on those relatively few petitions in which review is seriously considered. The Justices instead must, as they do, depend heavily on their law clerks to identify which cases warrant the Court’s attention.
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As a result, the law clerks and, accordingly, the Justices, are highly dependent at the jurisdictional stage on the quality of the advocacy reflected in the petition for a writ of certiorari seeking review, amicus briefs filed in support of the petition, and those in any briefs opposed to review. And, most simply put, as good as those law clerks are, they are no match at the jurisdictional stage when time is so limited for the nation’s most skilled Supreme Court advocates. The latter, many of whom were once themselves Supreme Court law clerks but are now seasoned Supreme Court lawyers with years and decades of experience, know precisely how to pitch cases both to persuade a law clerk that a case is worthy of the Court’s review when it is not, and to persuade the clerks that a case is not worthy of review, when it is.
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Were the assistance of the most skilled Supreme Court advocates equally available to all persons, especially our society’s most vulnerable, their potential for outsized influence would neither be realized nor a problem. The Justices and their chambers would always have the advantage of exceedingly able lawyers on all sides of a case. In many cases, with the modern rise of the expert Supreme Court Bar during the past four decades, that is now true for the cases the Court decides after full briefing and oral argument. That development is very much a good thing. But it is not true at the jurisdictional stage which is both why the Court remains particularly vulnerable to undue influence by certain advocates and reform of the Court’s procedures is warranted.
Until relatively recently, the problem of skewed advocacy expertise was less concerning because so few attorneys possessed it outside of the Office of the Solicitor General of the U.S. Department of Justice…
Until the late 1980s, the Office of the Solicitor General enjoyed the equivalent of a monopoly on such expertise, but the emergence of a modern Supreme Court Bar has since dramatically changed that dynamic, and a handful of national law firms now fairly boast of highly skilled and successful Supreme Court practices frequently staffed by veterans of the
