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The Echo Chamber Grows – Above the Law

A seemingly innocuous Supreme Court case in 2017 looking at the narrow issue of time bars in class action lawsuits saw two giants of Supreme Court advocacy duke it out before the nine justices. California Public Employees’ Retirement System v. ANZ Securities pit Tom Goldstein of then-named Goldstein and Russell for the Petitioner CALPERS against Paul Clement, then of Kirkland & Ellis, who argued on behalf of the respondent ANZ Securities. The judgement of the lower court in this case was affirmed by a close 5-4 decision. Since the beginning of the 2016 term the combination of Clement and Goldstein’s appearances before the Supreme Court numbered 37 (and Goldstein is now retired from appellate practice).  For a Court that only hears around 60 cases each term, this is quite a feat. The Supreme Court has been recognized as a court that funnels repeat player attorneys into most argument slots while only occasionally sprinkling in occasional first timers. As the Court’s docket has shrunk, this domination of oral arguments by a handful of select attorneys has become more pronounced than ever.

Who gets to argue at this Mount Olympus of the American law? Several of the most frequent participants either work in the SG’s (Solicitor General’s) Office (OSG) have worked there, or previously held the title of Solicitor General.  This makes intuitive sense for several reasons. First, they have experience before the justices. Members of the OSG regularly argue before the Supreme Court and few attorneys have as many opportunities before the justices as do SG attorneys. Attorneys in the OSG are selected because they are top notch attorneys who are well vetted for these few jobs.  The Solicitor General is also known as the Tenth Justice and was dubbed as such because through both regular appearances before the justices and work within government administrations, attorneys in the SG (and OSG) get to know about the justices in a more familiar manner than most others. The justices also often defer to the OSG’s expertise, especially when related to government policies and agenda items. These factors, among others, explain why attorneys that leave the OSG are so heavily sought after in private practice.

A recent example of this is Michael Dreeben. Dreeben is one of the few attorneys with more than 100 appearances before the justices as he served many years as the Deputy Solicitor General focusing on criminal cases before the Supreme Court.  When he left the OSG, it did not take long for him to be poached by O’Melveny and Myers within their Supreme Court and Appellate Litigation Group and White Collar Defense and Corporate Investigations Practice (Update 1 (12/11): Dreeben was recently brought back into government practice to assist in the case looking at whether former President Trump had any immunity from prosecution from crimes committed while in office; Update 2 (12/15): Dreeben now apparently no longer works at O’Melveny & Myers). Other OSG attorneys have gone this route in earlier stages of their careers, while some like Edwin Kneedler have stayed with the OSG for decades. Kneedler is the modern advocate with the most oral arguments at approximately 149.

Several former-SGs now in private practice have repeat arguments before the Court in this role, some even arguing multiple times before the justices in a term. A list of former SGs with significant repeat player experience in the private sector along with Paul Clement include Seth WaxmanGregory GarreDonald Verrilli, and Ted Olson (who argued on behalf of George W. Bush in Bush v. Gore).  Justice Kagan was also a former S.G., but she’s obviously moved in a bit of a different direction.

Repeat Players

With only a few spots at this upper echelon of Supreme Court practice, how do attorneys get this repeat player experience? Along with work in the OSG, some have come from big firm appellate practice while others have honed their skills in smaller appellate boutiques. Lisa Blatt is an example of an attorney both with experience in the OSG as well as in large firm practice at both Arnold & Porter and Williams & Connolly. Blatt has argued 46 cases in the Supreme Court.

Then there are others like Dan Geyser and Peter Stris who have cut their teeth mainly in boutique appellate practice. Geyser now leads the U.S. Supreme Court practice at Haynes and Boone while Stris is the managing partner of the Stris Law Firm. Both formerly worked together in the smaller firm environment and both have multiple Supreme Court arguments under their belts.

While there are tried and true ways to make it to Supreme Court arguments like working in the OSG, there is no one size fits all way to get there.  Blatt, Geyser, and Stris all have multiple arguments in the period examined in this post.

