To celebrate Patricia Millett’s record-breaking thirty-first Supreme Court argument last week in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak—the most by any woman before the Court—I have compiled a list of the top 10 female advocates with the most appearances before the Supreme Court who are currently in practice. The following chart includes a link to each advocate’s firm profile (if one exists).

Advocate No. of Args Current Position
Patricia Millett 31 Akin Gump
Lisa Blatt 30 Arnold & Porter
Beth Brinkmann 24 DOJ
Maureen Mahoney 21 Latham & Watkins
Barbara Underwood 20 SG of NY
Nicole Saharsky 14 Assistant to the SG
Deanne Maynard 13 Morrison & Foerster
Leondra Kruger 12 Assistant to the SG
Nina Pillard 8 Georgetown Law Center
Pamela Karlan 7 Stanford Law School
Kathleen Sullivan 7 Quinn Emmanuel

Notably, Barbara McDowell, who passed away in 2009 as the director of appellate advocacy for the Legal Aid Society of the District of Columbia, argued 18 times before the Court and served as an Assistant to the Solicitor General. Beth Brinkmann currently serves as Deputy Assistant Attorney General, although that position that will not get her before the Supreme Court for oral arguments. Elena Kagan had 6 appearances before the Supreme Court before she became an Associate Justice.

Many of the advocates listed above argued the vast majority of their cases as members of the Office of the Solicitor General. That trend is generally true throughout the elite-tiers of the Supreme Court bar—Tom Goldstein is the only truly elite Supreme Court advocate without any experience in the OSG—and the trend appears to be just as strong among its female members. Among the advocates listed above, only Karlan and Sullivan have never argued on behalf of the federal government. Other advocates argued several cases while in the Office of the Solicitor General, but later argued again in other positions. For example, Millett’s five most recent arguments have occurred during her time in private practice and Underwood’s four most recent appearances have been in her position as Solicitor General of New York. Notably, Maureen Mahoney and Barbara Underwood have both served as Principal Deputy Solicitors General and Leondra Kruger temporarily served in that position just last year.

If I’ve made any mistakes with the above tally, please send me an email at

June 18: I’ve added Nina Pillard to the list, who argued several time as an Assistant to the Solicitor General in the mid-1990s and has argued a handful of times in the 2000s. Her most recent appearance was in Stolt-Nielsen v. AnimalFeeds Int’l. You can read more about her here.

If you want to download every oral argument recording from OT11 in one .zip file, you can find that file here. This file is especially useful if you want to download the arguments, throw them onto your iPod or iPhone, and then listen to them in your car or on the go. Be warned, however, the file is rather large (nearly 2gb).

If you want to download individual cases, I’ve compiled a link to the mp3s of every case. Click blow the fold to see more.

Continue reading ‘Every Oral Argument Recording from OT11 in One Place’

I’ve posted a new article on the Alien Tort Statute and Kiobel on SSRN. The article, Rethinking the Purely Jurisdictional View of the Alien Tort Statute, demonstrates that the Court should read the Alien Tort Statute as purely jurisdiction, rather than as a hybrid provision both granting jurisdiction to hear claims arising under the law of nations and defining the claims that fall under that jurisdiction.

Readers of this website might fight Part II, which begins on page 23, especially interesting. In that section, I demonstrate that the Alien Tort Statute is an atheoretical compromise between several conflicting strands of federal civil procedure. I discuss how the Court’s opinion in Sosa v. Alvarez-Machain (2004) did more to upset law in this area than to settle it because the opinion did not properly explain how the Alien Tort Statute fits into existing law surrounding Erie and the presumption against implied causes of action. Without clarity on those important issues, lower courts have struggled to build on the Supreme Court’s new framework.

The confusion regarding corporate liability and aiding and abetting liability are symptomatic of the Court’s atheoretical compromise. Litigation in Kiobel v. Royal Dutch Petroleum Co. has been a mess—the lower court decision was criticized for both its substantive outcome and its methodology—but litigation in Mohammed v. PLO demonstrates how easy it can be to litigate similar claims when Congress steps in to define those claims with a level of clarity that courts can never achieve.

The article won the W. Richard Smith Founder’s Award for Writing Excellence for the Best Comment, and it is forthcoming in the Emory International Law Review (2013). The abstract is copied below the fold. Continue reading ‘Forthcoming Article on Kiobel and the Alien Tort Statute’

ELSSCAP, the Emory Law School Supreme Court Advocacy Project, filed a cert. petition yesterday in Kasonso v. Holder. You can find the petition here.

