Now that the 2015 Supreme Court is complete, it is a perfect time to inspect the case outcomes. My previous post examined the winning attorneys from each oral argument. Many of the attorneys involved are from a small division of firms and groups focused on Supreme Court practice (or from larger firms with specialized appellate practices) and are regular representatives before the Court (colloquially known as the “Supreme Court Bar”). This post takes a much more detailed look at the success of attorneys throughout the Term. I examine all cases that were orally argued using a combination of SCOTUSBlog’s data and data from supremecourt.gov.
First, to clarify how I coded cases: I considered a win when the Court either affirmed or reversed a lower court decision in a party’s favor in an orally argued case. This gives a clear delineation for analytic purposes. While attorneys involved in these cases may construe equally divided votes or rulings vacating lower court decisions (GVRs, etc.) as victories, these do not set precedent in the same way as clear affirmances and reversals and so this defined the threshold for the post (additional information regarding coding can be found at the bottom of the post). I only looked at cases’ merits listings so these analyses do not include cert level work (most of the same individuals and entities involved at the cert level were also involved at the merits level). I also removed attorneys from the United States Office of the Solicitor General (OSG) from most analyses because their participation is often a byproduct of an institutional facet of the federal government that is quite dissimilar from all other attorneys’ participation. With this in mind we can proceed to the analyses.
I split the analysis into three sections: (1) attorneys representing the merits parties, (2) attorneys representing amici, and (3) the combination of both amici and party representation looking at the aggregates across the entire Term.
(1) Merits Party Representatives
I used the Supreme Court docket for each orally argued case to locate the merits party representatives. I first tabulated the attorney(s) listed as party representatives in each docket, including those cases where there was not a clear winning or losing party. This does not necessarily mean the listed attorneys were involved in oral arguments although there is a high correlation between a docket listing (generally the counsels of record on the parties’ merits briefs) and the attorneys that argued before the Supreme Court. The figure below shows all attorneys that represented at least two parties on the merits in orally argued cases during the 2015 Term. It includes OSG attorneys aside from Solicitor General Verrilli who is associated with all OSG dockets.
Paul Clement tops all other attorneys with six cases as a party’s representative. These cases include Federal Energy Regulatory Commission v. Electric Power Supply Association, Franchise Tax Board of California v. Hyatt, Nebraska v. Parker, Hughes v. Talen Energy Marketing, Encino Motorcars v. Navarro, and Zubik v. Burwell. The other attorneys that represented at least four parties this Term were Neal Katyal and David Frederick. Looked at in terms of wins based on representation of merits parties, Paul Clement also tops the list (OSG attorneys are excluded).
This figure includes all attorneys that won more than one case as a party’s representative this Term. Along with Clement’s four wins, three attorneys – Paul Smith, Peter Stris, and Seth Waxman – each won two cases.
The final figure in this section looks at the most successful party representatives of the Term, I limited the figure to attorneys with at least two cases with clear outcomes (affirmed or reversed) that won at least 50% of their cases.
The two most successful attorneys for the Term were Paul Clement and Peter Stris. Stris was on the winning side of the two cases where he was a party’s representative: for Robert Montanile in Montanile v. Board of Trustees and for Greg Manning in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning. Impressively, Paul Clement was successful in 83% or five of the six cases where he represented a party this Term. The only instance where Clement was not on the winning side was when he represented the Electric Power Supply Company against the government in FERC v. EPSA.
(2) Amicus Representation
There are many more Supreme Court amicus representatives each Term than party representatives because of the number of amicus briefs filed in many of the Court’s cases. Some of the same attorneys who are involved in amicus representation also represent parties, although many of the interest groups that file amicus briefs have their own staff attorneys that are well-versed in Supreme Court practice. Following the same trajectory as I did with attorneys, the first figure examines the number of times attorneys were counsel of record on amicus briefs this Term. All attorneys in this figure were representatives in at least four cases.
Elizabeth Wydra from the Constitutional Accountability Center was on the most such briefs with eight. After Wydra several attorneys were listed on five amicus briefs. These include law firm attorneys and Supreme Court regulars such as ex-Solicitor General Seth Waxman as well as Andrew Pincus. They also include other interest group representatives such as Ilya Shapiro from the Cato Institute and Steven Lechner from Mountain States Legal Foundation. Finally, there is a state’s representative, Michigan’s Solicitor General Aaron Lindstrom.
