The Echo Chamber: A small group of lawyers and its outsized influence at the U.S. Supreme Court

Joan Biskupic, Janet Roberts and John Shiffman, The Echo Chamber: A small group of lawyers and its outsized influence at the U.S. Supreme Court. Reuters Investigates, 8 December 2014. 3-Part series. Part 1, The Elites: “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.” Part 2, The Firms: “The corporate tilt of the court’s specialty bar leaves consumers and workers with a smaller pool of top attorneys.” Part 3, The Advocates: “The key role of arguing before the high court is concentrating in fewer and fewer hands. Many top orators once worked for justices–and some socialize with them, too.”

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….

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….

…[I]ndividuals 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….

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….

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….

David Frederick, a former Supreme Court clerk and assistant solicitor general, is cited by justices and others as the counterbalance to the corporate-focused bar. He often represents individuals in cases against businesses….

Even so, Frederick is just one lawyer handling a handful of Supreme Court cases a year; corporate firms account for more than half of the court’s docket. Frederick also noted that he has represented corporations as well as individuals at the high court.

“Are we a valid alternative?  We certainly could handle responsibly a few more cases,” Frederick said. “But for the large quantity of cases your data reflects, it would not be realistic to call us the alternative.”…

The domination of the Supreme Court docket by firms that commonly represent business interests has a direct, largely unseen effect on consumers seeking to sue corporations: These individuals must select from a much smaller and, in many instances, less successful pool of lawyers to handle their cases.

The reason: Many elite law practices won’t take those cases. The activities of the firms’ corporate clients are so broad, and their concerns so intertwined, that the lawyers point to disqualifying conflicts of interest – some specific, some general.

An elite firm might refuse to represent an individual suing a corporation on a labor issue, for example, because it fears that winning the case could create a precedent that might hurt top clients in other industries….

Law firms have different goals than advocacy groups – profit, for one – but their Supreme Court practices often share an ideological interest in shaping the law for clients. For firms that are most active before the high court, those clients are more often than not corporations….

Advocacy groups have long played an important role in Supreme Court litigation, crafting amicus or “friend of the court” briefs in significant cases. The American Civil Liberties Union and consumer-oriented Public Citizen regularly make such filings.

But perhaps no other national advocacy organization has so embraced the trend toward Supreme Court specialization as the chief American business lobby, the U.S. Chamber of Commerce….

The lobby’s formal effort to use the courts to influence the government can be traced to a 1971 memo sent to a Chamber of Commerce official from Virginia lawyer Lewis F. Powell.

Powell wrote the memo just five months before he became a justice himself. In it, he called on the chamber to create a legal staff to represent business interests before the court. The court’s influence in American life was growing: Civil rights, labor and consumer rights groups were prevailing in the courts – “often at business’ expense,” Powell wrote. “Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business.”…

Supreme Court clerks are so prized that the market-rate signing bonus is $300,000. They are presumed to be among the smartest young lawyers in America. As important is the prestige that comes with such high-profile hires – firm partners say it helps them recruit other lawyers and impress current and prospective clients….

Former clerks also are presumed to have a unique perspective on how the court and the justices operate. Clerks write memos that help the justices decide which cases to accept and which ones to reject. Some firms believe the experience gives clerks insight into how successful petitions are framed – and perhaps how the justices themselves think….

Forty-four percent of all successful petitions filed to the Supreme Court from 2004 through 2012 contained the name of a former clerk….

A Reuters analysis of high court records shows that a group of eight lawyers, all men, accounted for almost 20 percent of all the arguments made before the court by attorneys in private practice during the past decade.

In the decade before, 30 attorneys accounted for that same share.

In this ever more intimate circle, lawyers say, chemistry with the court is key….

In exclusive interviews, many of the justices acknowledge the growing specialization of the Supreme Court bar, and they largely welcome it. They speak glowingly of the repeat performers, explaining that elite lawyers help them understand and sift through complex legal issues….

Charles Ogletree, a professor at Harvard Law School, disagrees. “I think that hearing different voices, from more women and people of color, would change the way the court looked at cases and analyzed them,” Ogletree said….

The connections between justice and lawyer extend beyond the courtroom and into social life…. [W]hile all other federal judges have policies on socializing with lawyers, Lubet [of the Northwestern University Law School] said, the top court does not….

No specific rules govern friendships between justices and those who come before the court. And in the past, the justices have considered their social lives to be largely irrelevant….

Labor, consumer and civil rights advocacy groups traditionally have sought to put forth an attorney who shares their ideology. But they, too, have begun to turn to specialists. For a case this year, the Service Employees International Union hired Paul Smith of Jenner & Block, a former Supreme Court clerk. The union lost, but not as badly as it feared….

Reuters identified about 1,500 Supreme Court petitions filed from 2004 to 2012 in which the interests of companies were arrayed against those of customers, employees or other individuals. Businesses filed 55% of the cases. Elite lawyers filed about one out of seven of all appeals–usually for business. The Elites were three times as likely to appeal on behalf of business: 77% of elite lawyers represented businesses; 23 % of elite lawyers represented individuals. [The Elites were] a big advantage for their business clients: 23% of business petitions were accepted when filed by an elite; 7% of business petitions were accepted when filed by a non-elite lawyer. [The Elites were] a big equalizer for the few individuals able to hire them: 30% of individuals’ petitions were accepted when filed by an elite; 1% of individuals’ petitions were accepted when filed by a non-elite lawyer.