Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar RICHARD J. LAZARUS* During the past two decades, the Supreme Court has witnessed the emer- gence of an elite private sector group of attorneys who are dominating advo- cacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law, and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increas- ingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate, and they also prevail on the merits more frequently. This Article documents the extent of the modern Bar’s domina- tion of the Court’s docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar’s primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future. TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1488 I. THE MODERN RE-EMERGENCE OF A SUPREME COURT BAR . . . . . . . . 1491 II. EXPLAINING THE RISE OF THE MODERN SUPREME COURT BAR . . . . . . 1502 A. THE TRANSFORMATION OF THE CORPORATE BAR . . . . . . . . . . . . . 1504 B. THE PARADOX OF THE COURT’S SHRINKING DOCKET . . . . . . . . . . . 1507 III. THE SIGNIFICANCE OF THE MODERN SUPREME COURT BAR FOR THE COURT AND THE NATION’S LAWS . . . . . . . . . . . . . . . . . . . . . . . . . 1521 * Professor of Law & Faculty Director, Supreme Court Institute, Georgetown University Law Center. © 2008, Richard J. Lazarus. I would like to thank Tom Merrill, Mark Tushnet, Charles Rothfeld, Michael Gottesman, Vicki Jackson, David Vladeck, Steve Goldblatt, and Amanda Leiter, and participants in the search for extensive comments on an earlier draft. The Georgetown University Law Center Library, especially Jennifer Locke Davitt, provided wonderful historical research on a variety of topics, including on advocates appearing in the nineteenth and early twentieth centuries. I also benefited from outstanding research assistance from Sara Colangelo and Kelly Falls, Georgetown University Law Center Class of 2007, Jim Harper and Susannah Foster, Georgetown University Law Center Class of 2008, and Erika Kranz, Georgetown University Law Center Class of 2009. 1487 1488 THE GEORGETOWN LAW JOURNAL [Vol. 96:1487 A. SHIFTING THE PLENARY DOCKET . . . . . . . . . . . . . . . . . . . . . . . . 1522 1. Antitrust Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1532 2. Tort Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1534 3. Norfolk Railway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1537 B. CHANGING THE OUTCOME . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1539 C. CHANGING THE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1550 D. PROMOTING PARITY IN SUPREME COURT ADVOCACY . . . . . . . . . . . 1554 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1563 INTRODUCTION The fourth Wednesday in April is typically the last regularly scheduled day of oral arguments before the Supreme Court of the United States. For the most recently completed October Term 2006, the date was April 25, 2007, and the Court closed its argument session by hearing two hours of oral argument presented by six advocates in three cases, the first two of which were consoli- 1 dated for purposes of argument. The Court’s rulings on the merits several months later garnered, as to be expected, significant attention from the national 2 news media and will invariably generate a spate of commentary in the nation’s law reviews. What is wholly absent, however, from that media scrutiny and scholarly commentary is any recognition of the significance for the Supreme Court and the nation’s laws, of the identity of the advocates who argued before the Court on April 25, 2007. The six advocates before the Court on that final day of argument underscore the emergence of a modern Supreme Court Bar whose expertise in Supreme Court advocacy has quietly transformed the Court’s docket and its substantive rulings. In sharp contrast to the typical attorney appearing before the Justices throughout much of the twentieth century, each of the six attorneys was an experienced Supreme Court advocate. The attorney with the least experience had filed briefs in twenty-five cases before the Court and this was his fifth oral 3 argument since 2002. Each of the five other attorneys had all appeared before 1. During the two hours of oral argument, the Court considered a total of three cases. The first two cases were consolidated cases raising an as-applied challenge to the constitutionality of federal campaign finance law (Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), and McCain v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007)), and the third case concerned the applicability of a federal law providing for removal of actions from state to federal court (Watson v. Philip Morris Cos., Inc., 127 S. Ct. 2301 (2007)). 