The Regulars: Supreme Court Litigation 2015-2016

 

Since 2001 the Supreme Court has written full opinions in 67-75 orally argued cases per Term.  We are certain not to see more than 75 this Term and nowhere near the 151 such cases in the 1982 and 1983 Terms, which were high points for the second half of the 20th century.  With fewer cases, there are fewer opportunities for attorneys to represent parties on the merits in the Supreme Court.  Nonetheless there is a small group of attorneys that dominate Supreme Court practice.  Outside of merits representation, there are ever-increasing numbers of parties filing amicus curiae briefs and this type of representation allows attorneys to engage in cases where they might otherwise not have such an opportunity.

This post looks at the participants in cases already orally argued this Term as well as some of the available data on cases that will be argued later this Term.  In particular it focuses on the attorneys, law firms, and amicus curiae that have dominated Supreme Court participation this Term by participating in more than one case.  With the help of computer guru and 3rd year law USC law student Alexander Kappner, I was able to gather this Term’s data from the Supreme Court’s electronic dockets via the Court’s website.  We used similar code to gather data for a forthcoming paper on the Supreme Court certiorari (and as we found with that paper there may be slight errors attributable to inconsistencies in the Supreme Court’s electronic dockets).

For petitioning attorneys as counsel of record, U.S. Solicitor General Donald Verrilli dominates the pack but not by a large margin.

MostPetAtty.png

While Verrilli is counsel of record as petitioning attorney in four cases, Paul Clement is close behind with three cases.  Jones Day has two attorneys listed – both Michael Carvin and Noel Francisco.  Two other regular participants – Carter Phillips and Chrisopher Landau finish off the list of attorneys that represent more than one petitioner this term.

Next are the attorneys who represent more than one respondent this Term (the respondents’ figures do not include Donald Verrilli or the U.S. Office of Solicitor General because their participation shadows all others due to the regularity with which the national government is haled into Court).

MostRespAtty.png

Paul Clement also leads this list as counsel of record for three respondents.  This list encompasses many regular Supreme Court attorneys as well as representatives for two respondents including Seth Waxman, Neal Kaytal, and David Frederick.  It also includes Texas’ Solicitor General Scott Keller.

The most active law firms are similar to but do not exactly mirror the most active attorneys.

MostPetFirm.png

One interesting facet at first glance is Jones Day’s domination of orally argued petitions this Term with seven (exceeding the six from the United States).  Other regular firms that are not directly derivative of the repeat attorneys include Mayer Brown, Sullivan & Cromwell, and Jenner & Block.  The next figure examines respondent firms.

MostRespFirm

Similar to the petitioner firms, several of the respondent firms including Bancroft PLLC, WilmerHale, Kellogg Huber, and Hogan Lovells make the list because of the repeat attorneys already mentioned (so does the Solicitor General of Texas’ Office).  As with the petitioner firms, Jenner & Block is a repeat respondent firm not covered by the repeat respondent attorneys.

The next figure provides a quick look at the lower courts where more than one orally argued petition arose this Term.

MostLowerCt.png

All of the repeat lower courts are federal courts of appeal.  The circuit with the most cases is, perhaps not surprisingly, also the largest circuit in terms of total population coverage – the Ninth.

The last two figures account for regular amicus players.  In particular some groups file amicus briefs in support of a cert grant before the Court decides to hear a case.  The figures regarding amici focus on those who filed in support of cert in cases granted and orally argued (or that will be orally argued) this Term.  The first looks at attorneys who are counsel of record on more than two such amicus briefs this Term.

MostAmicusAtty

While Donald Verrilli is listed as a representative attorney on ten briefs, William Woodruff Taylor III is counsel on four amicus briefs.  Several of the attorneys on three amicus briefs are also well known Supreme Court practitioners including election law specialist James Bopp Jr.

Several amici filed briefs in support of cert in three or more granted cases well (the figure does not include the thirteen amicus briefs filed by the United States).

AmiciCount

These groups are regulars before the Supreme Court.  Those with four briefs this Term include The Cato Institute, Pacific Legal Foundation, Judicial Watch, and American Center for Law and Justice.  The groups that filed three briefs, including the ACLU, are equally well known.

A lot has happened this Term at the Supreme Court and many of the Court’s decisions are still pending.  This is a Term that appears to be dominated by Paul Clement as an attorney and Jones Day as a firm.  Analyses of past Terms would show many similar individuals and groups.  This pyramid effect where a small group of individuals and firms are regular Supreme Court players appears to be a tradition that will sustain itself at least in the near future.

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Follow me on Twitter: @AdamSFeldman

Updated 4-14-2016

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