Monday, September 25, 2017
As we get closer to the start of the Supreme Court's October 2017 term, it is time to think once again about the lawyers that we will likely see before the Court. Undoubtedly veteran Supreme Court advocates like Paul Clement and Neal Katyal will make an appearance. As the National Law Journal recently reported, Clement is set to argue a set of important labor cases. And as Jennifer noted earlier this week, we will certainly see Noel Francisco, the newly confirmed Solicitor General, before the Court this term. Francisco has successfully argued three cases before the Court.
Is the existence of a veteran Supreme Court Bar a good thing? In a recent talk to students at the University of Wisconsin Law School, Justice Elena Kagan complimented the Supreme Court Bar, noting that it is "'pretty much a nightmare'" to argue before the high court, but that Supreme Court Bar is of "'extremely high caliber.'" She praised the veteran advocates for knowing what the Court likes.
It is undisputed that arguing before the Court can be a difficult venture. The late-Justice Antonin Scalia has been credited for changing oral argument, especially with respect to the number of questions asked. As Justice Kagan explain to the Wisconsin law students,
"It's very rapid fire. You have to have really thought through stuff before you get to the podium. Often the justices aren’t really asking you questions; they don’t really care about the answers you give. They're making points to their colleagues. I say this not in a pejorative way. I do it all the time, and I think it's actually an important part of the process that we're talking with each other up there. But it makes it extremely hard for the lawyers who want to occasionally interject at some point. It's a good thing to realize so let's give these people a little bit of a break."
While Justice Kagan is supportive of the Supreme Court Bar, not everyone agrees. In reporting on Justice Kagan's talk, Marcia Coyle of the Legal Times noted that a 2008 Reuters investigation "said the repeated appearance of the same advocates '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.'"
Despite legal scholars' criticism of the Supreme Court Bar, there is evidence that hiring a veteran litigator increases your chance of success. Perhaps it is a self-fulfilling prophecy, but is likely one that is here to stay.