In Today’s Elite Supreme Court Bar, Is There a Place for Jailhouse Lawyers?
I was encouraged to read New York Times legal correspondent Adam Liptak’s latest Sidebar column: “A Mediocre Criminal, but an Unmatched Jailhouse Lawyer.” The column tells the story of 34-year-old Shon Hopwood, who transformed himself into something of a legal expert while doing time in federal prison for a failed bank robbery:
He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.
The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.
“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”
Now out of prison, Hopwood is hoping to apply to law school for next year, and fittingly enough, has a job with Cockle Printing, an Omaha-based company that specializes in printing… Supreme Court briefs.
Though the story is heartwarming enough on its own, I thought it was particularly striking that Hopwood achieved this feat during a historical moment when a new, high-powered Supreme Court elite was in the process of consolidating its dominance over the highest levels of appellate advocacy. It’s not just that Hopwood achieved something virtually no other jailhouse lawyer can boast, or even that he achieved something that few lawyers, period, can boast; it’s that he achieved something that increasingly fewer and fewer lawyers can boast. In an extended post after the jump, I’ll provide some historical background on the rise over the past 25 years or so of a new, elite Supreme Court bar, and offer some (sketchy) reflections on the possible implications of this development for jailhouse lawyering. (The key scholarly articles for understanding this development, and my main sources for what follows, have been written by Georgetown professor Richard Lazarus, as well as the elite Supreme Court litigator extraordinaire, and once-and-future Chief Justice, John Roberts. Full citations available at the end of the post.)
The Re-emergence of an Elite Supreme Court Bar, 1985-
Though the Supreme Court sits at the apex of the American legal system, paradoxically enough the lawyers who argue before the Court have not always been a particularly distinguished bunch. To be sure, in the early nineteenth century, a handful of eminent lawyers including Daniel Webster and Francis Scott Key dominated Supreme Court practice, but this was a product of geography more than anything else: until the advent of easy rail, road, and air travel, it was difficult for lawyers from other cities to travel to the swampland of Washington, D.C. Once travel became easier, the Supreme Court bar dissipated. Apart from a few notable exceptions—expert advocates like Thurgood Marshall and Archibald Cox, public-interest lawyers from organizations like the ACLU and AFL-CIO, and of course the lawyers who represented the government before the Supreme Court through the Solicitor General’s Office—there was no identifiable group of repeat players before the Supreme Court. Indeed, in the late 1980s Chief Justice William Rehnquist could observe, “there is no such Supreme Court Bar at the present time.”
No sooner had Rehnquist made this observation than the pattern shifted. In 1985, the D.C. office of Chicago law firm Sidley Austin hired former Solicitor General Rex Lee to establish a Supreme Court and appellate practice. Lee’s success at Sidley Austin triggered an arms race in which many of the top Chicago and D.C. law firms, including Mayer Brown, Jenner & Block, Kirkland & Ellis, Hogan & Hartson, Covington & Burling, and WilmerHale, and more recently the top California and Texas law firms including Gibson, Dunn & Crutcher, Baker Botts, and Akin Gump, all established appellate practice groups, bringing on former Solicitors General or Deputies Solicitor General as partners and competing to hire outgoing Supreme Court clerks as young associates. States have responded to the growth of a specialized Supreme Court bar by bolstering their state solicitors generals offices, and elite law schools have joined the fray with the establishment of Supreme Court clinics, beginning with Stanford in 2004 and followed by Harvard, Yale, Virginia, Northwestern, Texas, and NYU.
Today, then, it is newly possible to speak of a “Supreme Court bar” in the sense of a distinct group of elite attorneys who are repeat players before the Court and thus possess a particular expertise, or at least familiarity, in how to frame their briefs and oral arguments in ways likely to be most persuasive to the highest judges in the land. According to data assembled by Georgetown law professor Richard Lazarus (p. 1520), in 1980, some 76% of oral advocates appearing before the Court that year (excluding the U.S. Solicitor General’s Office) were first-timers; by 2000 that figure had declined to 59%, and in 2007 to 43%—less than half. Again excluding the Solicitor General’s Office, in 1980 just seven attorneys who appeared before the Court that year (2% of that year’s total) could boast of ten or more prior Supreme Court arguments, and just eight (3%) had ever argued more than once in the same term. By 2007, those figures had increased by an order of magnitude: that year, the Court heard arguments from some 32 attorneys (28%) with ten or more Supreme Court arguments under their belt, and 28 attorneys (24%) with more than one argument in the same term. These statistics likely understate the involvement of expert counsel since oral arguments are relatively rare, while much of a Supreme Court specialist’s time is devoted to filing briefs, either on the merits or as amici curiae.