The data in this post consist of all arguments between the 2016 Term and the first part of the current 2023 Term.  The attorneys with the most experience outside of the OSG (those not currently working for the OSG but who may have in the past) are shown in the graph below.

The already mentioned Lisa Blatt and Dan Geyser are both covered in this graph – Geyser with 15 arguments during this period and Blatt with 13. Paul Clement and another former SG, Neal Katyal (Katyal was the Acting SG) have the most arguments of the group with Clement at 30 and Katyal at 22 since the beginning of the 2016 Term.  Next up, Kannon Shanmugam worked in the OSG and currently manages Paul Weiss’ Supreme Court Practice while Jeffrey Fisher co-directs Stanford Law School’s Supreme Court Litigation Clinic and is also Special Counsel for O’Melveny & Myers.  Several other individuals on the list run Supreme Court and Appellate practices in large firms as well.  Two former Texas SGs, Judd Stone and Scott Keller also make this list.

Moving down the ladder to attorneys outside of the OSG with four to six arguments during this period we see the following:

Roman Martinez was formerly in the OSG and now is a partner at Latham & Watkins while Donald Verrilli was a former SG before moving to the firm Munger Tolles as the founder of its Washington D.C. Office. Peter Stris is covered in this graph as well as several attorneys who worked in state SG’s offices.

The next graph tracks attorney experience in the Supreme Court from the OSG’s during this period.

Attorneys with experience from multiple administrations have the most arguments. These include Malcolm StewartEric Feigin, and Edwin Kneedler among others. There are also SGs and active SGs like Elizabeth PrelogarNoel FranciscoJeff Wall, and Ian Gershengorn. Previously mentioned Michael Dreeben is on this graph with eight arguments during this period for the OSG before leaving for private practice.  Roman Martinez had an argument for the OSG before leaving for private practice.

Concluding Thoughts

In Vidal v. Elster, a case argued in November of the present term, Chief Justice Roberts concluded the arguments praising government attorney Malcolm Stewart:

“Thank you, Mr. Stewart. If you’ll linger at the podium just for a moment. Our records reflect that this is your or was your 100th argument before the Court. You are the fourth person to reach this rare milestone this century. Throughout your career, you have consistently advocated positions on behalf of the United States in an exemplary manner. I recall one case in particular from my days in private practice 23 years ago in which I was counsel for petitioner and you argued in support of respondent. Now, when the opinion came down, I was just nine votes short of a unanimous result — (Laughter.) — for – for my client. On behalf of the Court, I extend to you our appreciation for your advocacy before the Court and dedicated service as an officer of this Court. We look forward to hearing from you many more times.”

Stewart is now in this unique and even smaller group of attorneys with 100 or more arguments. Will this group get larger? Possibly over time.  Attorneys like Stewart who linger in the OSG for years are the most likely candidates. Some like Clement who have a mix of big firm and OSG experience might as well. On the other hand, as the number of oral arguments per term continues to dwindle, there will be fewer opportunities to get there on a term-by-term basis.  Reaching this high-water mark of arguments will only be possible now with this continued and growing norm of repeat players getting multiple arguments before the Court.

One might inquire if this repeat player trend is a good or a bad thing for Supreme Court practice. In reality it is a bit of both and why it might be a good idea for repeat player and non-repeat player attorneys to co-counsel in some cases.  Attorneys with non-Supreme Court expertise probably have more case specific and regional knowledge depending on where the facts of the case arose. Attorneys with Supreme Court experience already have a sense of how to argue before the justices, what the justices look for, and how to keep the justices interested.  Some attorneys arguing in the Supreme Court for the first time have found out the hard way the importance of maintaining the justices’ focuses.  Experience before the justices does seem to be the key for getting back into Supreme Court arguments. After that it appears to be the gift that keeps on giving.

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Data for this post was gathered from the Supreme Court’s website and from Oyez.org

Note: The counts for when attorneys were in the OSG versus private practice may need adjusting for periods where attorneys moved from the OSG to private practice.

Appendix


Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]Find him on Twitter @AdamSFeldman and on LinkedIn here.

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