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Has the proliferation of BigLaw Supreme Court specialists had a distorting effect—on both the SCOTUS docket and the development of certain areas of the law?
The latest installment of the ” series examines the effect of the rise of the SCOTUS Specialist: “Thirty years ago, 6 percent of cases accepted by the court were brought by lawyers specializing in Supreme Court advocacy … In the term that ended in 2008, the number topped 50 percent.” Today, an active Supreme Court practice is a both a “loss leader and reputation enhancer” for top tier firms. A few firms go so far as to list a “Supreme Court” practice area on their sites (e.g., WilmerHale, Arnold & Porter).
The NYT piece cites a forthcoming law review article in which NYU lawprof Nancy Morawetz warns, “The competition for cases that may be heard by the Supreme Court on the merits creates disincentives for the new Supreme Court bar to engage in full case analysis prior to accepting a case for representation.” Or in the blunter words of Cornell’s John Blume: “If you’re in the get-to-the-podium business, it could compromise your judgment.”
Offered as a cautionary tale for this trend is the case of Humberto Fernandez-Vargas, a deported Mexican national. Supreme Court specialist David Gossett of Mayer Brown stepped in relief of Fernadez-Vargas’ immigration lawyer only to lose the case before the Supremes and, according to some, establish damaging precedent for immigrants nationwide:
Overburdened public interest lawyers might be expected to welcome the high-powered help. But the old guard is often wary of, if not hostile toward, the new breed of skilled and ambitious advocates, fearing that they are more interested in the glory of a Supreme Court argument than in what is best for their clients and the development of the law.
Indentified as a “pioneer” in the growth the specialized Supreme Court bar is was Thomas Goldstein of Akin Gump (and SCOTUSblog). Early on, Goldstein identified circuit splits and then cold-called the one of (or was it both?) the parties’ counsel and offered to pitch in pro bono. In a 2000 American Lawyer article, now Chief Justice (and then- Hogan & Hartson partner) John Roberts was quoted sneering at this tactic: “If I’m going to have heart bypass surgery, I wouldn’t go to the surgeon who calls me up. I’d look for the guy who’s too busy for that.”
-posted by brian
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