2. See, e.g., Robert Barnes, 5-4 Supreme Court Weakens Curbs on Pre-Election TV Ads; Ruling on McCain-Feingold Law Opens Door for Interest Groups in ’08, WASH. POST, June 26, 2006, at A1; Linda Greenhouse, Justices Loosen Ad Restrictions in Campaign Law, N.Y. TIMES, June 25, 2007, at A1. 3. James Bopp, counsel for respondent Wisconsin Right to Life, previously presented oral argument before the Court in Wisconsin Right to Life v. Federal Election Commission, 546 U.S. 410 (2006); 2008] ADVOCACY MATTERS BEFORE THE SUPREME COURT 1489 the Court on multiple occasions that Term and more than twenty other times 4 5 during their careers. They included the current Solicitor General, who was arguing his eighth case during October Term 2006, an Assistant to the Solicitor 6 7 General, who has argued thirty-six cases, two former Solicitors General, who have argued before the Court fifty and forty-six times, respectively, and one 8 former Assistant to the Solicitor General, who was not only presenting his twenty- 9 first oral argument, but had argued a little over a week before in another case. No doubt today’s Supreme Court Bar pales in several respects in comparison to the Bar’s heyday in the early nineteenth century when a few extraordinary attorneys dominated oral argument before the Court. Arguing as many as three hundred cases, Walter Jones, Daniel Webster, William Wirt, William Pinkney, Thomas Emmett, Littleton Tazewell, Frances Scott Key, and Luther Martin, among a handful of others, presented argument in some of the young nation’s 10 most famous cases, including M’Culloch v. Maryland, Trustees of Dartmouth 11 12 13 College v. Woodward, Martin v. Hunter’s Lessee, and Gibbons v. Ogden. The Supreme Court Bar today is certainly far less flamboyant—one is unlikely to see a prominent advocate nowadays arguing, like William Pinkney, with 14 “amber-colored doeskin gloves” on, or, like Luther Martin, intoxicated and Randall v. Sorrell, 126 S. Ct. 2479 (2006); Federal Election Commission v. Beaumont, 539 U.S. 146 (2003); and Republican Party of Minnesota v. White, 536 U.S. 765 (2002). 4. The number of oral arguments for attorneys in these cases and other cases in this Article was determined based on a series of steps. The first step was a LEXIS search of the counsel’s name within a prescribed number of words of the word “argued,” which is how the Court describes the counsel presenting oral argument. The range of words used was deliberately large so that more than the correct number of cases were captured by the search. To identify which of those cases were ones in which counsel in fact presented oral argument, each individual case was examined in order to eliminate from the list cases where counsel’s name was listed, but he was actually serving in that case as a co-counsel not presenting oral argument, or the person presenting argument was in fact a different person with a similar last name. More recent cases were also double-checked by reference to the Supreme Court’s online database. One had to be careful not to require both first and last names for the initial searches because counsel who present argument in their capacity as government lawyers are typically referred to in the U.S. Reports only by their title and last name (for example, Solicitor General Seth Waxman is described only as Solicitor General Waxman). Finally, for some of the advocates with higher numbers, those individuals were e-mailed to see if their personal counts coincided with my own. 5. Solicitor General Paul Clement. 6. Assistant to the Solicitor General Irving L. Gornstein. 7. Former Solicitors General Seth Waxman, now with WilmerHale, and Ted Olson, now with Gibson, Dunn & Crutcher. 8. Former Assistant to the Solicitor General David C. Frederick, now with Kellogg, Huber, Hansen, Todd, Evans & Figel. 9. Frederick served as counsel of record for petitioner in Powerex Corp. v. Reliant Energy Services, Inc., 127 S. Ct. 2411 (2007) (the case was argued April 16, 2007). 10. 17 U.S. (4 Wheat.) 316 (1819). 11. 17 U.S. (4 Wheat.) 518 (1819). 12. 14 U.S. (1 Wheat.) 304 (1816). 