Not surprisingly, the demographic profile of the Supreme Court bar mirrors the elite bar more generally. Lazarus writes: “The typical Supreme Court lawyer is a forty-five-year-old, Harvard-educated private practitioner, based in New York, Washington, or Chicago. … He is a liberal white Protestant, with strong attachment to the Democratic party.” Even if lawyers generally are not representative of American society, this is especially true of Supreme Court lawyers, who “are better educated, more liberal, and geographically more concentrated, especially in a few urban areas” (p. 1520).
The causes for the rise of the new Supreme Court elite are not entirely clear. Chief Justice John Roberts has suggested that the Supreme Court itself may have spurred the development as several justices in the early 1980s publicly lamented the poor quality of advocacy before the Court. Lazarus cites increasing competition among law firms as an incentive to create elite practice groups that can help attract corporate business, as well as the shrinking of the Court’s docket which may have made it easier for firms to seize a more dominant role. Other commentators have pointed to the increasing importance of Washington lobbyists in political life, which has in turn expanded the number of lawyers in Washington, and broader trends within the legal profession of specialization and stratification.
Implications for Unpopular Litigants
Whatever the causes of the re-emergence of a Supreme Court bar, what have been its effects? Most obviously, and perhaps most pleasingly to the Court, the general quality of advocacy both in the briefs and at oral argument has improved. For private litigants with expert representation, this may yield a leveling effect reducing the “home-field advantage” long held by the Solicitor General’s Office. But for litigants not represented by expert Supreme Court counsel, it is now much harder to get a hearing before the nation’s highest court. As Lazarus explains (p. 1512),
the competition is … greater because of the sheer quality of the petitions being filed by those Supreme Court experts who know far better than most how to strike the chords most likely to attract the Court’s attention at the jurisdictional stage. A few decades ago, a petition filed without those trappings might nonetheless have been persuasive. Today, however, the private bar petitions are much better and the expectations of the chambers concerning what a petition must accomplish to make out the case for Supreme Court review are correspondingly greater as well.
Obviously, the litigants least likely to have the resources (financial and otherwise) necessary to retain expert Supreme Court representation are precisely those who may be most in need of expert help to go up against the state or a corporation. Thus, aside from the symbolic disparity, the emergence of a Supreme Court bar may also shift the Court’s agenda in favor of the elite. Lazarus has argued that we have already begun to see this type of distorting effect: he traces the rise of the Supreme Court bar to a long-term litigation strategy by the corporate lobby to hire expert lawyers who would better represent their interests before the Supreme Court, and argues that the strategy has paid off, noting that in recent years, and especially under the early Roberts Court, businesses have secured not just grants of cert petitions but also favorable holdings in areas such as antitrust and tort reform. (Other legal observers have pointed out that effective advocacy alone would not have been enough to sway the Supreme Court were the justices not already predisposed to shift in a more pro-business direction.)
Whether or not the Court’s recent pro-business shift can be attributed to the rise of the Supreme Court bar, it seems indisputable that the emergence of a Supreme Court bar dominated by corporate law firms has at least produced a gap in which types of parties can secure the highest-quality appellate representation, particularly in civil matters. Even though Supreme Court practices within corporate law firms do regularly take on pro bono cases, they are skittish about representing plaintiffs in tort or employment lawsuits that might upset their (paying) corporate clients. In theory, some of this gap could be bridged by the new law school clinics. Jeffrey Fisher of the Stanford clinic has suggested as much: “a lot of the cases we do by definition—particularly the employment discrimination cases—are ones where almost all of the Supreme Court practices in the country expressly will not take it because it’s adverse to their business clients and therefore their institutional interest.” But note that Stanford’s clinic is an exception in this respect since it is primarily run by two full-time faculty members; other Supreme Court clinics are taught by attorneys from leading corporate law firms, bringing with them to the law schools their firms’ conflicts of interest. As unpopular litigants go, criminal defendants may suffer less from this burden than tort plaintiffs. Corporate law firms do not generally face the same conflicts of interest in taking on pro bono criminal work, and Sidley Austin, for example, has maintained an active program of pro bono assistance to criminal defense lawyers. Still, pro bono work is necessarily ad hoc, not a systematic solution to the advocacy gap.
