The Supreme Court wrapped up oral arguments for the 2016 term on April 26, 2017 with arguments in Sandoz Inc. v. Amgen and Maslenjak v. United States. These marked the 63rd and 64th arguments the Justices heard this term – down five from the 69 arguments the Justices heard a year prior. While the Court heard fewer cases this term, there was anything but a dearth of attorneys working on these cases. Between amicus and direct parties, entities filed over 700 initial briefs to the Court (this figure does not count parties that filed multiple briefs within the same cases).* This number primarily stems from amicus briefs which dominated the Court’s merits filings (for instance sixty such briefs were filed by academics) as they have done for many years.
While there is no lack of participation in Supreme Court litigation, there are some attorneys and firms that are involved far more than others. Most of these repeat players are not new to the Court and have been recognized as Supreme Court regulars for years. Chief Justice Roberts documented the same year he joined the Court that this centralization brought back a vestige of the Court’s history. As Justice Roberts noted and is readily apparent from many articles on the “Supreme Court Bar,” (the colloquial phrase coined to refer to Supreme Court elite advocates) this centralization is a double-edged sword. One the one hand parties before the Supreme Court want top representation, often in the form of those with greater litigation experience before the Justices. On the other hand, this stymies diversity of representation and creates high barriers to entry.
Many of these repeat Supreme Court attorneys represented the federal government in the past and several are former Solicitors General. Looking at attorneys for named parties this term, the average number of cases was 1.95 or just under two arguments. Amicus attorneys fell just below this figure with an average of 1.85 cases per attorney (as counsel of record on amicus briefs).
This rate of participation increases when we look at the firms employing each arguing attorney. At the direct party level firms averaged 2.75 cases this term, while at the amicus level the firm average was 4.35 representations. Looking at the groups named on the amicus briefs, entities (mainly interest groups) filed briefs in an average of 3.0 cases this term. These summary statistics all underscore a similar point – that there is a regularity to much of the litigation before the Court or at least in those that argue – and this is not likely to dissipate anytime soon.
These numbers so far lack faces. Who made up this group of attorneys, firms, and interest groups with repeat opportunities before the Court this past term? We begin by looking at attorneys that argued before the Court on behalf of merits parties.
Neal Katyal was far and away the most active attorney at arguments this year (Katyal led all other attorneys in arguments even when including federal government participation). Amazingly, Katyal’s six arguments accounted for over 9% of all arguments before the Court this term. The other attorneys at the high end of participation this term are also not new faces to the Court either. Seth Waxman with four arguments is a former United States Solicitor General who often has multiple arguments in a term. Jeffery Fisher who runs Stanford’s Supreme Court Litigation Clinic has been recognized as extremely successful before the Court for many years.
While this group of individuals has momentum to dominate the Court’s litigation for years to come, several including Katyal have noted the lack of gender diversity in these ranks. Indeed, Lisa Blatt and Kathleen Sullivan, the two female attorneys on this list of repeat players only constitute 11% of the 18 individuals listed. This is not a new phenomenon and there are few facts to suggest that this trend will shift in years to come.
The list of firms with the most regular participation this term based on arguing attorneys is primarily constituted from the individuals with many repeat appearances before the Court.
Neal Katyal’s firm, Hogan Lovells, was the top participating firm representing a party on the merits (based on the number of oral arguments) this term with seven appearances. Catherine Stetson was the other attorney from Hogan aside from Katyal with an argument this term. WilmerHale and Kirkland and Ellis followed Hogan with six attorneys appearing each. Seth Waxman was the only attorney with multiple appearances this term from WilmerHale. Kirkland had its six appearances split by Supreme Court veterans Paul Clement and Christopher Landau with three arguments apiece.
The regular amicus attorneys this term include some of the same individuals as the direct parties’ attorneys as well as individuals who did not argue before the Court this term.
Brianne Gorod from the Constitutional Accountability Center was counsel of record on the most amicus briefs this term with nine. The Washington Legal Foundation’s Richard Samp submitted six such briefs this term as did Mayer Brown’s Andrew Pincus and Kirkland’s Paul Clement. When Clement’s six amicus briefs are added to his three merits appearances he ties Brianne Gorod as the only other attorney this term to lead litigation at some level in nine separate cases before the Court.
The firms of record behind this term’s amicus briefs are from a mix primarily of large firms and interest groups.
Even though Jones Day lost many of its appellate attorneys to federal government practice this term, it still led the way with fourteen amicus briefs as the firm of record. Four large firms place next with twelve briefs apiece including WilmerHale, Sidley Austin, Mayer Brown, and Gibson Dunn. WilmerHale was the busiest firm this term when aggregating direct party and amicus participation with eighteen total cases. The two interest groups as firm of record on the most briefs were the Washington Legal Foundation and the Constitutional Accountability Center. Brianne Gorod was counsel of record on nine of the Constitutional Accountability Center’s ten amicus briefs this term with one from Elizabeth Wydra. The split was less skewed for the Washington Legal Foundation’s briefs with six from Richard Samp and four from Cory Andrews.
Even though the Constitutional Accountability Center and the Washington Legal Foundation were the top two interest groups listed as firms of record on amicus briefs this term, several other groups were the most frequent first named amicus parties on briefs.
Preceding the two aforementioned groups are three of the most prolific filers of amicus briefs before the Supreme Court in recent years. The group with the most briefs this term was the National Association of Criminal Defense Lawyers (NACDL) with eighteen. The NACDL is followed by the Cato Institute with fourteen and the U.S. Chamber of Commerce with eleven.
This term in the Supreme Court, like many before it, was dominated by repeat attorneys and firms. This pattern seems here to stay as there is little movement in any alternate direction. Based on this, we can expect to see many of these attorneys and firms before the Court and on briefs during the term to come. One question that will likely remain unanswered until we get closer to next term is: Along with repeat players, which attorneys (if any) will be added to or subtracted from these lists?
[* The analyses in this post do not include participation from the United States government which has systematic and institutional advantages both in bringing and in arguing cases before the Justices.]
On Twitter: @AdamSFeldman
Research Assistance from: @SamuelPMorse