Over at Twitter, Mike Sacks posted an interesting question about the agreement rate between Justices Scalia and Thomas during October Term 2012:

Comparing agreement rates for partial Terms can be tricky because the Court releases a disproportionate number of unanimous and 8-1 opinions early in the Term, and a disproportionate number of 5-4 and 6-3 opinions late in the Term. Therefore, if you want to figure out whether Justices Scalia and Thomas have been disagreeing more than usual, you have to look at how they’ve historically agreed through that point in past Terms.

I have interim numbers for Terms from October Term 2008 to the present. Here are the Scalia-Thomas agreement numbers through April for the past four Terms and October Term 2012:

Full Partial Judgment
Only
OT08 79% 85% 88%
OT09 83% 95% 95%
OT10 64% 81% 86%
OT11 78% 88% 94%
Avg. 76% 87% 91%
OT12 68% 84% 87%

Here are the graphs for each level of agreement:

agreement

So, I think the conclusion is that the Justices Scalia and Thomas are disagreeing at a higher rate than usual, but not by much.

In my last post, I provided a list of the top Supreme Court advocates of the twenty-first century who had never worked in the Office of the Solicitor General. As a comment on that post mentions, some who made my list had previous experience in state SG offices, such as Greg Coleman and Ted Cruz, who both served as the Solicitor General of Texas. The chart I provided is useful because it highlights the advocates who were able to get a toehold in Supreme Court litigation without being a former member of the Office of the Solicitor General, a remarkable occurrence. Many members of my list also developed a robust Supreme Court practice without a Supreme Court clerkship.

But as the comment points out, it would also be interesting to look at the top advocates who argued from private practice, regardless of whether they have previously held positions in the OSG. Without further ado, here are the top ten private-practice advocates of the twenty-first century:

Rank Name Position 21st Cent.
Private Args.
All-Time
Private Args.
All-Time Args
1 Carter Phillips Sidley Austin 45 67 76
2 Seth Waxman WilmerHale 29 30 61
3 David Frederick Kellogg Huber 26 26 37
4 Tom Goldstein Goldstein Russell 22 25 25
5 Theodore Olson Gibson Dunn 19 32 58
6 Jeffrey Fisher Stanford Clinic 17 17 17
7 Paul Clement Bancroft 13 13 62
8 Walter Dellinger O’Melveny 12 14 23
10 Donald Verrilli Jenner Block 10 12 21
Maureen Mahoney Latham 10 13 21
Andrew Pincus Mayer Brown 10 13 23

There is only one woman on the list, Maureen Mahoney. The next woman on the list would be Patricia Millett, with six appearances before the Court since 2000. There are also no minorities — as far as I can tell — but Sri Srinivasan has six appearances from private practice. John Roberts is also high on the list with eight arguments from private practice since 2000.

A few important caveats apply. First, Jeffrey Fisher is included here because, although he is not in private practice, he still has to perform the functions that define top litigators: selling his services, getting clients, and winning cases. I might be more hesitant to include someone who served in a state SG office during the relevant period, but no advocate in the top ten raised that problem. Second, this chart covers only October Terms 2000-2011. That means arguments from the last four months are not included, although nearly all have since added to their tallies: Garre (4), Fisher (3), Frederick (3), Goldstein (3), Waxman (2), Clement (1), Olson (1). If I included arguments during OT 12, Gregory Garre would slide onto the list with eleven private arguments in the last decade, eleven private arguments all-time, and thirty-nine all-time arguments overall.

I have a new Article out in the Journal of Legal Metrics entitled Top Supreme Court Advocates of the Twenty First Century. You can download the article here here.

Title-header

This Article identifies the Supreme Court litigators who have argued at least five times since October 2000, making them — by some measures — “expert Supreme Court litigators.” It identifies all members of this elite tier and then breaks them down by demographics such as gender, ethnicity, law school, past clerkships, and experience in the Office of the Solicitor General.

