Are the Elite Supreme Court Advocates Better—or Just Better Known?

In Briefs, Supreme Court by Ross Guberman4 Comments

Of 17,000 lawyers who sought certiorari over nearly a decade, Reuters found that just 66 accounted for almost half the petitions granted. Put another way, for every 200 lawyers who ask the Supreme Court to hear their cases, one of those lawyers is almost as likely to land a case on the docket as the other 199 lawyers combined.

Chief Justice John Roberts is only the most decorated member of this rarified crew. Others include former Solicitors General and appellate stars with resumes shimmering with elite schools, prestigious clerkships, and marquee law firms.

Clients clamor to have these wunderkinds represent them at the Supreme Court. But does the demand for their services reflect better advocacy? Or do their glittering reputations and easy banter with the Justices simply allow them to pick stronger cases and to mold arguments to the tastes of an equally elitist Court?

Just as important, even if these star advocates shine, aren’t others just as good?

To help answer these questions, I reviewed 1,122 merits-stage briefs from the 2019 Term. To reduce the effects of selection bias and the limitations of win-loss records, I obtained BriefCatch scores on each brief. The algorithms draw from an Artificial Intelligence analysis of thousands of first-rate legal documents and judicial opinions, all published well before the 2019 Term. 

I divided the 1,122 briefs into three groups based on the counsel of record:

  • Elite (Ranked in Chambers & Partners, Law360, and so forth)
  • Office of the Solicitor General
  • Everyone Else

I then ranked each group by Reader Engagement Score, a weighted composite BriefCatch score developed through factor analysis:

As the results show, although both “Elite” and “Other” briefs obtained a broad range of scores, the “Elite” scores skew higher. On the one hand, only 20 percent of “Elite” briefs scored below the average for “Other.” But on the other hand, 25 percent of “Other” briefs scored above the average for “Elite” briefs, and 5 percent scored more than an entire standard deviation above that average.

Here are the “Not Elites But Just As Good or Better Than Elites?”

Briefs for Prevailing Party

AuthorCaseBriefShort Brief (under 3500 words)?Party RepresentedRepresentation?
Cendali, Dale M.Lucky Brand Dungarees Inc. v. Marcel Fashions Group Inc.https://perma.cc/DH63-KQ23NoLucky Brands Dungarees, Inc., et al.Prevailing Party
Citron, Eric F.Georgia v. Public.Resource.Org Inc.https://perma.cc/3CAJ-CFXGNoPublic.Resource.Org, Inc.Prevailing Party
Cohen, G. BenRamos v. Louisianahttps://perma.cc/5GSC-UBYUNoEvangelisto RamosPrevailing Party
Crouse, TobyKansas v. Gloverhttps://perma.cc/2LMW-Q6RGNoKansasPrevailing Party
Knight, John A.R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commissionhttps://perma.cc/46TT-8ERXNoAimee StephensPrevailing Party
Komer, Richard D.Espinoza v. Montana Department of Revenuehttps://perma.cc/DSQ8-NB5YNoKendra Espinoza, et al.Prevailing Party
Levy, Michael A.Kelly v. United Stateshttps://perma.cc/C8DA-5BLZNoWilliam BaroniPrevailing Party
Lin, ElbertCounty of Maui, Hawaii v. Hawaii Wildlife Fundhttps://perma.cc/ZFR5-MV4LNoCounty of Maui, HawaiiPrevailing Party
Martinez, RomanBarr v. American Association of Political Consultants Inc.https://perma.cc/C84F-XJD3NoAmerican Association of Political Consultants, Inc., et al.Prevailing Party
Rassbach, Eric C.Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Bielhttps://perma.cc/8JNC-SZNDNoOur Lady of Guadalupe SchoolPrevailing Party
Roth, Yaakov M.Kelly v. United Stateshttps://perma.cc/ED2B-9FMQNoBridget Anne KellyPrevailing Party
Roth, Yaakov M.Kelly v. United Stateshttps://perma.cc/3W54-TEDVNoBridget Anne KellyPrevailing Party
Tu, Travis J.June Medical Services LLC v. Russo; Russo v. June Medical Services LLChttps://perma.cc/3RW4-WABQNoJune Medical Services L.L.C., et al.Prevailing Party
Zabell, Saul D.Altitude Express Inc. v. Zardahttps://perma.cc/K6PQ-WRWHNoAltitude Express, Inc., et al.Prevailing Party

