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Access denied: the odds of being heard by the Court influenced by lawyer’s name

December 30, 2014
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What does it take to get beyond the Supreme Court steps?

What does it take to get beyond the Supreme Court steps?

This week, The New York Times Opinion page highlighted the secrecy and exclusivity of the Supreme Court.  They raised several concerns that have been voiced before, including the lack of cameras in the courtroom, the limited seating available for observers, and the banning of protesters from the plaza.  However, one new issue reported by Reuters indicates that the court of last resort is monopolized by a select few.  As if the 70-80 cases the justices choose to hear from the 10,000 petitions submitted per year is not a high enough barrier already, most of the selected cases are repeatedly argued by a small number of lawyers with whom the justices are very familiar.  The article identified 66 lawyers, or less than 0.5% of all petitions, which result in 43% of cases the justices agree to hear.  Moreover, eight lawyers argue 20% of all cases heard.  Other striking statistics include that if one of these 66 lawyers files the petition, it is six times more likely to be chosen for oral argument.  While it is assumed that the strength of the case determines its likelihood of reaching the Court, this analysis warns that the name of the lawyer is an increasingly powerful predictor of whether the suit is one of the few to get in front of the justices.  Interestingly, the justices do not deny the data.  In fact, they offer several explanations.  “If you know you have a solid beginning, two people making the best argument on both sides, that makes it less anxious for you,” said Justice Ginsburg.  Speaking to the value of having someone familiar leading the argument, Justice Breyer said, “I want people to know how the court works.”  Indeed, many of the elite lawyers who most frequently stand before the Court were, in fact, prior law clerks for one of the justices.   Paul Clement, a former law clerk for Antonin Scalia, has argued before the Supreme Court 75 times, including last year in support of the Defense of Marriage Act.  Others with elite Supreme Court practices, such as Ted Olson, often socialize with the justices.  When wealthy corporations petition the court, they are willing to pay more for an advocate already on solid footing with the justices.  But, when the pockets of the plaintiff are not as deep, and hiring an elite attorney is not possible, is justice more likely to end at the Supreme Court steps?

What do you think?

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