Identifying the members of today’s elite Supreme Court bar reveals several interesting trends. The members skew overwhelmingly white, although there are several young, minority members of the Supreme Court bar who have the potential to argue many cases in the near future. The elite bar also contains more men than women but, like with minorities, several women in recent years have taken positions that place them before the Supreme Court with increasing frequency. Predictably, top law schools are the best represented, although their presence may be smaller than some suspect. The best predictor of a law school’s presence in the elite Supreme Court bar is it’s Supreme Court clerkship potential, not it’s U.S. News & World Report ranking — although those two measures closely track one another.

For a quick glimpse at the list, here are the ten advocates who have argued most frequently since October 2000:

Rank Name Current Position 21st Cent. Args. All-Time Args.
1 Paul D. Clement Bancroft PLLC 62 62
2 Edwin S. Kneedler Deputy SG 47 116
3 Michael R. Dreeben Deputy SG 45 83
Theodore B. Olson Gibson Dunn 45 58
Carter G. Phillips Sidley Austin 45 76
6 Malcolm L. Stewart Deputy SG 39 54
7 Gregory G. Garre Latham & Watkins 35 35
8 Seth P. Waxman WilmerHale 34 61
9 David C. Frederick Kellogg Huber 29 37
10 Patrica M. Millet Akin Gump 24 31
Matthew D. Roberts Ass’t to the SG 24 30

Of those advocates, only Clement and Garre have argued all of their cases during the past twelve years. Kneedler is most prolific advocate currently practicing, although he trails Clement by fifteen arguments since the beginning of October Term 2000.

My Article breaks down the advocates by several demographic factors, including race, gender, law school, and Supreme Court clerkship. But I think one of the most interesting charts is the Table H, which features the top Supreme Court advocates who have never served in the Office of the Solicitor General (with fellowships and internships excepted):

Rank Overall Rank Name 21st Cent. Args. All-Time Args.
1 12 Thomas C. Goldstein 22 25
2 19 Jeffrey L. Fisher 17 17
3 41 G. Eric Brunstad, Jr. 9 10
R. Ted Cruz 9 9
5 47 Gregory S. Coleman 8 8
Paul M. Smith 8 14
Laurence H. Tribe 8 35
8 52 Jonathan S. Franklin 7 7
E. Joshua Rosenkranz 7 7
Kevin K. Russell 7 7
Eric D. Schnapper 7 16

Here are the top advocates from other categories:

  • Top Female Advocate: Patricia Millett (24 appearances since OT 2000) (31 cases appearances all-time)
  • Top Minority Advocate: Sri Srinivasan (20) (20)
  • Top Advocate from a non-top 10 law school: Gregory Garre (35) (35)

The Article is largely based on the Decade Advocate Scorecard that I have been developing and releasing for the last few years.

The big news in the world of the Supreme Court today is that Justice Thomas finally spoke at oral argument. It is not clear exactly what he said — the transcript provides very little guidance — but we will hopefully know more when the audio from oral argument is released on Friday.

How often has Justice Thomas spoken in the past? Not a lot. Prior to OT2004, Supreme Court transcripts read only “QUESTION:” when a Justice spoke, rather than identifying the Justice by name. Beginning in October 2004, the transcript began identifying Justices’ individually, allowing advocates to better analyze transcripts and allowing scholars to better study oral argument at the Supreme Court. It also let me measure how many times a particular judge got the courtroom to erupt in laughter.

Based on transcripts that identify Justices by name, Justice Thomas hasn’t been especially chatty on the bench.

Term Questions by
Justice Thomas
OT 2004 0
OT 2005 3
OT 2006 0
OT 2007 0
OT 2008 0
OT 2009 0
OT 2010 0
OT 2011 0
OT 2012 1

Justice Thomas’ participation before OT 2004 is harder to measure but several sources note that he spoke very sparingly. David Savage estimated in 2007 that Justice Thomas spoke “roughly once per Term”:

Only Justice Clarence Thomas is silent on the bench. Roughly once per term, he asks a question during oral arguments. Still, Thomas’ studied silence prompts lots of speculation. With his passive expression and long gazes at the ceiling, he looks out of place amid his engaged and animated colleagues.