Next I examine the amicus representatives that were on the winning side of the most cases this Term.
As with Paul Clement and merits party representation, the most active amicus representative, Elizabeth Wydra, was also on the side of the most amicus victories this Term. Wydra helped represent six amici on behalf of successful parties. After Wydra there are several attorneys who each represented three amici on the winning side of cases. These attorneys include the above mentioned Aaron Lindstrom as well as West Virginia’s Solicitor General Elbert Lin. This list also includes another former United States Solicitor General, Walter Dellinger, who is now in O’Melveny and Myers appellate practice, as well as American Bar Association President and Locke Lord partner Paulette Brown.
To round out the section on amici representation the last figure presents the success rates of amici representatives across the Term that were on the winning side in at least half of their cases and were on at least three amicus briefs.
A handful of attorneys represented successful amici in every case. These include several of the attorneys mentioned above who participated in three cases. This list also includes Cory Andrews from the Washington Legal Foundation. Elizabeth Wydra was on the successful side in six of the seven decided cases where she was an amicus representative. These successful representations included briefs in Montgomery v. Louisiana, Williams v. Pennsylvania, Fisher v. University of Texas at Austin, Campbell-Ewald Company v. Gomez, Evenwel v. Abbot, and Whole Woman’s Health v. Hellerstedt. Wydra was also on a brief in Friedrichs v. California Teachers’ Association which ended in an equally divided vote.
(3) Cumulative Representation
This final section takes a look at the combination of amicus and party representation for the 2015 Term. Although many of the attorneys were already covered in this post, there are some interesting aspects of attorney success that are clarified by looking at the attorneys’ total representation, which were not uncovered in the prior sections. First, the number of cases where the attorneys participated based on those with at least five cases this Term:
Paul Clement participated in the most cases this Term. His ten cases consist of the representation for six parties and four amici. After Clement come Seth Waxman and Elizabeth Wydra who each represented eight clients before the Court this Term. While Waxman’s representations consist of a mix of parties and amici, Wydra focused solely on amicus representation.
The attorneys with the most cumulative wins clearly line up based on the above figures.
As already mentioned Wydra was successful in six cases. Clement was successful in five including four as a party’s representative and one representing the Urethanes Plaintiffs as amici in Tyson Foods, Inc. v. Bouaphakeo.
The last figure looks at the cumulative success rate of attorneys across the Term. The figure is based on attorneys that participated in at least four cases during the Term and were successful in at least half of them.
The attorney with the highest success rate was Elizabeth Wydra at 86% (six of seven). After Wydra are Seth Waxman and Paul Smith each at 80% success rates (both on the winning side of four of five cases with clear outcomes). Aaron Lindstrom and Kent Scheidegger were successful in 75% of their cases, Clement was successful in 62.5% of his clearly decided cases, Andrew Pincus in 60%, and Carter Phillips in 50%.
Look for a similar post in the coming days focusing on the firms and interest groups behind the representation this Term. I will also soon make the datasets with the information used in the calculations available for public access.
On Twitter: @AdamSFeldman
Additional Case Coding Information:
Cases coded as not providing a winning party include (either due to 4-4 split votes or to decisions vacating the lower court but not ruling in the direction of either party): United States v. Texas, Dollar General Corp. v. Mississippi Band of Choctaw Indians, Hawkins v. Community Bank of Raymore, and Zubik v. Burwell.
Decided cases that were not coded because there were no oral arguments include: Lynch v. Arizona, Johnson v. Lee, Woods v. Etherton Maryland v. Kulbicki, Mullenix v. Luna,White v. Wheeler, Wearry v. Cain, Caetano v. Massachusetts, Amgen Inc. v. Harris, James v. City of Boise, and V.L. v. E.L.
Attorneys involved in multiple dockets for the same consolidated case (e.g. Zubik v. Burwell) were only listed once if they appear in multiple dockets. Attorneys that were unique to one docket in a consolidated case were also included.