This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008.
This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits.
The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.
The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector,
Mich. L. Rev. Online
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