In 2002, Dahlia Lithwick observed that Justice Thomas speaks only four or five times per Term:

Many of us in the courtroom were surprised simply at the sound of his voice; he speaks only four or five times a year, less often than most of his colleagues speak during an average morning.

So it seems clear that Justice Thomas speaks very sparingly. The more interesting question, however, is what his relative silence means for his objectives, the Court’s legitimacy, and the rule of law. I think it means relatively little for the latter two; legal and political circles often joke about his lengthy silence but I think it means little to the Court as an institution. As Justice Thomas remained silent, his colleagues continued to ask questions at a feverish pace.

But Justice Thomas’ silence might negatively impact his ability to persuade his colleagues to join his outside-of-the-mainstream views. David Karp wrote an interesting student Note in the Florida Law Review in 2009 where he argued that Justice Thomas would serve his own interests by engaging advocates — and by extension other members of the Court — during oral argument. But Karp also argues that Justice Thomas’s odd combination of silence during oral argument and comparatively bold writings weakens the Court as an institution:

This Note argues that Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process — and weakens the legitimacy of the far-reaching conclusions, like those in Morse, that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court. Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary on issues related to — but not directly raised in — a case. Justice Thomas’ silence on the bench is more than a peculiarity; it allows him to announce new theories of the Constitution without vetting those theories in open court.

I can’t say I completely subscribe to Karp’s argument, but his Note does make for an interesting read. To boot, the sources he chooses to support his argument are exquisite (especially the second source in footnote 17)!

There are a lot of numbers thrown out about the likelihood of a cert. petition being granted. The number I’ve always heard is 1%, but I sometimes hear numbers as high as 5%.

According to statistics from the Supreme Court, between June 30, 2011 and July 2, 2012, the Court disposed of 7,654 appeals and granted 63 for oral argument (.862%). That doesn’t count GVRs, but with those, it is safe to say the rate of grant is about 1% for all cert. petitions.

If you want to break up petitions into paid and IFP petitions — the most obvious division among all appeals filed at the Court — the following table provides a breakdown of the cases disposed of and granted during a twelve-month period between June 2011 and July 2012:

Paid IFP Total
Disposed 1564 6090 7654
Granted 59 7 66
Percentage 3.77% .114% .862%

Of course, last year was a slight aberration because the Court decided fewer cases after oral argument than it had in at least the past twenty years. But data from the previous year confirms that the past year was only a slight deviation from the norm. During the previous twelve-month period, the Court granted 76 of 1580 paid petitions (4.8%), 14 of 6245 IFP petitions (.224%), and 90 of 7825 all petitions filed (1.15%). Here are averages of the past 10 years:

Paid IFP Total
Disposed 1674.3 6384.6 8058.9
Granted 71.8 11 82.8
Percentage 4.29% .172% 1.03%

If you need to tell someone how likely it is that a petition will be granted, here is a cheat sheet:

  • Overall: 1%
  • Paid petition: 4%
  • IFP petition: .1%

With the Term quickly approaching it’s midway point, we can take a look at which advocates have made the biggest mark on the Term. Hearing Lists for the October to January sittings have been released, with only February, March, and April to go.

Perennial Term leaders Paul Clement and Carter Phillips haven’t appeared at the Court as much as they usually do. Clement will argue his first case of the Term tomorrow (Maracich v. Spears), and Phillips has yet to argue a case during October Term 2012. Last year, the two had fourteen combined arguments in twelve different case. Clement is likely to argue at least two more cases this Term, representing the respondents in both U.S. v. Windsor and Baby Girl v. Adoptive Parents. As far as I can tell, Phillips does not appear as the counsel of record on any parties’ briefs for cases that will be argued this Term, suggesting he may not make any appearances at all. Gregory Garre, who had a strong showing during October Term 2011, is repeating much of his success — his four arguments through January match his total from last year.

With three arguments this Term, Tom Goldstein overtakes both Patricia Millett and Matthew Roberts to become the tenth most frequently-appearing advocate of the twenty-first century. Tom has twenty-five arguments since October 2000 and twenty-eight arguments total. Ahead of him is David C. Fredrick, who has argued three cases this Term, thirty-two since October 2000, and forty all-time.