Implications for Legal Culture More Generally
The growing stratification of the bar could have farther reaching effects on the legal profession as a whole. The future Chief Justice John Roberts, reflecting on his own experiences as a federal appeals judge and a Supreme Court litigator, observed that even though it is a good thing that the caliber of oral advocacy has improved before the Court (p. 79),
there is no denying that something is lost as the bar becomes more specialized. … If you have a case arising in Iowa that works its way through the Iowa courts, goes to the Iowa Supreme Court, and works its way to Washington, I think there is something beneficial both for the U.S. Supreme Court and certainly for the Iowa bar to have Iowa attorneys present that case.
This last benefit of a diversified Supreme Court bar may be the most amorphous, speculative, and difficult to measure, but also perhaps the most important. Although this view may be overly romanticized, the Supreme Court does hold a place in the public imagination as the court of last resort, and although the numerical odds of “taking one’s case to Washington” may be slim, they (perhaps alone in the American legal system) are not supposed to be tainted by considerations of money or power. The Supreme Court holds a paradoxical position in our countermajoritarian political system, as an elite body that is supposed to protect the rights of the lowest of the low, those whom the majority would be happy to pillory.
In actuality, one need only point to Plessy v. Ferguson or Korematsu to gather that the Court has rarely been the vanguard defender of minority rights that it is sometimes presumed to be, and Michael J. Klarman’s exhaustive historical research on the twentieth-century Supreme Court confirms this intuition. In the exceptional cases where the Court has bucked public opinion, such as Brown v. Board of Education and Roe v. Wade, the result has often been local resistance and popular backlash rather than a genuine expansion of rights. Still, even if the Court’s holdings are often less audacious and, even when bold, less efficacious, than we might imagine, they can serve a valuable inspirational and educative function. Moreover, in some realms the Supreme Court has lived up to the countermajoritarian ideal, and its willingness to extend protections to criminal defendants, particularly under Chief Justice Warren but also in recent years, is a signal example.
So What About Jailhouse Lawyers?
Admittedly, none of this appeal to the Supreme Court’s cultural, democracy-enhancing function is necessarily an argument against an elite Supreme Court bar. Gideon v. Wainwright, one of those iconic decisions in which the Supreme Court ruled on behalf of the “little guy,” was argued by Abe Fortas, a future Supreme Court justice and at that time a partner in a white-shoe D.C. firm. But as the legend goes, and in this case the legend is true, Gideon’s cert petition was hand-scrawled on five pages of jailhouse stationery, focusing on the perceived injustice of his trial without any technical discussion of the relevant Supreme Court precedents. In the words of Lawrence Friedman (p. 210): “It was Clarence Gideon himself, a man at the bottom of the heap, who squawked and demanded his rights. Abe Fortas argued the case; but Gideon’s own stubborn insistence set the process in motion.”
Gideon apparently viewed the Supreme Court as a place where he could seek redress, even though the trial court and every appellate court in Florida had turned him down. However quixotic his quest, he did not consider it beyond the realm of possibility. Gideon’s story highlights the Court’s important place not just in the American legal system, but in American democratic life. Because of this central function of the Supreme Court — which, I’d argue, distinguishes it from lower courts — I’ve wondered about what the re-emergence of an elite Supreme Court bar will mean in the long run for America’s civic culture. As the Supreme Court becomes increasingly viewed, whether within the legal profession, in the general culture, or both, as just a glorified federal courthouse, where highly paid lawyers from elite schools and fancy law firms argue on behalf of their corporate clients and, occasionally for good measure, take on a pro bono criminal or employment discrimination case, and lawyers who don’t fit that description need not apply, it seems unlikely that too many Gideons sitting in a Florida prison will be motivated to write to the Supreme Court in the hopes that this tribunal of last resort might be willing to help them where every other court has refused. (And even if they are motivated, will they have the law library resources necessary to do the research and file the brief?) Moreover, today a handwritten, pro se cert petition like Gideon’s is likely to be thrown out by the first clerk who reads it.
So, anyway, all of this is just a long way around the barn to explain in more detail why I was so encouraged to read about Shon Hopwood. His story gave me a glimmer of hope that there might still be room for a jailhouse lawyer or two in the elite Supreme Court bar of the twenty-first century.
Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 Georgetown L. J. 1487 (2008)
John G. Roberts, Oral Advocacy and the Re-emergence of the Supreme Court Bar, 30 J. Sup. Ct. Hist. 68 (2005)