The top Supreme Court litigators from this past Term were composed of a group of well-known names within circles that track cases moving through the Court. Examining these attorneys, however, only conveys part of the story of the actors involved in this litigation. From the perspective of the client representation there is a structure that goes deeper than the attorney. This structure is made up of the law firms or interest groups where the attorneys are employed (in this post I use the term “firms” to refer generally to business entities that group attorneys together). The firms or groups provide the support structure that helps make such high stakes litigation feasible. Case preparation is not the task of any one individual in a firm and in most instances the work of multiple attorneys is necessary to prepare a successful case. Over a half-century ago Justice Robert Jackson wrote,
“it is a grave mistake to choose counsel for some supposed influence or
the enchantment of political reputation, and, above all, avoid the lawyer
who thinks he is so impressively eminent that he need give no time to
preparation except while he is on a plane going to Washington. Believe
me when I say that what impresses the Court is a lawyer’s argument,
not his eminence.”
This maxim is still clear today as prized litigators are only as successful as their support structures. While there are similarities between the most successful attorneys and firms there are also notable differences. Successful firms do not necessarily depend on one attorney and so a team of well-seasoned Supreme Court litigators may lead to a stronger overall firm practice than one highly respected litigator. The analysis that follows takes the same form as my previous analysis of attorneys in that it is split between party, amicus, and overall representation. All coding rules are on the bottom which help clarify what I labeled as a winning or successful outcome. One important point of note though has to do with the firm or firms I associated with each party or amici: the listing parallels the firm listed on the Supreme Court’s case docket.
One other aspect of this post worth mentioning differentiates this piece from Tony Mauro’s law.com article on the most dominant SCOTUS firms this Term: my unit of analysis is not oral arguments but listings on the Supreme Court docket and this leads to substantially different findings. While the law.com article focuses on the number of times the firms’ attorneys participated in oral argument my analysis accounts for the firms on the briefs. For an example of how this leads to different results, the law.com piece lists Bancroft PLLC as the most dominant firm this Term with eight oral arguments. In my count for party representation the same firm accounts for lead counsel for a merits party in seven cases. The discrepancy between the two has to do with Erin Murphy’s oral argument as an amicus in United States v. Texas, which factored into my counts for amicus and total representation, but not for merits party representation. With that we can proceed to the analyses.
The figure shows all firms that represented at least two merits parties this Term. This includes all orally argued cases – even those that did not reach a clear resolution in the manner examined in this post. The top spots are filled by firms that have strong histories of Supreme Court practice. Many of these firms also employ or are affiliated with ex-Solicitor Generals, which helps to bolster their Supreme Court practices. Examples include Paul Clement at Bancroft, Seth Waxman at WilmerHale, and Jenner & Block which employed the outgoing and incoming Solicitors General – Donald Verrilli and Ian Gershengorn. As is evident with the firms that represented multiple merits parties this Term, a small group of firms tends to dominate current Supreme Court practice.
Looking at merits party representation, the firms that won the most cases this Term are quite well known to the Court as well.
With four firms winning four cases each there is a sense of parity at the top while Stris & Maher was not far behind with three wins. Two biglaw firms, Mayer Brown and Gibson Dunn round out the list of firms with multiple wins for merits party clients.
Based on the wins we can calculate the firms’ success rates when representing merits parties. The limits I set for these calculations were that the firms participated in at least two cases with clear outcomes and won at least 50% of their cases.
Jones Day won all four of their cases when representing merits parties, Stris & Maher won all three of their cases, and Gibson Dunn won both of cases where they provided this representation. WilmerHale and Jenner & Block which fared next best both won four of five cases. Next is Bancroft PLLC which was successful in four of six or 67% of its cases representing merits parties.. The remainder of the firms had 50% success rate including Orrick Herrington (one of two cases), Mayer Brown (two of four cases), and Latham & Watkins (one of two cases).
This analysis conveys a few different insights. Jones Day was the most successful firm as party representation based on success rate and win count. Next were Stris & Maher and Gibson Dunn with three and two wins respectively. Finally, Jenner & Block and WilmerHale were quite successful with somewhat larger caseloads but still succeeding in 80% of their cases when providing merits party representation.
(2) Firm Amicus Representation
To bolster the proposition that there are a small number of groups and firms that dominate Supreme Court litigation, many of the most active firms in terms of party representation are also those with high instances of amicus representation.
