In a cautious and almost trepidatious manner the Supreme Court has slowly filled in part of its docket for the 2016 Term. The correlation between this slow-moving approach to cert and the empty seat on the Court is unmistakable. There are currently eight cases scheduled for argument in October. The Court already granted cert in an additional 21 cases that have yet to be calendared for oral argument.
A distinguishing characteristic of the Court over the last several decades has been the convergence towards a limited number of advocates handling many of the cases with a high level of success. This convergence was especially apparent this past Term.
One mechanism that propels cases through this funnel towards a limited number of attorneys is reputation. Those advocates notable for their Supreme Court expertise are both sought after at the Supreme Court level, and seek cases (and sides) where they perceive a likelihood of success. A notable aspect of this specialized representation is that these advocates oftentimes join cases once they perceive the importance of the case and this likelihood of success at the appellate level (since the significance of a case may be observable prior to a cert grant, elite attorneys may join the representation at an earlier phase in of a case as well, which will not generally be apprehended in this analysis). Add this to a multiplicity of factors including balancing several cases at the highest court level, and these attorneys often join cases at the Supreme Court cert stage.
Even with the limited number of cases granted for the 2016 Term so far, we see this effect in a number of the cases. In the cases set for oral argument, this transition in representation is apparent in three of the eight cases. In Bravo-Fernandez v. U.S., No. 15-537, petitioners added Lisa Blatt from Arnold & Porter to the representation that was comprised of attorneys Martin G. Weinberg, David Z. Chesnoff, and Kimberly Homan in the First Circuit. Blatt is a Supreme Court regular participating in many cases of the past several years including: Adoptive Couple v. Baby Girl, Tarrant Reg’l Water Dist. v. Herrmann, Marx v. Gen. Revenue Corp., and Astra USA, Inc. v. Santa Clara County.
In Manuel v. City of Joliet, No. 14-9496, the respondents added the firm Jenner & Block to their Supreme Court representation, and specifically, former Solicitor General of Illinois, Michael A. Scodro. In Pena-Rodriguez v. Colorado, No. 15-606, petitioners added Jeffrey Fisher from the Stanford Supreme Court Litigation Clinic as counsel of record. Fisher has been a representative in over 20 cases before the Supreme Court including recently, OBB Personenverkehr AG v. Sachs, Ohio v. Clark, Oneok, Inc. v. Learjet, Inc., and T-Mobile S., LLC v. City of Roswell (I also found him to be the most successful Supreme Court attorney at the cert stage of the last several years in a forthcoming paper).
In a fourth case already set for oral argument, Samsung Electronics Co. v. Apple, No. 15-777, veteran Supreme Court litigator Kathleen Sullivan was counsel for Samsung in the Federal Circuit and will be in the Supreme Court as well.
This pattern continues as we look beyond the calendared cases. Starting with the case National Labor Relations Board v. SW General, No. 15-1251, Jones Day’s Shay Dvoretzky, counsel in Husky Int’l Elecs., Inc. v. Ritz, EEOC v. Abercrombie & Fitch Stores, Inc., and Samantar v. Yousuf, was brought in to help represent SW General.
In one of the more discussed copyright or trademark cases of recent year, Star Athletica, LLC v. Varsity Brands, Inc., veteran Supreme Court attorneys were brought in for both sides. Petitioner brought in John J. Bursch, counsel in cases including Obergefell v. Hodges, Michigan v. Bay Mills Indian Cmty., Schuette v. Coalition to Defend Affirmative Action, Burt v. Titlow, and McQuiggin v. Perkins, while respondent hired Goodwin & Procter’s William M. Jay (counsel in cases including B&B Hardware, Inc. v. Hargis Indus., Teva Pharms. USA, Inc. v. Sandoz, Inc., Lafler v. Cooper, and Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett).
Both parties brought in Supreme Court specialists for their representation in Fry v. Napoleon Community Schools. Petitioners hired civil rights attorney and University of Michigan Law Professor Samuel R. Bagenstos, while respondents brought in ex-Acting Solicitor General and Hogan Lovells partner Neal Katyal. Petitioner Wells Fargo also brought Katyal in as a representative in Wells Fargo & Co. v. City of Miami.
In Czyzewski v. Jevic Holding Corporation, veteran Supreme Court attorney Christopher Landau was representative for respondent Jevic Holdings in the Third Circuit and will be in the Supreme Court, while petitioners brought in WilmerHale’s Craig Goldblatt for their Supreme Court case.
Petitioner in the capital case Moore v. Texas brought in Skadden Arps attorney Cliff Sloan for their Supreme Court representation. Finally petitioners in Lightfoot v. Cendant Mortgage Corporation hired Orrick’s veteran Supreme Court litigator E. Joshua Rosenkranz as counsel of record. Rosenkranz was representative in numerous past Supreme Court cases including Kirtsaeng v. John Wiley & Sons, Inc., Sheriff v. Gillie, City of Los Angeles v. Patel, and
Fox v. Vice.
Along with these twelve shifts in representation towards Supreme Court Bar attorneys, there were more subtle shifts. As an example, Supreme Court specialist Carter Phillips was on the briefs and of-counsel in the Federal Circuit for petitioner Life Technologies in Life Technologies Corporation v. Promega Corporation, yet he is counsel of record for petitioners in the Supreme Court.
These movements help to articulate and accentuate the bi-directional importance of specialized Supreme Court practice. For parties this provides representatives well versed in the intricacies of Supreme Court practice while for the advocates these cases provide the material that helps them maintain their spots at the acme of this highly sought-after terrain. Together they help to maintain the coveted and limited spaces atop the Supreme Court Bar.