The SCOTUS Practice Cartel
The law firms that control elite Supreme Court practice sell their expensive services in a highly misleading way
Professor Leah Litman, one of the young stars of legal academia, has done great work recently on the tight networks that dominate Supreme Court clerkships and produce the litigators who then argue cases at the high court for the tiny set of big firms that dominate that market. There’s a lot to be said about that subject, but I want to focus on one aspect of it that makes the whole enterprise function- why clients, who pay the bills, hire from such a small group of highly networked law firms with Supreme Court practice groups.
Basically, it works like this. The Supreme Court hires between 27 and 36 clerks a year. That’s a very small number of lawyers. Some of those clerks become law professors (as Litman herself did) or go to work for the government, so that leaves a fairly small number of Supreme Court clerks to be hired by the private market. They get hired by the major firms with Supreme Court practices, and often demand almost a half a million dollars in bonus money upon hiring. Why are they worth so much?
Let’s put aside one thing- it isn’t because they are necessarily the most brilliant lawyers. Heck, there’s no proof that the most brilliant lawyers even attend Harvard and Yale, where the clerks disproportionately come from. Plenty of brilliant prosecutors, criminal defense lawyers, trial litigators, and even appellate lawyers attend second or third tier law schools. Indeed, at some of the most famous high publicity trials, featuring great lawyers, literally nobody went to Harvard or Yale.
And even limiting ourselves to Harvard and Yale, it isn’t as though the only brilliant people at those schools are the Supreme Court clerks.
So what are they getting almost half a million dollars for, up front? Well, think about if you are a well-heeled corporate client with a case before the Supreme Court, which just agreed to hear the case. The head of the Supreme Court practice at Big Law Firm LLC gives you a call and tells you about how her practice group includes recent clerks for six of the nine justices, who have inside information, know how the justices think, and wink-wink, are still friends with and socialize with the justices. Now, of course, we bill at $1200 an hour, which is more than you were paying your lawyers in the lower court proceedings, but you can’t afford to lose this one in the highest court in the land, can you?
Having recent Supreme Court clerks in your practice brings in the big clients, and the big money. And it’s all based on, not to put a fine point on it, a lie.
It’s of course not a lie that specialists in Supreme Court litigation know the Court and its internal procedures and workings better than other appellate lawyers. Indeed, I myself have referred clients to Supreme Court specialists in the past. (This works both ways, by the way. I will never forget a story told to me by a former Ninth Circuit clerk about a famous Supreme Court practitioner coming to the Ninth Circuit to argue a big case and making an absolutely terrible impression because he condescended to that Court’s judges.)
But the notion that recent clerks get clients an advantage? That’s a complete and total lie.
Let’s start here. What do we know about the Supreme Court? Well, we know that in politically charged cases, the Court makes decisions that are heavily influenced by politics. While that narrative is overdone and the Court is only nakedly political in the most political cases, nonetheless it should be perfectly clear that the justices aren’t changing their votes in their cases due to the subtle influence of former clerks on some party’s legal team. Clarence Thomas isn’t going to vote to strike down an abortion restriction just because a former clerk is arguing the case.
But beyond the politically charged cases, the Court is trying to get the law right. We know this because we have recordings of oral arguments, where the justices are constantly asking questions trying to get the law right, and because the Court publishes decisions which are full of attempts to reconcile prior precedents and legal texts and to consider policy implications as the Court tries to get the law right. Again, if what the justices were really doing was voting for their former clerks, you’d be able to tell. You’d see justices all over the place on different cases dealing with similar issues. You’d see Justice Alito voting for an immigrant in one case and then voting against an immigrant making a similar case, but that never happens.
Indeed, you’d also see something else- you’d see state governments losing lots of cases. State government lawyers, for the most part, are not former Supreme Court clerks. And yet they routinely win their cases before the Supreme Court, and criminal defendants, often represented pro bono by big time Supreme Court lawyers, often lose. Why? Because the Court is relatively conservative and favors the government in criminal cases. Indeed, state government lawyers, who are generally not former clerks, seem to do no worse than the US Solicitor General (representing the federal government), which often is a former clerk.
In other words, hiring a firm full of former clerks gives a client no real advantage. But former clerks still get almost half a million dollars to sign on with a firm. Because they DO give those firms an advertising advantage. They can mislead clients into dumping the lawyers who represented them in lower courts, on the implicit promise that having those clerks might sway the Court into ruling their way. It’s a form of false advertising and a disgusting look for my profession.
(At this point I should acknowledge one thing. It is quite true that there are studies that show that the Justices grant review of cases more often when an established Supreme Court practitioner is on the briefs. But, importantly, that is not when these Supreme Court practices usually sweep in. The big money, and the big glory, is in arguing cases before the Court, not working on petitions. Plus, it appears that the Court also takes into account the identity of counsel opposing review, which means that while petitioners might benefit from hiring a Supreme Court practice group, respondents might actually benefit from not hiring one. It’s complicated.)
I don’t really have a solution for this, because the Supreme Court cartel is really driven by the justices themselves, who like their former clerks and want them to do well, and who disproportionately hire clerks from feeder judges and feeder professors at Harvard and Yale. And there’s little that can be done to force the justices to cast a broader net, as they control their own hiring practices. But it’s bad, and it essentially defrauds the people who are paying Supreme Court specialists $1,200 an hour based on a lie.