Since the beginning of the 2010 Supreme Court Term, 82 cases have been decided by one vote (80 by 5-4 votes and 2 by 4-3 votes. Both of the 4-3 votes were during the 2015 Term (see this post for more information on those cases)). These include orally argued cases and non-orally argued decisions where four Justices dissented. These close-vote cases compose some of the most important and publicly regarded recent Supreme Court decisions including Burwell vs. Hobby Lobby, Shelby County v. Holder, and United States v. Windsor. Many of these cases divided the Justices along ideological lines leaving Justice Kennedy as the swing Justice and placing the decisions in his hands.
In the last week Justice Kennedy made a statement about how Supreme Court Justices should be able to change their views on issues over times in good conscience and how this is not a sign of weakness. While Justice Kennedy has a rational defense for this perspective as he has clearly shifted his position on issues such as affirmative action (with his vote and majority opinion in Fisher v. University of Texas at Austin, other Justices have been less flexible in their views. One way to view this flexibility is through the Justices’ voting alignments. Even though there were some interesting Justice pairing last Term, we never saw and we may never see, for example, Justices Thomas and Kagan on the same side of an affirmative action decision.
Based off this theme of alignments in close cases, an intriguing question that has gotten little attention in studies of the Supreme Court is whether Justices align with attorneys in predictable fashions over time. We might for example expect a conservative Justice’s vote to parallel an attorney’s position over time if the attorney defends conservative positions in a series of cases. The same goes for attorney’s liberal positions and corresponding Justices. The most interesting types of cases for this type of analysis are cases decided by one vote, where the Justices are incentivized to vote based on their preferences because one vote could potentially shift such a case’s outcome.
Before diving into the Justice-attorney alignments, a statistic of interest relates to the extent that attorneys are repeat players in these 82 cases as representatives on the merits (either orally arguing the case or in non-orally argued decisions the counsel of record on the party’s merits brief). While the majority of lead attorney slots in these close cases are taken by litigators that partook in one such cases since 2010, there are a handful of repeat players as well. The first figure in this post examines lead attorneys in more than one such case (Solicitor General excluded).
Paul Clement was involved in twice as many cases as the next most prolific attorneys in this area. Perhaps this is not a surprise as Kirkland & Ellis’ Clement (formerly of Bancroft PLLC) is often touted a “conservative superlawyer,” handling many contentious cases by defending the conservative positions. Evident although not surprising from this list is the presence of many of the most recognized names in modern Supreme Court litigation.
Trying close cases does not necessarily correlate with wins, however. In this set of cases, wins do not come easy as is apparent from the fact that no attorney won more than three such cases since the 2010 Term. Below is a figure with the attorneys that were on the winning side of two or more such decisions.
The two attorneys with three such victories are Latham & Watkins’ Greggory Garre and WilmerHale’s Seth Waxman. Waxman’s wins came in the cases Hall v. Florida, Turner v. Rogers, and Arizona State Legislature v. Arizona Independent Redistricting Commission. Garre’s wins were in the cases Vance v. Ball State University, Fisher v. University of Texas at Austin (2015), and United States v. Home Concrete & Supply LLC.
Now for how the Justices and attorneys aligned. For this analysis I look at instances where Justices voted for the party represented by the attorney four or more times in this set of cases.
Not surprisingly the attorneys on this list are towards the top of the list for total cases tried in this set. There are two somewhat surprising points though. First, only three attorneys are represented in this figure: Paul Clement, Carter Phillips of Sidley Austin, and David Frederick of Kellogg Huber. Second, although there is some pattern in the voting alignments between attorneys and Justices, some predictable patterns did not play out as might be expected.
As Clement is described as often representing conservative causes, the strong relationship between Justice Scalia’s votes and Clement’s positions follows suit. On the other hand, Clement is supported by Justices Kagan, Ginsburg, and Sotomayor by votes in four close cases. This runs against the conservative attorney hypothesis as support from these Justices in close cases is often a sign of defending a more liberal position. The other two attorneys on the list have consistent support from one side of the ideological spectrum. The two Justices that provided this level of support (four votes) to Carter Phillips were the predominately conservative Justices Scalia and Thomas. David Frederick had the support of votes in four cases from the more liberal Justices Kagan, Ginsburg, and Breyer.
Also perhaps not shockingly, these same attorneys have the same general amount of support in the opposite direction with patterns of votes against their positions. The opposing vote alignment figure also looks at instances where attorneys have at least four votes against them in this set of close cases.
Paul Clement was the only attorney to receive five or more votes from Justices in different cases against his positions. These include six from Justice Breyer (also in accords with the conservative attorney theme) as well as five from Justices Kennedy and Roberts (which aren’t as congruent with the conservative hypothesis). Like the figure for Justices-attorney positive alignments though, a mix of Justices from the both end of the ideological spectrum voted against Clement at least four times in these cases including Justices Kagan and Thomas.
Votes against David Frederick’s positions make ideological sense based on the votes supporting his positions. The Justices that voted against his positions at least four times include the more conservative Justices Alito, Roberts, and the oft conservative Justice Kennedy. Justices Breyer and Ginsburg voted against Carter Phillips’ positions four times each which corresponds well to the conservative support he was provided from Justices Thomas and Scalia in these cases.
These findings leave several open questions for the upcoming Supreme Court Term. Will Paul Clement continue to handle as many close cases now with Justice Scalia no longer on the Court and with his firm’s move to Kirkland & Ellis? Will an eight-member Court last well into the coming Term leaving the possibility of cases divided by one vote only feasible in instances with a Justice recusal. Finally, will new voting alignments arise with a new Court composition and will these lead to new supporting alignments that favor several of these or other attorney’s positions? Suffice it to say there is a lot to look forward to in the upcoming Term with arguments beginning next Tuesday, October 4.
On Twitter: @AdamSFeldman
Data on case votes and outcomes from the United States Supreme Court Database