Last month we filed a merits-stage amicus brief in Christopher v. SmithKline Beecham Corp., which you can find here. In December we filed a cert.-stage amicus brief in Standard Investment Chartered v. NASD, which you can find here.

I certainly am not posting these to distribute these briefs more widely, but instead I am posting these only to partially explain my relative absence from the internet. Oh, then there is the law review thing.

Today was another big day at the Supreme Court. Among the four merits opinions released, we got a very interesting summary reversal in Ryburn v. Huff and a landmark opinion in U.S. v. Jones, the GPS-tracking case. Unfortunately, I haven’t been able to plow through the latter yet, but I hope to get through it by the end of the day.

As you all have no doubt noticed, the Court has been releasing opinions at a blistering pace during the first half of October Term 2011. During the Roberts Court, the Court has not released more than 19 merits opinions by the end of the January sitting. This year, however, the Court released 21, including a blockbuster (U.S. v. Jones) and a mid-major (Perez v. Perry). The Court is likely to release another mid-major, Florence v. Board of Freeholders, during the February or March sittings.

With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. One Justice, however, has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising–the Court has disposed of nearly a quarter of the cases it will likely decide during OT11 and Justice Kennedy is nowhere to be seen. On the other hand, he tends to write most frequently in high-profile, divided cases and therefore it takes more time for the Court to produce his opinions. Ultimately, however, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice Total Opinions
Scalia 8
Ginsburg 7
Thomas 4
Sotomayor 4
Breyer 3
Alito 3
Kagan 3
Roberts 2
Kennedy 0

Despite his silence up to this point in the term, I have little doubt that Justice Kennedy will leave his mark on the term by the end of June. With so many landmark decisions pending, it seems likely that Justice Kennedy with write more than a few noteworthy majority, concurring, and dissenting opinions. He has also traditionally written a low number of total opinions–last year only Chief Justice Roberts and Justice Kagan authored fewer total opinions. I suspect that we will see a similar trend during the current term. But when Justice Kennedy writes an opinion, he certainly makes it count for something.

I run into the exact same debate every year around mid-January: which cases will be heard during the current term and which will be pushed over to the next? For example, the Court granted three cases on Friday but should I categorize them as OT11 cases or OT12 cases?

Predicting which cases the Court will hear during the April sitting is more of an art than a science. This year we are aided by the early release of the March calendar, which occasionally comes out as late as the end of the January sitting (OT07, OT08). Recently, however, the Court has published the February and March calendars sometime in December (OT10, OT11).

We can also look at recent trends in the number of cases heard during the April sitting. The Court has heard fewer cases in the last few years than it had during years before. You can see the tally’s going back to OT03 below:

Term April Args.
OT03 11
OT04 11
OT05 13
OT06 16
OT07 12
OT08 10
OT09 8
OT10 8

You can see the trend as a bar chart as well:

The recent trend suggests that the Court will once again aim to hear 8-10 cases in April. An April sitting with 8 cases would also leave the Court with 75 cases set for oral argument (counting the healthcare cases as one case). In recent years, the Court has heard around the same number of merits cases.

Term Argued Cases
OT03 76
OT04 76
OT05 71
OT06 71
OT07 69
OT08 75
OT09 77
OT10 77

Another common signal used to predict the April cases is the presence of an expedited briefing schedule. Occasionally, the Court will order a case placed on an expedited schedule in order to accommodate arguments earlier than the normal schedule would allow. That happens both in extraordinary cases that need to be rush – like Perry v. Perez this year – and in cases that need to be squeezed into the term. January grants are often the subject of such expedited schedules, but none of the grants from the past two weeks have received such treatment.

One way for the Supreme Court to move cases along without upsetting the formal briefing schedule is to announce granted cases immediately following a conference and announce denied cases in the traditional Monday order list (OT09, OT10, OT11). The Court has used this procedure for each of the cases granted in January, a signal that it is at least considering whether or not to hear those cases in April. The Court did not follow the same procedure during OT10; it announced grants and denials in its normal order list and still managed to hear some of those cases during the April sitting.

The Cour may also consider its general workload for the term when scheduling cases for April. It has a number of important cases to decide before the end of June and many of those will require more judicial resources than the average case. If the Court were concerned about the length and difficulty of those cases, it may opt to hear fewer cases in the April sitting in order to devote more time to the difficult cases.

