The Supreme Court Runs Up People's Legal Bills

Antiquated procedures join with the desire of everyone in the legal system to be infused with the prestige of the Court

The Supreme Court’s increasing use of its “shadow docket”, i.e., what we used to call motion practice, decisions on issues such as injunctions and emergency stays without full briefing and argument, has come under a great deal of criticism. Much of that criticism is justified- the Court promulgates standards that are supposed to make such injunctions and stays very rare, but then ignores those standards whenever it wants to reach a (usually conservative) result in a specific case. And while the Court has started to issue more opinions in shadow docket cases, the Court still sometimes decides these crucial issues with one line orders that give no guidance to parties or lower courts.

But the “shadow docket” has also had another effect that I am not sure is that bad. You see, the Supreme Court is an industry, and a costly one. When the Supreme Court takes a case on the merits, especially on an issue of interest to political parties, activist groups, and/or moneyed interests, it gets flooded with amicus curiae briefs. Amicus briefs are supposed to be from “friends of the Court”, who assist SCOTUS by pointing out facts that the parties haven’t necessarily expounded on. Thus, let’s say that a potential result in a pending Fourth Amendment case might have an unintended effect on the smartphone industry. A brief signed by Apple and Samsung pointing out that effect in detail might assist the Court. That’s the theory.

In practice, because very few courts ever deny leave to anyone wishing to file an amicus brief, and SCOTUS almost never does so, what you get instead is the desire of every organization to tell their stakeholders that they filed a brief. Corporate management can report to the Board of Directors and the shareholders that they did it, the activist groups can raise funds based on the filing of the amicus brief, and the lawyers representing rich people and corporations can convince them that it is worth paying their legal fees to write it. And most of these briefs just repeat stuff the Supreme Court already knows. It’s a huge racket and I doubt the justices read 10 percent of the amicus briefs that come in. (Why don’t they crack down? Probably because screening the briefs would be extra work, and also, to be more cynical, because many of their former clerks are hired and paid fees to write the briefs.)

Another big racket is oral argument. Yes, in rare cases, oral argument can clarify things for a court. Former Chief Justice Rehnquist estimated this happened in 5 percent of the cases or less. No matter what you think of Rehnquist, he had no reason to lie about this. And of course, this is common sense. If oral argument were really that important, why would we see all those 5-4 and 6-3 splits in major cases? Clearly, at the very least, we should be able to agree that oral argument in an abortion case or some similar hot button issue isn’t going to affect the Court’s judgment.

But the majesty and ceremony of oral argument is a big selling point, not only for the Court, but especially for the few privileged lawyers who get to do it. Firms that specialize in Supreme Court advocacy charge lots of money for their star litigators, many of whom orally argue before the Court numerous times in their career. And it takes a lot of time to prepare for an appellate argument- the advocate not only has to carefully memorize the record and the key cases, but you need to go through several “moot court” sessions where colleagues (often themselves being paid by the hour) pepper you with questions so that you can formulate the best possible pithy responses and make no mistakes before the Court.

Clients pay for all of this. And for what? It doesn’t change the outcome, but it looks really good for the client. Indeed, the oral argument is something the client can attach him- or herself to, because it seems so important. The Court certainly pretends it is important, with all the “Oyez”’s at the start of the session and all the rest of the ceremony. So we end up billing clients lots of money to participate in a show.

And the great thing about the shadow docket is, there’s no expensive show. The parties file a few briefs, and the Court makes a decision. The lawyers have to work fast, which keeps the bills down for the clients. And the results are likely the same.

Which means, we actually should consider doing more of the Supreme Court’s business that way. I don’t think it would change things for the Justices very much, because they each have several clerks and can find out anything they need to know about a case. It would just mean they don’t have to participate in a hoary ceremony that doesn’t tend to change anyone’s votes.

But what it would do is change the nature of Supreme Court practice. Lawyers would lose the selling point of being an “expert” on Supreme Court oral arguments. Outside groups would have to find another way to show their stakeholders how much they care about pending cases. And everyone would save a lot of money, money that would come out of pockets of my profession. But somehow I’m sure we’d find something else to do.