13. 22 U.S. (9 Wheat.) 1 (1824). 14. David C. Frederick, Supreme Court Advocacy in the Early Nineteenth Century, 30 J. SUP. CT. HIST. 1, 4–5 (2005). 1490 THE GEORGETOWN LAW JOURNAL [Vol. 96:1487 15 wearing soiled, old-fashioned clothes. Nor would an advocate today be likely to replicate Daniel Webster’s reported feat of “interrupt[ing] oral argument when a bevy of admiring ladies entered the courtroom to listen to him—and 16 beg[inning] again from the beginning for their benefit.” Perhaps because today’s Supreme Court advocates lack any comparable color, what has gone wholly unrecognized by all, including legal scholars, is how the re-emergence of a Supreme Court Bar of elite attorneys similar to the early-nineteenth-century Bar in its domination of Supreme Court advocacy is 17 quietly transforming the Court and the nation’s laws. The influence of expert advocates is likely greatest at the jurisdictional stage when the Court’s resources are stretched the most and the Court most depends on the skills of the advocates in sifting through the thousands of petitions seeking review. But there is good reason to believe that their influence reaches the Court’s rulings on the merits as well, just as it did in the early nineteenth century. Indeed, the influence of these new elite lawyers is no longer confined to advocacy before the Court. It now extends to advocacy within the Court itself as the modern Supreme Court Bar has become a training ground for the Justices themselves, as realized in the President’s selection of the newest Chief Justice. This Article explores the emergence of a new elite Supreme Court Bar and the resulting transformation of the Court, its plenary docket, and its rulings. The first Part of the Article describes the re-emergence in recent decades of an elite group of private and public sector lawyers who practice before the Court. The second Part of the Article considers several possible explanations for the rise of the modern Bar, including the paradox presented by the re-emergence of a Supreme Court Bar at precisely the time when the Court’s merits docket has been significantly decreasing. The third Part of the Article evaluates the signifi- cance of the Bar’s increasing domination of advocacy before the Court and concludes that it is likely affecting the Court’s docket and its rulings on the merits because of the impact of better advocacy before the Court and, with a member of the Bar now on the Court, also because of the potential for better advocacy within the Court. Most notable is the remarkable success recently enjoyed by the business community in both obtaining Court review and then in prevailing on the merits. The U.S. Chamber of Commerce during the most recently completed October Term 2006 had its “highest winning percentage in 15. G. Edward White, The Marshall Court and Cultural Change, 1815–1835, in 3 HISTORY OF THE SUPREME COURT OF THE UNITED STATES 230, 237, Paul A. Freund & Stanley N. Katz eds., 1988 (internal citations and quotations omitted). 16. S.W. Finley, Daniel Webster, Packed ’Em In, 1979 SUP. CT. HIST. SOC’Y Y.B. 70, 70. 17. For the purposes of this Article, my measure of an expert Supreme Court advocate is someone who has either him- or herself presented at least five oral arguments before the Court or works with a law firm or other organization with attorneys who in the aggregate have presented a total of at least ten arguments before the Court. See infra note 73 and accompanying text. 2008] ADVOCACY MATTERS BEFORE THE SUPREME COURT 1491 18 its 30-year history,” winning thirteen out of fifteen cases, which appears to be directly traceable to the rise of the modern Supreme Court Bar. For this same reason, however, there is cause for concern that the re-emergence of a dominant Supreme Court Bar may be skewing disproportionately the Court’s docket and rulings on the merits in favor of those monied interests more able to pay for such expertise. The Article concludes by discussing this possibility as well as methods for its redress. I. THE MODERN RE-EMERGENCE OF A SUPREME COURT BAR Strictly speaking, to be a member of the Supreme Court Bar today is not a big deal. Although attorneys routinely tout their membership in the Bar as a meaningful credential of distinction, the Supreme Court Bar is one of the least discerning clubs. The Court itself has characterized an attorney advertisement 19 that