Elites at Cert

The odds are stacked against attorneys seeking to have their cases heard by the Supreme Court. While attorneys working on cases accepted for review have a 50/50 chance of success on the merits, the average likelihood of a cert grant is around 1%. Certain attorneys though have a much higher success rate (also documented in a past article). This post takes a closer look at elite attorneys’ current success at the cert level. It also looks at some of the correlates of cert success to see how these attorneys rank according to these variables.  The timeframe for this analysis is from the beginning of 2018 until the present.

To hone in on specific attorneys, for this analysis I examined the cert success of the eight most active attorneys at oral argument according to a previous article.  These attorneys include Paul Clement, Kannon Shanmugam, Jeffrey Fisher, Shay Dvoretzky, Neal Katyal, Dan Geyser, David Frederick, and Seth Waxman.  Three of these men, Paul Clement, Neal Katyal, and Seth Waxman, were previous Solicitors General of the United States.

At the most general level we can examine the number of cert petitions filed during this period where one or more of these attorneys were listed as an attorney working on the petition (all analyses of these petitions were based on the attorneys’ presence on the petition and not necessarily whether the attorney was counsel of record).

Paul Clement has the lead in petitions filed by quite a margin with 66.  Neal Katyal has the next most petitions with 42.  The three next attorneys, Kannon Shanmugam, Jeffrey Fisher, and Seth Waxman cluster together with 34, 33, and 27 petitions respectively.

To look at these data another way, the next graph looks at the number of petitions broken down by year.

Paul Clement had the most petitions in a year of all attorneys in this post with 18 in 2018.  No attorney had as many petitions as Paul Clement in 2019 or 2020 either, where Clement filed 17 petitions in each year. Neal Katyal had the next most in a year with 15 in 2019.

Another way to break down these petitions is by which lower court heard the cases prior to the Supreme Court petition.

The most petitions came from the 9th Circuit which may not be surprising since cases granted from the 9th Circuit often outnumber those from any other court.  Combined petitions from state courts come next, followed by petitions from the Federal Circuit and the Fifth Circuit with petition numbers dropping off from there.

A second view of these data is according to attorneys who had the most petitions in a specific court. The minimum value in this analysis for any attorney is four petitions from a specific court.

Paul Clement had the most petitions from one court with 18 from the 9th Circuit. Clement also had the next most with 12 from state courts. Seth Waxman had the third most with 11 petitions from the Federal Circuit.

The next figure looks at cert success measured by the number of granted petitions divided by the overall number of petitions filed removing pending and dismissed petitions and counting GVR (grant, vacate, and remands) as granted petitions.

Shay Dvoretzky had the highest percentage with just over 41% of petitions granted. Kannon Shanmugam came in next with just over 37% of his petitions granted. Next come David Frederick and Paul Clement who each had approximately 33% of their petitions granted.

Two additional notable features of cert petitions are the number of times each petition goes before the justices before they officially vote on whether to hear the case and the amount of amicus support behind petitions at the cert stage.

First a look at the average number of distributions by attorney. This gives a sense of the amount of time the justices spend reviewing a given petition.

Paul Clement has the most average distributions at over 2.5 per petition with Shay Dvoretzky coming in next with over 1.9 distributions per petition. Clement also had the greatest number of separate opinions of the group to go along with denied petitions with four.  These separate opinions are a strong signal that certain justices would have granted the petition. The only other attorney with a separate opinion associated with a petition was Neal Katyal.

The three petitions distributed the most times all came from Paul Clement. The Court distributed the petition in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano 16 times before deciding to GVR the petition. Next with 12 distributions was Clement’s petition in Kennedy v. Bremerton School District. This petition was eventually denied. Lastly was Clement’s petition in PennEast Pipeline Co., LLC v. State of New Jersey, which was distributed nine times and eventually granted by the Court.

Another aspect of these petitions is the number of amicus briefs filed prior to a decision on cert. The average number of cert amici by attorney is shown below.

Kannon Shanmugam leads the way with 3.2 amici briefs on average per petition followed by Neal Katyal with 2.9 and Paul Clement with 2.8.

Cert amici generally signal interest in a petition and are often a strong signal to the Court of a case’s importance. Still, several of the petitions with the most amicus support were denied.

The most cert amicus briefs in a case were 20 filed in support of Neal Katyal’s petition in Maryland-Nat. Capital Park and Planning Com’n v. American Humanist Association.  This petition was granted. The next most were filed in support of a petition that listed Kannon Shanmugam’s support, Google LLC v. Oracle America, Inc., with 17. This was also granted. The third most amicus briefs filed at the cert stage in these cases with 13 was in Paul Clement’s petition in Bradley Boardman, a Washington Individual Provider, et al., Petitioners, v. Jay R. Inslee.  This petition was later denied. Of the eight petitions with the most amicus support three were granted, four were denied, and one is still pending (Paul Clement’s petition in Joseph A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT has ten cert amicus briefs).

Is this trend of elite attorney participation and success at cert likely to continue? All signs point to yes. These attorneys along with several others command a strong ability to sway the justices in favor of their petitions because of the strong cases they take, because their names are on the petitions, and because they know how to draft petitions in a manner that appeals to the justices. A last graph shows the number of pending petitions from each of these attorneys.

These numbers show that these attorneys are quite active at the cert stage and this should not end anytime soon.

On Twitter: @AdamSFeldman

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