from Oyez.org
Word: The counts for when attorneys had been within the OSG versus non-public follow may have adjusting for intervals the place attorneys moved from the OSG to personal follow.
Appendix
Adam Feldman runs the litigation consulting firm Optimized Authorized Options LLC. For extra info write Adam at adam@feldmannet.com. Discover him on Twitter @AdamSFeldman and on LinkedIn right here.