emphasizes the fact of membership in its Bar as “at least bad taste.” The qualifications for membership are minimal: three years as a practicing lawyer admitted to any bar of any state, a certificate of good standing from that bar, sponsorship by two current members of the bar, and a $200 check payable 20 to the Court. According to a recent American Bar Association survey, there are 21 currently 1,116,967 licensed lawyers in the United States. The Supreme Court 22 reports that there are 262,684 members of the Supreme Court Bar. Of course, relatively few of the thousands of members of the Supreme Court Bar have ever filed a brief in the Court, let alone represented a party in a case granted review or presented oral argument before the Justices. Nor, until relatively recently, had those few members of the Bar who do appear before the Court formed the kind of identifiable group of expert Supreme Court practitioners, such as Webster, Jones, and Wirt, that dominated advocacy 23 before the Court during the nineteenth century. The virtual monopoly that a 18. Michael Orey, The Supreme Court: Open for Business: The Roberts Court Is Showing a Willingness to Referee Corporate Concerns, BUS. WK., July 9, 2007, at 30; see infra text accompanying notes 283–91. 19. See In re R.M.J., 455 U.S. 191, 205 (1982) (“The emphasis of this relatively uninformative fact is at least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court.”). 20. SUP. CT. R. 5. The membership fee was only $100 from 1979 until July 2007, when the Court upped the amount to $200, effective October 1, 2007. 21. AMERICAN BAR ASSOCIATION, LAWYER DEMOGRAPHICS (2006), http://www.abanet.org/marketresearch/ lawyer_demographics_2006.pdf. 22. E-mail from Jennifer Locke Davitt, Faculty Services Librarian, Georgetown University Law Center, to author (Jan. 31, 2007) (on file with author) (number provided by clerk of bar admissions at the Supreme Court for the United States). One limitation of the Court’s listing of members of the Supreme Court Bar is that the Court does not require any kind of annual fee or re-enrollment to maintain membership. Upon joining once, an attorney is a permanent member of the Court’s Bar absent a formal disbarment action by the Court. KEVIN T. MCGUIRE, THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY 30 (1993). 23. According to a compilation prepared by the Supreme Court, Walter Jones, Daniel Webster, and William Wirt are the top three oral advocates before the Court in terms of frequency of appearances, 1492 THE GEORGETOWN LAW JOURNAL [Vol. 96:1487 handful of lawyers possessed over Supreme Court advocacy during that early part of the nation’s history was largely the result of geography. Washington, D.C., was literally a swampland, and travel from major cities such as New York City or Boston was too difficult for leading members of their respective 24 bars. That is why lawyers from Maryland, Virginia, and Pennsylvania enjoyed such prominence before the High Court. “‘[O]ne-fifth to one-fourth of all the cases appearing in the volumes of the reporters, Henry Wheaton and Richard Peters . . . were argued by Francis Scott Key, John Law, Thomas Swann, Walter Jones or Richard S. Coxe—all local counsel residing in or about Washing- 25 ton.”’ But, for that same reason, as travel became easier, the Supreme Court Bar naturally and gradually lost its cohesiveness by the latter-half of the 26 nineteenth century. Throughout most of the twentieth century, there were similarly only a few identifiable, highly skilled individuals, such as John W. Davis, Charles Evans Hughes, Charles E. Hughes, Jr., Thomas D. Thacher, Thurgood Marshall, Erwin Griswold, and Archibald Cox, who appeared regularly before the Justices. Most lawyers with Supreme Court cases were newcomers, most likely arguing for the first time. But in no event was there a discrete, coherent group of private lawyers dominating the cases before the Court, capable of boasting a sustained, continuous Supreme Court practice. The only significant, ongoing concentration of Supreme Court expertise during this time period was in the Office of the Solicitor General, representing the United States before the Court. Not coincidentally, Davis, Thacher, Mar- 27 shall, Griswold, and Cox each served as Solicitor General. Attorneys in that small office regularly filed briefs and presented oral argument in cases before the Court. The ten attorneys who have argued the most cases before the Court since the beginning of the twentieth century all worked with the Solicitor 28 General’s Office for a significant part of their careers. Only one attorney in the although for each the Court notes that there is some dispute about the precise total number of cases argued. See Supreme Court of the United States, Information Sheet: Most Argued Supreme Court Cases (Aug. 2005) (on file with author). 