Wilmerhale, a firm tied for the most wins as a party representative, was the firm that represented the greatest number of amici this Term at 15. Five of the six top firms or groups in terms of amicus representation are biglaw firms with dominant Supreme Court practices. The only interest group with an amicus representation count at a similar level is the Constitutional Accountability Center. The overall list though accounts for a wider variety of groups than are present in merits party representation including the ACLU, Washington Legal Foundation, Public Citizen, Pacific Legal Foundation, Center for Constitutional Jurisprudence, and the AARP Foundation.
Amicus win counts provide several nuances not present in the counts for amicus representation.
Although Sidley Austin and Jones Day were not at the top of the list for overall amicus representation, they tied for the most associated wins with eight. The Constitutional Accountability Center and ACLU had the most non-law firm amicus associated wins with six. This win list also includes two state offices of the Solicitor General: Michigan and West Virginia, which were both listed on three amicus briefs associated with the winning parties.
Looking at amicus representation, there are clear delineations in the firms’ success rates. The limits I set for firms in the figure below are those with at least 50% success and that were representatives in at least five cases with a clear outcome (affirmance or reversal).
Sidley Austin was on the successful side of all eight cases where it provided amicus representation (and received a decision on the merits) and the ACLU won in all six of their amicus cases with decisions, which gives them both a 100% success rate. Jones Day is next on the winning side in eight of nine or 89% of cases where the firm provided amicus representation. The Constitutional Accountability Center had the next highest success rate for amicus representation by an interest group after the ACLU with 86% followed by the Washington Legal Foundation at 67%.
(3) Firm Cumulative Representation
Lastly I examine the firms’ overall amicus and merits party representation according to the same metrics.
WilmerHale provided the greatest amount of total representation with 20 merits party and/or amicus clients. Jones Day was next with 16, followed by Jenner & Block, Hogan Lovells, and Gibson Dunn with 15 clients each.
With many cases comes many opportunities to win. As the figure below shows, there are many firms and groups that were on the winning side of at least three cases this Term.
Jones Day was on the winning side of the greatest number of cases with 12. WilmerHale and Jenner & Block both had 11. All three of these firms engaged in a combination of amicus and merits party representation. The only law school litigation clinic to make the cut for number of wins is Stanford Law School’s Supreme Court Clinic with wins in cases involving three of their clients this Term.
Finally the measure for overall success rates shows firms and groups that participated in at least a handful of cases indicating both the firms’ engagement in Supreme Court litigation as well as their propensity for success. The minimum requirements for firms and groups in this figure is that their clients were on the winning side of at least 50% of the cases where they provided representation, and that they were involved in at least five cases with clear outcomes this Term.
The ACLU was the only firm or group that was on the winning side all of the cases where it provided representation this Term (all amicus) giving it the highest success rate. Jones Day, however, quite possibly set the standard for success this Term, not only because it provided counsel to the second most clients (after WilmerHale), was on the winning side of the most overall cases this Term, and represented a combination of amicus and merits party clients. It had the second highest success rate at a very respectable 92%. Other firms and groups captured in the figure with at least 75% success rates include the Constitutional Accountability Center at 86%, Jenner & Block at 85%, the Pacific Legal Foundation at 80%, Arnold and Porter also at 80%, and WilmerHale at 79%.
The number of firms with multiple party and amicus representations befote the Court this Term underscores the convergence towards a relatively small group of Supreme Court practices. This convergence makes intuitive sense based on the success of many of these firms. With only 69 scheduled oral arguments this Term, the number of times some of these firms represented clients is quite astonishing. With 20 clients, WilmerHale had a hand in quite a large portion of the Supreme Court’s total caseload this Term. While the Office of the Solicitor General still dominates all other entities in terms of overall participation, some of these specialized Supreme Court practices are not far behind.
On Twitter: @AdamSFeldman
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 firms 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 (generally the same entities involved at the cert level were also involved at the merits level). I also removed the United States Office of the Solicitor General (OSG) from analyses because its participation is often a byproduct of an institutional facet of the federal government that is quite dissimilar from all other attorneys’ participation.
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, and Universal Health Services v. United States ex rel. Escobar.
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.
Firms involved in multiple dockets for the same consolidated case (e.g. Zubik v. Burwell) were only listed once if they appear in multiple dockets. Firms that were unique to one docket in a consolidated case were also included.