Empirical SCOTUS: Not all appeals are equal

Posted Wed, April 18th, 2018 4:33 pm by Adam Feldman

Each individual calendar year the attorney investigate and position business Chambers & Associates puts out a record of top rated appellate legal professionals and firms. (In a prior article, I looked at some of the shown firms’ cert performance.) Chambers makes use of a combine of qualitative and quantitative methodology to appear up with its several lists. Mainly because its team of top rated appellate legal professionals presumably designed the minimize based mostly on their prowess in appellate regulation commonly, this record is significantly from Supreme Courtroom particular. In simple fact, as most legal professionals are mindful, appellate apply customarily is based mostly in federal and state courts of attractiveness and usually has small to do with Supreme Courtroom apply. Considering the fact that the Supreme Courtroom is not necessarily the principal courtroom of apply for this team of attorneys, I assumed it would be intriguing to see how involved the team of 66 attorneys in Chambers’ record of top rated appellate legal professionals have just lately been in Supreme Courtroom litigation. To do this I looked at quite a few actions of participation for the prior and existing Supreme Courtroom phrases.

A lot of of the 66 attorneys in Chambers’ record of top rated appellate legal professionals were being involved in multiple circumstances throughout the 2016 and 2017 Supreme Courtroom phrases. In simple fact, when we glimpse at their overall participation in phrases of merits and amicus briefs that name them as counsel, we have 282 briefs, or an average of 4.27 briefs for every lawyer. This evaluate is really skewed, since the top rated collaborating attorneys were being involved in very well in excess of five circumstances all through this time period and the the very least involved attorneys were being involved in few to no circumstances in the Supreme Courtroom. Just evaluating the 2016 and 2017 phrases, these attorneys are a little bit additional involved in circumstances this expression than final.

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Which attorneys designed Chambers’ record and in how numerous circumstances were being they involved? The adhering to determine ranks the attorneys who participated in Supreme Courtroom circumstances in excess of the past two phrases by overall number of circumstances.

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The men and women in this determine were being involved in circumstances as amici and merits attorneys. As we will see, some of these attorneys were being disproportionately involved at one particular amount or the other, although other individuals had a combine of involvement. For instance, the top rated lawyer by scenario involvement, Andrew Pincus of Mayer Brown, achieved this posture principally through amicus participation.

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With his involvement in 20 amicus briefs throughout these two phrases, Pincus accounts for additional than double the participation of the future most involved amicus lawyer in the record, David Frederick. Pincus’ amicus participation operates the gamut from representing E-Bay in the just lately argued South Dakota v. Wayfair to representing the Chamber of Commerce in Lucia v. Securities and Exchange Fee, which will be argued future week.

Other attorneys on the amicus record, such as David Frederick and Paul Clement, were being also involved in a big number of circumstances at the merits amount.

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With 11 circumstances, Neal Katyal’s involvement in merits circumstances in excess of the past two several years surpasses that of Clement, Frederick, and all of the other attorneys on Chambers’ record. Katyal’s merits activity contains his illustration of Hawaii in the extremely expected scenario of Trump v. Hawaii. Clement just lately argued on behalf of the winning party in Encino Motorcars v. Navarro. Rounding out the five most involved attorneys at the merits amount are Orrick’s Josh Rosenkranz, Williams & Connolly’s Kannon Shanmugam and Goodwin’s William Jay.

The amount of participation from these 66 attorneys was significantly from equal throughout circumstances. Certain high-profile circumstances led to the involvement of larger quantities of these attorneys. Still, there are circumstances involving quite a few of these attorneys that may possibly be relatively shocking.

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The scenario involving the most attorneys from Chambers’ record in excess of the past two phrases was the patent scenario Oil States Electricity Providers v. Greene’s Electricity Group. While Oil States has not obtained as significantly coverage in the well-known push as other circumstances like Masterpiece Cakeshop v. Colorado Civil Legal rights Fee, the doable repercussions of this ruling for numerous corporations established big stakes for highly effective entities afflicted by patent litigation. The travel-ban scenario – Trump v. Hawaii – ranks second on the record, followed by Gloucester County University Board v. G.G., in which the Supreme Courtroom vacated and remanded the decreased court’s conclusion based mostly on the federal government’s change of posture.

Even even though these attorneys were being and are involved in multiple circumstances in excess of the past few phrases, this does not necessarily signal their continued involvement in Supreme Courtroom circumstances moving forward. With the existing toughness of the “Supreme Courtroom Bar” of elite attorneys, even though, it will not be shocking if numerous of these attorneys go on to be involved in a high number of Supreme Courtroom circumstances.

The future determine seems to be at cert petitions granted, denied or pending due to the fact January 1, 2017 involving the attorneys shown in the prior determine who were being involved in at the very least a few merits circumstances. The quantities are based mostly on the dockets in which they submitted cert petitions. This determine need to be taken with a grain of salt, since it encapsulates a particular minute in time. Some of the pending petitions could be granted or denied in the close to long run, shifting the composition of this determine substantially.

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This determine has some overlap with the prior determine, since the granted circumstances were being predominantly now argued. Nevertheless we see that even with their accomplishment, these attorneys file a honest share of petitions that are denied. We also see that nearly all of the attorneys on this record have existing petitions in the pipeline. Kannon Shanmugam has the most pending petitions of this team, followed by Paul Clement. Suffice it to say that this team need to be really involved in forthcoming Supreme Courtroom circumstances and petitions.

While not all the attorneys from Chambers and Partners’ record are extremely involved in Supreme Courtroom litigation, numerous are. With the continued involvement and accomplishment of elite Supreme Courtroom attorneys, there is no recommendation that this craze will stop. A long run minimize at this question may perhaps examine attorneys lined by Chambers’ record with other top rated Supreme Courtroom attorneys not outlined by Chambers. There are numerous means to evaluate Supreme Courtroom accomplishment, but this is one particular additional piece of evidence that the acme of U.S. courts is dominated by a team of veteran attorneys and will go on to be so at the very least for the foreseeable long run.

Posted in Empirical SCOTUS, Featured

Advisable Citation:
Adam Feldman,
Empirical SCOTUS: Not all appeals are equal,
SCOTUSblog (Apr. 18, 2018, 4:33 PM),
http://www.scotusblog.com/2018/04/empirical-scotus-not-all-appeals-are-equal/

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