24. See WHITE, supra note 15, at 202 (“As late as 1812 Joseph Story anticipated that the trip from Washington to Boston would take twelve days; from Washington to Charleston took even longer.”). 25. MCGUIRE, supra note 22, at 13–14 (quoting CHARLES WARREN, A HISTORY OF THE AMERICAN BAR 368 (1939)). 26. Id. at 19. 27. LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 668–69 (4th ed. 2003). 28. According to an official compilation prepared by the Supreme Court in August 2005, the following attorneys, each of whom worked for the Solicitor General’s Office, presented (from highest to lowest) the most oral arguments before the Court since the beginning of the twentieth century: Lawrence G. Wallace (157); John W. Davis (140); Erwin N. Griswold (118/124/127); Edwin Kneedler (89); Archibald Cox (85); Daniel M. Friedman (80); John Sergeant (63); Andrew Frey (62); Michael Dreeben (57); and Jeffrey Minear (56). The Court reports multiple numbers for Griswold because of some uncertainty in counting cases. See Supreme Court of the United States, Information Sheet: Most Argued Supreme Court Cases (Aug. 2005) (on file with author). Because Edwin Kneedler, Andrew 2008] ADVOCACY MATTERS BEFORE THE SUPREME COURT 1493 29 top twenty and only two out of the top thirty did not work with that Office. The percentage of non-government attorneys regularly and repeatedly appearing before the Justices steadily declined from the heights achieved by the private 30 Supreme Court Bar in the nineteenth century. The resulting advantage in expertise that attorneys within the Solicitor Gener- al’s Office gained is one reason for the high rate of success that the federal government has enjoyed before the Court in recent decades. The Court plainly provides the Solicitor General’s legal arguments with heightened respect be- cause of the nature of his client—the United States—and the deference that the judicial branch naturally owes in many legal settings to the views of counsel representing the interests of the two other branches of government. But, the Solicitor General’s influence is not simply a reflection of the nature of the client interests being represented. As a repeat player before the Court, the Solicitor General and attorneys within that Office work hard to gain the Court’s trust and to earn a reputation for integrity in a way that only a repeat player has an opportunity to do. And, for much of the twentieth century, the Solicitor Gener- al’s Office stood alone in that respect, especially as the rise of the national government inevitably thrust the Solicitor General into an increasing percentage of the Court’s docket. The Court grants the Solicitor General’s petitions for writ of certiorari at a rate of several orders of magnitude higher than anyone else’s—about 70% of 31 the time compared to less than 3–4% for others. The Court almost always Frey, Michael Dreeben, and Jeffrey Minear have each argued additional cases since the Court’s compilation in 2005, each of their totals is now even higher. 29. Larry Gold of Bredhoff & Kaiser is the only attorney listed in the top twenty who did not once work in the Solicitor General’s Office, and Laurence Tribe is the only additional attorney in the top thirty not to have done so. See Supreme Court of the United States, Information Sheet: Most Argued Supreme Court Cases (Aug. 2005) (on file with author). 30. A canvassing of the attorneys appearing before the Justices in the 1840, 1900, and 1940 Terms illustrates the trend. See Jennifer Locke Davitt, Oral Advocates Before Supreme Court Terms 1840, 1900, and 1940 (Sept. 2006) (unpublished document prepared for author by Georgetown University Law Center Library, on file with author). 