The following non-federal government attorneys have at least two arguments through January:

  • Gregory Garre: 4
  • Jeffrey Fisher: 3
  • David C. Frederick: 3
  • Tom Goldstein: 3
  • Neal Katyal: 2
  • Seth Waxman: 2

    A quick perusal of the cert.-stage briefs for the rest of the Term shows a familiar trend. Repeat players like Clement, Waxman, Blatt, Rosenkranz, and others show up on many briefs, and we are likely to see even more talent brought in at the merit stage as those briefs are filed and as the remaining cases are granted for the Term (for the record, I think there will be about five more petitions granted for OT12).

  • In today’s decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, a line at the end of the five-page opinion reads:

    Justice Alito concurs in the judgment.

    That line signals that Justice Alito agreed with the judgment of the Court (to reverse) but did not join the majority’s reasoning. In a break from the norm, however, Justice Alito did not write an opinion explaining his decision to concur in the judgment only.

    Concurrences and dissents without opinion used to be fairly common, but in recent years they have become increasingly rare. Here are a few of the more famous examples:

    • Justice Gabriel Duvall dissented without opinion in the landmark case Dartmouth College v. Woodward. As one commentator noted, “[d]issenting without opinion in one of the most important cases of his time somehow seems appropriate for Justice Duvall, who some have argued is the most insignificant Justice of all time.”
    • In Keyes v. School District No. 1 (1973), Chief Justice Burger concurred without opinion after some miscalculated maneuvering resulted in him losing a majority.
    • Justice Pierce Butler dissented without an opinion in the Court’s infamous 1927 decision, Buck v. Bell. In that case, the Supreme Court upheld a Virginia statute enforcing compulsory sterilization for the mentally retarded. Phillip Thompson discussed that dissent in excruciating detail a few years ago in a very interesting law review article.
    • From 1939 to 1973, Justice Douglas dissented without opinion in 25 tax cases, 20 of which were dissents in favor of the taxpayer. A fascinating book was written on the topic by Bernard Wolfman et al., Dissent Without Opinion
    • In McCain v. Lybrand (1984), Justices Blackmun, Powell, and Rehnquist concurred without dissent in a decision expanding the scope of Section 5 of the VRA. A year later, in NAACP v. Hampton County Election Commission (1985), Justices Powell and Rehnquist concurred again in the judgment without authoring an opinion. In these two Section 5 decisions, Justice Powell and Rehnquist could really see their view of the VRA slipping away, but the precedent just didn’t fall in their direction.
    • In the landmark First Amendment and gender discrimination case Roberts v. Jaycees (1984), Justice Rehnquist concurred without opinion. Justice Scalia did the same thing two years later in a related but less-known case, Rotary International v. Rotary Club of Duarte.

    As far as why concurrences and dissents without opinion matter, John Kelsh provides an interesting hypothesis about the relevance of this practice during the Taney Court:

    [T]he Taney period saw a dramatic increase in the use of dissents and concurrences without opinion. The Marshall Court had used these sparingly, registering a total of forty-one during its thirty-five year run. By contrast, the Taney Court, which ran for thirty-three years, registered 389. The dissent or concurrence without opinion is useful only as away of separating the individual Justice from the Court. It makes no effort to convince future courts to adopt a different course or to persuade the current majority to tighten its reasoning. It simply preserves for the public and for history that this Justice disagreed. The increased use of the dissent and concurrence without opinion demonstrates the Taney era’s increased emphasis on the role and opinions of the individual Justices.

    The practice is plainly in decline today: there is only one concurrence or dissent without an opinion every two or three Terms. However, it’s harder to say why Justices choose to concur or dissent without opinion.

    There are a series of video interviews with Justice Ginsburg that contain very interesting anecdotes about her life in the law and outside of it, including this one:

    The Dean [of Harvard] greeted the women in the first-year class with an invitation to dinner at his home. And we thought, “Oh, how thoughtful.” The Dean brought us in to his living-room and called on each of us to tell him, in turn, why we were at the Harvard Law School occupying a seat that could be held by a man.



