First-Timers in the Court

In recent years, a lot has been made of the repeat players before the U.S. Supreme Court – and rightfully so. They are involved in many high profile cases the justices hear, several have prior governmental experience…and they win. These attorneys include past-SG’s Seth Waxman, Ted Olson, and Paul Clement among others.  An understudied but equally pertinent group of Supreme Court advocates are “first-timers” before the justices, sometimes colloquially known as “one-shotters” (this term is a bit misleading, however, because one-shotters do not remain one-shotters if they try other cases in the Court).

The number of first-timers at oral arguments in the past two terms is surprisingly high at 72.  This figure equates to over 30% of the 238 or so total attorneys that participated in Supreme Court oral arguments during the 2015 and 2016 Supreme Court terms.  Several cases had first-timers arguing both merits positions including: Hernandez v. Mesa (Robert Hilliard and Randolph Ortega), Murr v. Wisconsin (John Groen and Misha Tseytlin), Water Splash v. Menon (Jeremy Gaston and Timothy Hootman), Betterman v. Montana (Fred Rowley and Dale Schowengerdt), and Utah v. Strieff (Tyler Green and Joan Watt).  Several others had two first-timer attorneys with a third, more experienced attorney also arguing a merits position.

The group of first-timers is composed of a diverse cross-section of U.S. attorneys.  Some we will probably never see in the Court again, some we may, and some we already have seen more than once.

Who are these first-timers? We don’t have to dig deep into oral argument transcripts to find the first one.  In the first oral argument of the 2015 Supreme Court term, Juan C. Basombrio from the firm Dorsey and Whitney was the first attorney arguer on behalf of the petitioner in OBB Personenverkehr AG v. Sachs.  Although it is impossible to say with any degree of certainty, this lack of Supreme Court experience may have manifest itself in explanations the justices did not wholly comprehend.  A few examples of the justices not appearing to follow Mr. Basombrio’s argument include:

JUSTICE SOTOMAYOR: I’m ­­ I’m sorry. I’m — ­­ I don’t even understand why we’re talking about based ­upon…

Or this interaction (on pages 10 and 11 of the oral argument transcript):

JUSTICE KENNEDY: Suppose we disagree with that ­–

BASOMBRIO: I’m sorry?

JUSTICE KENNEDY: Suppose we disagree with that answer? Do you lose the case?

BASOMBRIO: I’m sorry…

JUSTICE KENNEDY: Suppose we disagree with your answer. Can you still prevail on the facts that it ­­ that it did, in fact, occur in this case?

BASOMBRIO: Yes, but I would still prevail based on the agency argument that we have presented.

JUSTICE KENNEDY: On what ­­–

JUSTICE SCALIA: But you ­–

JUSTICE KAGAN: Could you go back and explain to me what ­­ I’m sorry.

JUSTICE SCALIA: You ­­ you’d lose on –­­ on the other point.

BASOMBRIO: Well ­–

JUSTICE SCALIA: You ­–­ you acknowledge that you would lose on the other point if ­­ if that hypothetical came out the other way?

BASOMBRIO: No, I do not.

JUSTICE SCALIA: Oh.

Even with this interaction Mr. Basombrio went on to win the case by a unanimous vote.  Of course, this type of interaction is not unique to first-time Supreme Court attorneys, but it is, at very least, an interesting way to start off the Supreme Court term.  Although these first-timers may have seemed lost at certain points in oral argument they were successful in a large minority of the cases they tried.

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Out of the times where a first-timer won or lost a case in the last two terms, first timers were successful in 28 of these attempts or 43% of the time.  These first-timer attorneys also went up against some of the most experienced Supreme Court advocates.

Some experienced advocates even went up against first-timers on multiple occasions over the past two terms.  The attorney with the most arguments against first-timers was Texas’ Solicitor General Scott Keller with four.  Michael Dreeben (who has amassed over 100 oral arguments across his career) and Anthony Yang both from the Office of the Solicitor General each had three arguments against first-timers as did Kirkland and Ellis’ Paul Clement and Christopher Landau.  Two first-timer attorneys also faced off against SG (at the time) Ian Gershengorn.

Many of the first-time attorneys had prior experience in federal courts of appeals.  The amount of this experience ranged from zero to 142 cases with an average of 24.6 cases.  For attorneys that had primary experience in one federal circuit, the breakdown of circuit experience is as follows:

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Attorneys with particular circuit experience tended to try cases in the 9th Circuit which is also the largest.  Aside from experience in the 9th Circuit, attorneys had a high level of focal experience in the 5th and 2nd Circuits as well.  The only circuit not represented is the 6th.

These attorneys come from a wide variety of types of practices and groups.

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About half of these attorneys are from large firms or the federal or state governments, and another half are from interest groups and small or mid-sized firms.  Attorneys from the large firms that tried the cases may have repeat opportunities in the future because these firms tend to handle many of the cases before the Court. The firms that had first-timers argue before the Court over these past two terms include: Sidley Austin, Quinn Emanuel, Dechert LLP, Mayer Brown, Munger Tolles, Arent Fox, Crowell & Moring, Hogan Lovells, Dorsey & Whitney, King & Spaulding, Perkins & Coie, Jones Day, and both Jenner & Block and Gibson Dunn on two occasions each.

Several of these first-timers have already accumulated multiple arguments before the justices.  These include Jenner & Block’s Adam Unikowsky who had his first oral argument with last term’s Puerto Rico v. Valle, and went on to argue three subsequent cases this term.  Unikowsky has also been extremely successful winning all four of the cases he argued.  The first-timer (from last term) with the next most arguments is Perkins & Coie’s Marc Elias who had his first argument in Wittman v. Personhuballah and went on to argue two more cases since then.

Others that are beginning to make names for themselves in the Supreme Court with multiple arguments include Colorado’s Solicitor General Frederick Yarger, Duggan and Shadwick’s John Duggan, Mayer Brown’s Michael Kimberly, and Consovoy McCarthy’s William Consovoy.  Consovoy McCarthy is the only firm aside from Gibson Dunn and Jenner & Block with multiple first-timers over the past two terms with William Consovoy and partner Thomas McCarthy both arguing their first cases before the justices.

Some of these attorneys will inevitably argue this coming term. By that point these repeat players will have veteran experience that will differentiate them from a new group of first-timers.


On Twitter: @AdamSFeldman

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