1840 Term 1900 Term 1940 Term Total Number of Advocates 44 271 296 Advocates Arguing Two or More Cases 12 (27%) 51 (19%) 37 (13%) Non-Government Advocates Arguing Two or More Cases 11 (25%) 45 (17%) 20 (7%) Advocates Arguing One Case 32 (73%) 220 (81%) 259 (88%) 31. Corey A. Ditslear, Office of the Solicitor General Participation Before the U.S. Supreme Court: Influences on the Decisionmaking Process 32 (2003) (unpublished Ph.D. dissertation, Ohio State University) (on file with author); Mark A. Jones, An Influence Above the Federal Interest: The Solicitor General’s Pervasive Participation in Supreme Court Litigation 16 (April 2006) (unpublished manu- script, on file with author) (statistical survey of Solicitor General’s Participation in Supreme Court as petitioner, respondent, and amicus curiae); see H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN 1494 THE GEORGETOWN LAW JOURNAL [Vol. 96:1487 grants the Solicitor General permission to participate in oral argument as amicus 32 curiae, yet rarely grants similar permission to any other amicus. The Court uniquely invites the Solicitor General to file an amicus brief advising the Court at the jurisdictional stage whether review should be granted in a host of cases 33 each year, and almost every time the Court follows the Solicitor General’s 34 advice. And, on the rulings on the merits, the Solicitor General wins in the vast majority of cases in which the federal government participates either as a 35 party or as an amicus. Like all other parties, its success rate is much higher as a petitioner or an amicus supporting a petitioner than as a respondent or amicus supporting respondent, but the federal government has historically enjoyed far more favorable rulings in all of these roles than have others. In recent decades, when on petitioner’s side (either as the petitioner or as supporting amicus), the Solicitor General won 75% of the time, compared to petitioners otherwise winning 61% of the time, and when the Solicitor General filed on respondent’s side, that position prevailed in 52.4% of the time, compared to a success rate of 36 only 35.4% for respondents in the absence of the Solicitor General’s support. A petitioner’s chances of winning increase by an average of 17% if supported by an amicus brief filed by the Solicitor General and decrease by an average of THE UNITED STATES SUPREME COURT 128–33 (1991) (discussing Solicitor General’s office and its success appealing to the Court). 32. For instance, during October Terms 2005 and 2006, the Solicitor General moved to participate in oral argument as amicus curiae a total of seventy-nine times and the Court denied the Solicitor General’s motion only once. See Martin v. Capital Franklin Corp., 545 U.S. 1162 (2005) (denying Solicitor General’s motion to participate in oral argument as amicus curiae). 33. REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW 142–45 (1992). 34. For instance, during October Term 2004, the Supreme Court invited the Solicitor General to express the views of the United States in eleven cases. The Court followed the Solicitor General’s recommendation in all eleven cases, granting review in Texaco v. Dagher, 543 U.S. 1143 (2005) (requesting Solicitor General’s opinion), cert. granted, 545 U.S. 1138 (2005); IBP, Inc. v. Alvarez, 541 U.S. 1028 (2004) (requesting Solicitor General’s opinion), cert. granted, 543 U.S. 1144 (2005); Merck KGaA v. Integra Life Sciences I, Ltd., 543 U.S. 805 (2004) (requesting Solicitor General’s opinion), cert. granted, 543 U.S. 1041 (2005); and American Trucking Ass’n v. Michigan Public Service Commission, 541 U.S. 1084 (2004) (requesting Solicitor General’s opinion), cert. granted, 543 U.S. 1086 (2005); and denying review in Honeywell International Inc. v. Hamilton Sundstrand Corp., 543 U.S. 954 (2004) (requesting Solicitor General’s opinion), cert. denied, 545 U.S. 1127 (2005); Bank of China v. NBM L.L.C., 543 U.S. 923 (2004) (requesting Solicitor General’s opinion), cert. dismissed, 546 U.S. 1026 (2005); Comstock Resources, Inc. v. Kennard, 543 U.S. 923 (2004) (requesting Solicitor General’s opinion), cert. denied, 545 U.S. 1139 (2005); McFarling v. Monsanto Co., 543 U.S. 923 (2004) (requesting Solicitor General’s opinion), cert. denied, 545 U.S. 1139 (2005); Keup v. Wisconsin Department of Health and Family Services, 543 U.S. 806 (2004) (requesting Solicitor General’s opinion), cert. denied, 545 U.S. 1149 (2005); Hewlett-Packard Co. Employee Benefits Organization Income Protection Plan v. Jebian, 542 U.S. 935 (2004) (requesting Solicitor General’s opinion), cert. denied, 545 U.S. 1139 (2005); and Ward v. South Carolina, 541 U.S. 1040 (2004) (requesting Solicitor General’s opinion), cert. denied, 543 U.S. 808 (2004). See also SALOKAR, supra note 33, at 136 (noting that the Court agreed with the Solicitor General’s jurisdictional recommendation in twenty-six out of thirty cases during October Term 1984). 