     

    In this video she talks about preparing to litigate her first gender discrimination cases:



    You can find the other fascinating videos here. The embedded videos are a bit finicky, so you may have to watch the videos at the website itself.

    The Supreme Court and Test Cases

    Joan Biskupic has an incredibly interesting article for Reuters about the man behind Fisher v. University of Texas and Shelby County v. Holder. Apparently Edward Blum, a 60-year old former stockbroker, recruited both Fisher and Shelby County for their challenges and, along with a group of conservative financiers, is paying the legal bills for both. A very interesting look inside two of the biggest cases of the Term.

    Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s – a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores. Blum eventually got Shelby County to file suit after trolling government websites and cold-calling a county official.

    Blum introduced Fisher’s father and Shelby County officials to the same high-priced but politically sympathetic Washington lawyers, who agreed to work for a cut rate to be billed to Blum’s backers. Neither Fisher nor Shelby County is paying to fight the cases that bear their names.

    It makes me think about the biggest cases in recent years and how many of them were test cases and how many were real “controversies” that started out the organic way. The last major Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder, was a test case as well; former Solicitor General of Texas Gregory Coleman took the case from complaint to the Supreme Court. The healthcare cases were definitely test cases. As Tom Goldstein notes at SCOTUSblog, the pending DOMA and Same-Sex Marriage cases are test cases, although they don’t have the same coordinated flavor of some conservative test case. Hollingsworth v. Perry is a quintessential test case: David Boies and Ted Olson picked ideal plaintiffs to take their Prop 8 challenge through the federal courts. Office of Personnel Management v. Gil, a case out of the First Circuit, was backed by GLAD, the Gay & Lesbian Advocates & Defenders. Windsor v. United States was filed with assistance from the ACLU.

    It can be difficult to define a “test case.” Plaintiffs in all of these cases want the relief they seek—Shelby County would be very happy to be freed from the yolk of Section 5 and the Prop 8 plaintiffs would like to be married—and many start out with their cases looking to challenge major pieces of legislation. But the defining feature of a test case is that the plaintiffs are picked from among many and backed by larger organizations. Sometimes they are prodded into filing, and sometimes they are picked from among many willing candidates. But test cases come in many shapes and sizes.

    One way to figure out if a case is a test case is to look at the lawyers. In NWAMUDNO, for example, Coleman, a major player in the conservative legal movement, took a case from start to finish. In other big cases, minor litigants manage to get their cases to the Supreme Court and then switch to high-profile lawyers to argue their position (or even stick with their original lawyer).

    There have been a few news stories this week about the Supreme Court’s non-action on the DOMA and Same-Sex Marriage cases late last week and today. Gawker argues, surely as a joke, that the Court is being deliberately obtuse:

    Maybe they’ll make an announcement Monday, maybe they’ll wait until they meet again in January. Maybe they’ll put their fingers in their ears and chant “I can’t hear you, I can’t hear you” until the seas turn red and the sun wheezes itself into blackness. They had been “widely expected to decide whether to take up a case that could ultimately determine whether there is a fundamental right to same-sex marriage,” but you can’t pin these nine free spirits down.

    Ariane de Vogue at ABC News notes that “the justices surprised court watchers” by deferring to the next conference. At Above the Law, Elie Mystal quips: “SCOTUS is acting like an old college roommate who just came out is inviting them to a gay bar, and they’re trying to politely decline without looking like raging homophobes.”

    I think the real explanation for the delay is much less exciting than the commentators want to believe. More likely than not, the Court was just taking more time to properly decide which cases will make for the best vehicles. There are ten petitions raising similar, but not identical, issues and each one presents a slightly different vehicle for review. It is not at all unusual for the Court to wait one or more conferences before granting a petition, especially in a complicated situation where simultaneous petitions are raising the same issues.

    There is also a narrow likelihood that one or more members are preparing a dissent from denial if the Court intends to deny the Prop 8 petitions. The least likely scenario—and one that I think is fairly unlikely—is that members of the Court are preparing a summary reversal in one or more cases. Again though, I think the most likely reason for the delay is that the Court just wants more time to pick the right vehicle(s).



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