Presidential Commission on the Supreme Court of the United States
review to corporate-friendly petitions that it would have likely passed over if not for an expert advocate’s name on the industry-side brief.
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These elite lawyers’ “capture” of the Supreme Court docket, as Professor Lazarus has put it, has real consequences for workers, consumers, and other plaintiffs who have been hurt by corporations, as well as for criminal defendants. For one, judges and attorneys widely agree that hiring specialized appellate counsel—especially one particularly familiar with the Court—matters for a favorable outcome. In a 2004 survey of former Supreme Court clerks, 88% said they “len[t] additional consideration” to amicus briefs signed by an eminent repeat player. Empirical studies have linked attorney experience with case outcomes as well. A study by Professor Jeffrey Fisher, for example, found that a party represented in the Supreme Court is almost 20% more likely to win on the merits than one represented by a nonspecialist—and that the advantage at the certiorari stage is likely even larger. A 2014 investigation found that over a decade, just 66 of the 17,000 attorneys who filed petitions at the Supreme Court accounted for 43% of the cases the Court took up, and 51 of those lawyers represented corporate interests. An increase in cert petitions, combined with a shrinking merits docket, has made the involvement of repeat players in petitioning the Court especially valuable…
The access that plaintiffs, criminal defendants, and other public-interest clients have to this specialized group of repeat players is severely limited. For one, corporate-defense firms routinely charge more than $1,000 per hour for their services, and a single cert petition can cost a client hundreds of thousands of dollars. Even if attorneys at high-powered appellate practices have some inclination to take on plaintiff-side work, they often will not due to the fact that their firms represent the corporations, or at least the antiplaintiff positions, on the other side of the case. The Chamber of Commerce and other influential industry groups—not to mention many of the largest corporations in the country themselves—have hired most of the firms with elite appellate practices, making it difficult or impossible for attorneys at those firms to represent contrary interests and positions. Some might reasonably suggest that the rise of excellent law school supreme court clinics mitigates this problem, but, unfortunately, that is not the case. Virtually all of those clinics are affiliated with the very same corporate-defense law firms that employ the expert Supreme Court advocates, making it difficult for the clinics to take a position against, for example, a major bank in a case concerning financial services regulation.
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