35. SALOKAR, supra note 33, 142–50. 36. Ditslear, supra note 31, at 34–35. In October Term 2001, the Solicitor General enjoyed an extraordinary 84% success rate. See Tony Mauro, Shadows and Light for Solicitor General Ted Olson, It Was a Year of Unexpected Triumph and Unimaginable Loss, LEGAL TIMES, July 1, 2002, at 1. 2008] ADVOCACY MATTERS BEFORE THE SUPREME COURT 1495 approximately 26% if the Solicitor General instead files an amicus brief in 37 support of respondent. While the Solicitor General’s Office’s most high profile responsibilities are the filing of merits and presentation of oral arguments before the Supreme Court, the fifteen to twenty attorneys within that Office have broader responsibili- ties, which no doubt also play a role in their high degree of success before the Court. They file hundreds of oppositions to petitions for writ of certiorari in cases the federal government won below, trying to keep cases and issues from the Court, especially when presented in potentially unfavorable postures. The Solicitor General is also responsible for deciding whether the government can 38 appeal from any loss suffered in district court. This oversight role helps ensure that the government is not making meritless arguments before the courts of appeals in general and, more particularly, decreases the chances that the govern- ment will prevail in federal appellate court on a theory that the Solicitor General would find indefensible in the Supreme Court. When that does happen, the Solicitor General will confess before the Court, something that happens a 39 handful of times each year. Commentators have offered competing theories for why the Solicitor General does so well before the Supreme Court, including the Office’s willingness, not easily replicated by many private counsel, to decline a client’s entreaty to seek 40 Supreme Court review or to press certain arguments. The Solicitor General’s longer-term interest in representing the United States—and not just a particular client in a particular case—provides the Solicitor General with far more indepen- 41 dence and authority in crafting litigation strategies before the High Court. The Solicitor General’s conception of the interests of the “United States” may or may not coincide precisely with the narrow concerns of the particular client that is more directly and immediately involved in the specific case then before the 42 Court. More than just a craftsman taking the legal arguments of others and 37. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 803–04 (2000). 38. Drew S. Days, III., No Striped Pants and Morning Coat: The Solicitor General in the Lower Federal Courts and State Courts, 11 GA. ST. U. L. REV. 645, 646–50 (1995). 39. See David W. Rosenzweig, Note, Confession of Error in the Supreme Court by the Solicitor General, 82 GEO. L.J. 2079, 2080 (1994) (“While precise figures are not available, Solicitors General have confessed error in the Supreme Court approximately 250 times in the past 100 years, or two to three times per term on average.”). 40. See, e.g., SALOKAR, supra note 33, at 175–80; Michael Bailey et al., Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decisionmaking, 49 AM. J. POL. SCIENCE 72, 73 (2005). 41. Drew S. Days, III., In Search of the Solicitor General’s Clients: A Drama with Many Characters, 83 KY. L.J. 485, 487–88 (1995). 42. Rex E. Lee, Lawyering for the Government: Politics, Polemics and Principle, 47 OHIO ST. L.J. 595, 597 (1986) (“[T]here is a widely held, and I believe substantially accurate, impression that the Solicitor General’s office provides the Court from one administration to another—and largely without regard to either the political party or the personality of the particular Solicitor General—with advocacy which is more objective, more dispassionate, more competent, and more respectful of the Court as an institution than it gets from any other lawyer or group of lawyers.”). 