A Changing of the Guard? (Probably Not But the Evidence is Mixed)

In an article I wrote last year I found several Supreme Court repeat players were much more successful than others in getting the Supreme Court to hear their cases.


Many of these “Elite Cert Attorneys” argue multiple cases each term before the justices.  They all have high exposure to all aspects of Supreme Court process and procedure.  The time span of that article was through the beginning of the 2015 term.  This post focuses on those attorneys success on cert for the forthcoming 2017 term..  To do this, the post uses two sets of data. The first set (1) includes all petitions for cert listing the attorneys from the figure above in the past twelve months.  The second (2) is a set of all cases granted on cert for the 2017 term and counsel of record on those cert petitions.  The purpose of the two sets is to identify the petitions that the above attorneys filed over the last year, see how successful those attorneys have been with those petitions, and to observe which other attorneys will have cases before the justices in the upcoming term.  It also helps test the stability of the results from the previous article.

After excluding cases brought by the U.S. Solicitor General’s Office, the following figure contains a list of cases granted this term along with the petitioning counsel of record combined with all cases where the Elite Cert attorneys mentioned above had successful petitions filed between July 2016 and July 2017.


Looking at the figure both of Christopher Landau’s grants as well as Tom Goldstein’s  were for cases tried and decided during the 2016 term, and so Jeffrey Fisher and Ted Olson are the only attorneys in the Elite Cert group with grants for the 2017 term.  This list of limited grants for the Elite Cert group is also apparent when looking at the percent of petitions granted that they worked on over the last year.


The Elite Cert attorneys continue to have regular attempts at cert filings as is apparent with the pending petitions from this group.


The group of current grants for the Elite Cert group (including those for the past year) is now quite outnumbered by grants for other attorneys.  Several other attorneys with well-established Supreme Court practices have one or more grants including Hogan Lovells’ Neal Katyal, William & Connolly’s Kannon Shanmugam (in the article mentioned above Shanmugam is listed as one of the most successful cert attorneys for the recent years: 2012-2015), Ropes and Gray’s Douglas Hallward-Driemeier, and Jones Day’s Gregory Castanias.  It also includes petitions from states’ solicitors general including Ohio’s Eric Murphy and Wisconsin’s Misha Tseytlin.  One of the most successful up and coming SCOTUS attorneys, Jenner and Block’s Adam Unikowsky, also has a grant for the 2017 term.

The group of non-Elite Cert attorneys had to wait varied amounts of time to find out that their cases were granted.  The following figure looks at the amount of time between petition and grant for each of these attorneys (with the number of days averaged for Kannon Shanmugam who has two petitions granted for the upcoming term).


One might expect that the Elite Cert attorneys, based on their relationships with the Court, would have quicker decisions on their petitions than other similarly situated attorneys. The following figure compares the average time to grant for all of the non-Elite Cert attorneys (listed in the figure as “Other”) with the average time between petition and decision for each of the Elite Cert attorneys based on all of their petitions for the last twelve months.


Although the non-Elite Cert attorneys were on the longer end of the time spectrum, three Elite Cert attorneys had to wait longer on average for their decisions on cert.  On average, Seth Waxman had decisions on his petitions in half of the time it took for the non-Elite Cert group.

There are points of overlap and difference when comparing the types of issues in the petitions from both groups of attorneys.

Issue Areas.png

Both groups had multiple petitions in criminal law, the area with the most overall petitions.  In election law, one of the more contentious case areas before the Court, both petitions were from outside the Elite Cert group.

In one regard the Elite Cert attorneys maintained their prominence.  When looking at cases with three or more amicus briefs filed at the cert level, the Elite group had much more success than the non-Elites.


This outcome may not be surprising since the petitions filed by Elite Cert attorneys often have strong interests behind them.  On the other hand, when looking at the average number of cert amicus briefs in the cases for the non-Elite Cert attorneys against the average number of such briefs filed along with petitions from the Elite Cert attorneys, the non-Elite group fared well.


The only Elite Cert attorneys that average more cert briefs along with their petitions than the average for the non-Elite group were Jeffrey Fisher and Ted Olson.  This implies that the non-Elite Cert attorneys tended to handle petitions with highly salient issues that appealed to broad based interests (which is not surprising with a group that includes highly experienced attorneys such as Katyal).

What can we read into these statistics? Only around five-percent of cert petitions are annually granted.  This means rejected cert petitions are to be expected even from the most experienced SCOTUS practitioners.  The fact that some of the more experienced and successful Supreme Court (cert) attorneys have do not have cases on the Court’s merits docket for the upcoming term does not mean they will not have cases before the Court.  The Court’s docket will likely more than double by the time it hears a full slate of cases for the 2017 term.  Based on the Elite Cert group’s active petitions, we can tell that they will have many more opportunities to get cases before the justices before all is said and done and even if they do not have granted petitions this term, they will make their mark on the Court through amicus briefs, lower court cases that are in the mix for potential Supreme Court adjudication, and by responding to Supreme Court petitions on behalf of their clients.  The one aspect that is clearly changing is the mix of attorneys that fit into this squad with frequent exposure to the Court on cert.   This “new” group will inevitably draft a large number of petitions for cert in upcoming terms and will more than likely argue many cases before the justices in the years to come.

On Twitter: @AdamSFeldman

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