Briefs for Non-Prevailing Party

AuthorCaseBriefShort Brief (under 3500 words)?Party RepresentedRepresentation?
Bursch, John J.R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commissionhttps://perma.cc/GB4T-AV73NoR.G. & G.R. Harris Funeral Homes, Inc.Non-Prevailing Party
Lessig, L. LawrenceChiafalo v. Washingtonhttps://perma.cc/86KP-EPFDNoPeter Bret Chiafalo, et al.Non-Prevailing Party
Schrup, Sarah O’RourkeKahler v. Kansashttps://perma.cc/Z976-9CPYNoJames Kraig KahlerNon-Prevailing Party
Sekulow, Jay AlanTrump v. Vancehttps://perma.cc/YB54-DW2QNoDonald TrumpNon-Prevailing Party
Summa, Richard M.Shular v. United Stateshttps://perma.cc/9AQF-EGQJNoEddie ShularNon-Prevailing Party
Vladeck, Stephen I.Hernandez v. Mesahttps://perma.cc/B9W7-FQMQNoJesus C. Hernández, et al.Non-Prevailing Party

Amicus Briefs

AuthorCaseBriefShort Brief (under 3500 words)?Party RepresentedRepresentation?
Barthold, Corbin K.Atlantic Richfield Co. v. Christian, et al.https://perma.cc/Amicus8X-KMTQNoWashington Legal Foundation Amicus
Bolinder, Eric R.Maine Community Health Options v. United States; Moda Health Plan, Inc. v. United States; Land of Lincoln Mutual Health Insurance Co. v. United Stateshttps://perma.cc/ECZ9-R6W6YesAmericans for ProsperityAmicus
Crespo, Andrew ManuelKansas v. Gloverhttps://perma.cc/W82Z-BRAYNoProfessor Andrew Manuel CrespoAmicus
Dubinsky, Gregory.Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, et al.https://perma.cc/Y8C7-L5CTYesFormer Federal and Local JudgesAmicus
Duncan, Dwight G.Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvaniahttps://perma.cc/2FBS-QBBHYesResidents and Families of Residents at Homes of the Little Sisters of the PoorAmicus
Goodrich, Luke W.New York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/8Q8A-E6R3YesThe Becket Fund for Religious LibertyAmicus
Green, Tyler R.Kahler v. Kansashttps://perma.cc/3VGG-NECVNoState of Utah, et al.Amicus
Green, Tyler R.McKinney v. Arizonahttps://perma.cc/MG2W-JLC7NoState of Utah, et al.Amicus
Gura, AlanNew York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/5225-3Q6CNoCommonwealth Second Amendment, Inc.Amicus
Gutman, BenjaminRamos v. Louisianahttps://perma.cc/HB22-62AFNoState of OregonAmicus
Harris, Sarah M.Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Bielhttps://perma.cc/D6RV-SBNVNoThe Ethics & Religious Liberty Commission of the Southern Baptist Convention, et al.Amicus
Hawley, JoshJune Medical Services LLC v. Russo; Russo v. June Medical Services LLChttps://perma.cc/6VZ5-FNTKYesSenator Josh HawleyAmicus
Klukowski, Kenneth A.New York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/R453-PVB6NoAmerican Civil Rights UnionAmicus
Letter, Douglas N.Seila Law LLC v. Consumer Financial Protection Bureauhttps://perma.cc/L8GE-6QLGNoUnited States House of RepresentativesAmicus
LiMandri, Charles S.Bostock v. Clayton County; Altitude Express Inc. v. Zardahttps://perma.cc/5ZXE-PMAQNoRyan T. AndersonAmicus
Loss-Eaton, Tobias S.Chiafalo v. Washington; Colorado Department of State v. Bacahttps://perma.cc/MN4X-N3BHNoCampaign Legal Center and Issue OneAmicus
Martinez, Judy PerryRomag Fasteners, Inc. v. Fossil, Inc.https://perma.cc/ED3L-MH35YesAmerican Bar AssociationAmicus
Masri, Lena F.Hernandez v. Mesahttps://perma.cc/D56R-L5DTYesCouncil on American-Islamic Relations and Anas ElhadyAmicus
Matz, JoshuaLittle Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvaniahttps://perma.cc/ND2S-F3U7NoChurch-State ScholarsAmicus
Michel, C.D.New York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/AUH5-EQHYNoCalifornia Rifle & Pistol Association, Incorporated and Gun Owners of California, Inc.Amicus
Mizer, Benjamin C.New York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/Z8L6-MRNUNoGiffords Law Center to Prevent Gun ViolenceAmicus
Ramey, E. TravisNew York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/ZKC5-5BNCYesBradley Byrne and 119 Additional Members of the United States House of RepresentativesAmicus
Robinson, David A.Bostock v. Clayton County; Altitude Express Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commissionhttps://perma.cc/8MW5-H62MNoDavid A. RobinsonAmicus
Roth, Michael D.Barr v. American Association of Political Consultants Inc.https://perma.cc/C266-APTBNoHealthcare CompaniesAmicus
Schauf, Zachary C.Barr v. American Association of Political Consultants Inc.https://perma.cc/DT8P-D6BANoMidland Credit Management, Inc.Amicus
Sekulow, Jay AlanUnited States Agency for International Development v. Alliance for Open Society International, Inc.https://perma.cc/CN9D-8SCCNoAmerican Center for Law & JusticeAmicus
Shapiro, IlyaDepartment of Homeland Security v. Regents of the University of California; Trump v. NAACP; McAleenan v. Vidalhttps://perma.cc/B2BS-RXLFNoCato InstituteAmicus
Sherman, Paul M.Barr v. American Association of Political Consultants Inc.https://perma.cc/92MW-H6K9YesInstitute for JusticeAmicus
Thompson, David H.New York State Rifle & Pistol Association Inc. v. City of New Yorkhttps://perma.cc/67KF-HRLYNoNational Rifle Association of America, Inc.Amicus
Tseytlin, MishaBarr v. American Association of Political Consultants Inc.https://perma.cc/47AG-K6RDNoPortfolio Recovery Associates, LLCAmicus
Volokh, EugeneUnited States v. Sineneng-Smithhttps://perma.cc/9RXB-BABGYesEugene VolokhAmicus
Wessler, Matthew W.H.Retirement Plans Committee of IBM v. Janderhttps://perma.cc/8D5E-4ZSSYesAmerican Association for Justice and Public JusticeAmicus