1496 THE GEORGETOWN LAW JOURNAL [Vol. 96:1487 making them sound more persuasive, the Solicitor General routinely rejects legal arguments that the government has advanced (even successfully) in the lower courts in favor of new and often radically different legal theories that it believes possess greater validity, more force, and are more likely to lead to a 43 ruling favorable to the broader interests of the United States. The Court, moreover, is aware of the kind of judgment exercised by the Solicitor General in deciding which cases warrant the Court’s review and what arguments possess sufficient merit to be pressed, which naturally enhances the 44 credibility of those cases and arguments when advanced before the Court. The Solicitor General authorizes a petition for a writ of certiorari in only a small 45 fraction of the cases that the United States loses in the lower courts. Former Solicitor General Rex Lee estimated that he declined five out of every six client agency requests for Supreme Court review “not because he disagree[d] with [his client agency’s] position, but solely because he perceive[d] that filing that case 46 might affect his relationship with the Court.” But one factor that plainly plays a significant role in the Solicitor General’s success is the sheer expertise in Supreme Court advocacy of the attorneys in 43. Indeed, based on my own experience as an Assistant to the Solicitor General in the Office, my years since litigating in cases in which the Solicitor General is involved, and in now preparing advocates for oral argument before the Court, the Solicitor General’s practice of reformulating legal arguments before the Supreme Court seems virtually routine. Opposing counsel just as routinely complain bitterly about these shifts in the government’s legal arguments. But the Court generally seems less bothered, perhaps just viewing the shifts as the inevitable changes that occur if, as the Court hopes will happen, the Solicitor General is constantly rethinking the validity and the force of the govern- ment’s arguments to ensure that the Court has before it the best legal arguments possible. 44. Interviews with the Justices and their law clerks have confirmed that the Court is aware of the Solicitor General’s practice of rigorously screening client agency requests for authorization to file a petition for Supreme Court review and, as a result, the Justices and their clerks give the Solicitor General’s petitions, when filed, special deference. See PERRY, supra note 31, at 128–33. 45. According to one study of the Solicitor General’s Office practices from 1952 through 1962, the Solicitor General authorized appeal in only 43.6% of the government’s district court losses and certiorari petitions in only 11% of all cases lost in the federal courts of appeals. See SALOKAR, supra note 33, at 18. Not all those requests for certiorari, however, are truly requests for plenary Court review. For instance, that same study states that during October Term 1979 the Solicitor General filed 67 petitions for a writ of certiorari and declined agency requests 426 times. Id. at 3. The number “67,” however, could be misleading to some readers because it invariably includes a host of protective petitions routinely filed by the Solicitor General to allow the Court to hold a case pending its disposition of a related case already before the Court and therefore is not a true candidate for plenary review. The Solicitor General routinely files such protective petitions numerous times during the course of a Term because the United States is litigating the same legal issue before the Court in other cases and wants to allow its lower court cases to stay alive pending the Court’s ruling. For instance, during October Term 2000, the Court granted, vacated, and remanded twelve cases for further consideration in light of its ruling in a federal immigration law case, Zadvydas v. Davis, 533 U.S. 678 (2001). See INS v. Khorn, 533 U.S. 943 (2001); INS v. Mounsaveng, 533 U.S. 943 (2001); Fasano v. Phan, 533 U.S. 943 (2001); INS v. Srimenagsam, 533 U.S. 943 (2001); INS v. Nguyen, 533 U.S. 944 (2001); INS v. Chhun, 533 U.S. 944 (2001); Ashcroft v. Lim, 533 U.S. 944 (2001); INS v. Tran, 533 U.S. 944 (2001); INS v. Ourk, 533 U.S. 944 (2001); INS v. Phetsany, 533 U.S. 944 (2001); INS v. Le, 533 U.S. 944 (2001). The Court acts on those protective petitions within a few weeks of handing down its ruling on the merits in the cases accepted for plenary view. 46. Lee, supra note 42, at 598.