The price of rights

SL&P has an interesting post and comment thread on the issue of whether attorneys for criminal defendants are out of their league when arguing before the Supreme Court, and are unprepared or file briefs that are not comprehensive?

This raises a few issues:

1. If the U.S. Supreme Court is so great, why does the quality of advocacy matter?;
2. Why is it that I constantly hear judges tell lawyers not to file long briefs, and to not mention certain issues?  (Is it because they are not as smart as the judges on the US Supreme Court, who will always get long, comprehensive briefs – at least from the party that seeks to jail or execute people with greater ease.);
3. Why does Law.com seem to always reach the conclusion that lawyers for large firms or the government are genetically superior, even if they are first-timers at the Supreme Court;
4. Should the U.S. Supreme Court institute real qualifications for its bar.  For example, should it require that all counsel have “substantially prevailed” in at least five cases from Circuit Courts of appeal, and that in two of those cases, the counsel obtained a reversal of the lower court, and that in at least two of those cases, counsel represented someone besides the government?

Comments

[Snowball007]

S. Cotus:

I'm usually in your corner, man, but this time I think your skepticism is misplaced.

First, yes, the quality of advocacy matters at the Supreme Court. Even smart, experienced judges need quality advocacy when the issues are complicated. A lawyer who can present the case in a way that answers the concerns the bench might have about how various arguments will play out in the next case down the road is a lawyer who is genuinely helpful to the Court. It's true that oral argument may not make much of a difference, even at the Supreme Court, but a little difference means a lot when the cases that come to the Court are close ones. Also advocacy includes brief writing as well as oral argument presentation. Together, they can make or break a case.

Second, the judges who whine about long briefs are probably appellate judges in courts of mandatory jurisdiction. The Supreme Court, on the other hand, has a mostly discretionary docket, and it gets to decide what question or questions the parties will address in its cases. So that "concern" doesn't really apply at the Supreme Court.

Third, on balance the Law.com article is a fair one. The qualification for superior Supreme Court practice isn't membership in a big firm. There are noted Supreme Court advocates who come from small shops (e.g., H. Bartow Farr of Farr & Taranto). This shouldn't be a debate between Big Law and small law.

Finally, I don't see how the Court could institute the kind of bar requirement you suggest. Your rule might exclude, for instance, the Indian Law guru and sole practitioner who will be extremely helpful to the Court in a complicated Indian Law case, even if the lawyer mostly advises clients but does very little appellate work. It might also exclude the academic who is a crim pro expert and argues only the odd hard case and, by nature, loses all the time. Your criteria (victory in the Circuits) would also exclude lawyers with a heavy state court practice.

[S. COTUS]

First of all, thank you for your comments. I am subject to persuasion on these matters, so I am taking them to heart.

I am somewhat intellectually curious as to the role that appellate advocacy really plays in making the law. Nobody really can give me a good answer on this. You approach is probably the best anyone can do: experience and intelligence of the advocate matter because they will be able to pick up on the small things. Experience, and time and resources will make it easier to respond to potential questions, and, as is usually the case provide judges with a way around apparent conflicts in the law. On the other hand, since hardly anyone will admit to simply adopting the argument of one litigant or another, then it is really impossible to test this.

You are probably right that the whining judges are mostly in courts of mandatory jurisdiction. That is my guess about the Have Opinion Will Travel guy. I know judges on some courts with partially mandatory and partially discretionary jurisdiction, and they don't seem to be nearly as jaded as the Howt guy.

I think Law.com tends to trumpet the accomplishments of BIGLAW people. Like most commercial products it markets towards a select niche of people. Somewhere along the line, they made a decision not to target small firms or highly-specialized boutiques. Maybe it is my imagination, but they seem to be writing their stories for 3d-year BIGLAW associates without any practical specialization.

Finally, you are probably right again, that my idea for Supreme Court practice requirements is unworkable. As I see it, there are two major problems with SCOTUS practice now: 1) too many amicus briefs; and 2) the problems potentially outlined in the article that started it all. My hope is that the pool of litigators is of the highest degree of expertise, but since the “quality” of lawyer is so darn hard to judge (and most people don't even know where to start in many specialties) it would be hard to declare someone to be a qualified SCOTUS advocate.

[Snowball007]

The role of appellate counsel in making law is indeed fascinating. The classic (if a little dry) treatment of the question is Benjamin Twiss's book Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (1942). The book is probably out of print, but you should be able to find it in a decent university law library.

Twiss gives a survey of the leading lawyers in business/constitutional law cases before the Supreme Court in the late 19th Century. His basic thesis is that they were the key link between the Supreme Court and the business interests seeking "constitutional limitations" on government regulation. He makes a pretty persuasive case that Lochner didn't grow spontaneously out of the pen of Mr. Justice Peckham. Rather, a long series of arguments over the years by business lawyers appearing before the Supreme Court led to the Lochner era.

There are other, discrete examples of lawyers making creative arguments that migrate directly into the law. For instance, I think Marci Hamilton made up the "congruence and proportionality" test the Court adopted in City of Boerne v. Flores.