BriefCatch scores are objective and rigorous, but they are still imperfect measures of writing prowess. Not to mention that clients ultimately care about results, not advocacy skill itself. That said, this long list of names suggests that expanding the official Supreme Court Bar could not only diversify representation but encourage some of the laggards in the reining elite to up their brief-writing game.


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Comments

  1. I’m not quite sure how you figured out who’s “elite” (“Ranked in Chambers & Partners, Law360, and so forth” isn’t much of an explanation), but Roman Martinez, who’s argued eight cases in the Supreme Court, came from the Solicitor General’s office, clerked for Kavanaugh and Roberts, and now leads Latham’s appellate practice with Greg Garre, seems elite to me. (Chambers also ranks him as “Up-and-Coming,” whatever that means.) Likewise, John Bursch — former Michigan SG, 12-time oral advocate at the Court, now the top lawyer at a repeat player at the Court (ADF) — seems elite to me too. Same is probably true, for various reasons, of Josh Matz, Misha Tseytlin, and Doug Letter. Finally, in Ramos, though a Ben Cohen was nominally counsel of record, that brief is also signed by Jeff Fisher, who argued the case, along with Pam Karlan and 13-time (with OSG) advocate Brian Fletcher, so I would probably list that as a Fisher brief and group it in the elite category.

  2. Thanks very much for your comments. We used official appellate rankings from 2019 (not including “up-and-coming” or other categories of that ) as external sources for the names of prominent nationally known appellate advocates whom clients and other lawyers trust. Other indicia you mention (clerkships, current position, former positions, or number of appearances before the Court) already factor into those rankings, if only indirectly. I agree that other not-yet-ranked advocates have comparable (or superior) credentials and skills, which was the point of the post.

    I have always attributed briefs to the counsel of record, including in Point Made. No doubt that other signatories deserve more of the credit in some cases, but short of investigating who wrote which iterations of each brief, that method seems the fairest.

  3. It is quite notable that female lawyers are underrepresented in this selection. When your summary refers to “expanding the official Supreme Court Bar” to diversify representation, presumably you are referring to more inclusion of non-elite lawyers as selected by Chambers and Partners and the official appellate rankings. In this selection, from assumptions based on the authors’ names, one female lawyer was selected for authoring a brief on behalf of a party and about five female lawyers out of thirty were selected for authoring amicus briefs. There have been discussions in various articles and social media platforms about diversifying the Supreme Court Bar to include more female lawyers. The issue is an important one that should be considered when discussing diversifying the lawyers who appear before and author briefs filed in the United States Supreme Court. Your point in response to the prior comment may be a factor if female lawyers were more likely to be in a supporting role and were not given credit for authoring significant portions of the briefs.

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