To date, the Court has ten cases that have been granted but not scheduled for oral arguments. Five of those were granted in December and will almost certainly make it onto the April argument calendar(Christopher v. SmithKline Beecham, Dorsey v. U.S., RadLAX v. Amalgamated, Arizona v. U.S., and Match-E-Be-Nash-She-Wish Band v. Patchak). Of the remaining five, the ones that were granted in the past two weeks, two were granted at the first January conference (Salazar v. Ramah Navajo Chapter and Florida v. Jardines) and three were granted last week (Kloeckner v. Solis, U.S. v. Bornes, and Cavazos v. Williams). The Court generally schedules cases for oral arguments in the order in which they were granted, but it does not follow the order of grants strictly.

In the past, the April calendar has been released in late-January or early-Februry. Here are the dates over the past few years:

Term April Calendar Release
OT04 Feb. 24
OT05 Mar. 6
OT06 Feb. 5
OT07 Jan. 30
OT08 [uncertain]
OT09 Feb. 16
OT10 Feb. 7

Ultimately then, its hard to predict exactly which cases will be heard in April and when we’ll know, but I predict that we’ll find out mid-way through the February sitting that the Court will hear eight cases: all five that were granted in December, both of the January 6 grants, and one (possibly two) of January 13 grants.

Of course, the standard prediction disclaimers apply. I’m just as likely to be wrong as I am to be right, so plan accordingly.

The Supreme Court released four opinions today, and each was 8-1. You can find all of the opinions here.

CompuCredit v. Greenwood, a case centering around arbitration clauses, is especially interested. In an opinion written by Justice Scalia, the Supreme Court somewhat predictably upheld an arbitration agreement and read the Credit Repair Organizations Act’s nonwavier provision narrowly enough to allow the Federal Arbitration Act’s presumption of enforceability to prevail. At this point, Supreme Court opinions upholding arbitration clauses almost feel pro forma. Justice Ginsburg dissented.

Justice Ginsburg also provided the lone dissenting vote in Minneci v. Pollard. Over the past ten years, Justice Ginsburg has only provided the lone dissenting vote about once every other term (.5 times per year), so it was especially surprising to see her do it twice in one day. During the Roberts Court, there have been an average of 7.4 8-1 decisions per year, making today’s barrage of 8-1 opinions even more surprising.

January Hearing List Released

The Supreme Court has released the Hearing List for the January sitting and you can find it here.

Several high-profile advocates are back in action during the January sitting. Gregory Garre leads all attorneys in private practice with his fourth argument of the term in United States v. Home Concrete & Supply and Solicitor General Donald Verrilli matches him with his fourth argument of the term in FCC v. Fox.

Paul Clement argues his third case of the term in Perry v. Perez this afternoon. Carter Philips and Assistant to the Solicitor General Nicole Saharsky also argue their third cases of the term in FCC v. Fox and Filarsky v. Delia, respectively.

Deputy Solicitor General Malcolm Stewart, who was notably absent from the podium during the first three months of the term, will argue in two cases during the January sitting: Sackett v. EPA and United States v. Home Concrete & Supply.

I’ve always thought it was funny that WestLaw handed out yellow flags like they were candy. I’m referring, of course, to “KeyCite Status Flags,” the shorthand notation given to each case to signal whether it has some negative history, is bad law, or has direct history.

  • Red Flag: “In cases and administrative decisions, a red flag warns that the case or administrative decision is no longer good law for at least one of the points of law it contains.”
  • Yellow Flag: “In cases and administrative decisions, a yellow flag warns that the case or administrative decision has some negative history but hasn’t been reversed or overruled.”
  • Blue H: “In cases and administrative decisions, a blue H indicates that the case or administrative decision has some history.”
  • Green H: “In cases and administrative decisions, a green C indicates that the case or administrative decision has citing references but no direct history or negative citing references.”

The common perception is that, for whatever reason, WestLaw gives yellow flags to a disproportionate number of cases. I thought I’d look at cases from OT10, most of which were decided in the last twelve months.

October Term 2010 Merits Cases

Yellow 56 70%
Blue H 24 30%

As it turns out, WestLaw actually does give out yellow flags to a large percentage of cases. Considering that these cases were decided by the highest court in the land within the last twelve months, it is pretty remarkable that so many of them already have “some negative history.” Go figure.

My next step is to look at cases from OT08 and OT09 to see how the trend shifts over time. I’d also like to look at the cases that cast doubt upon Supreme Court cases to see where they arise and to find the average length of time between a Supreme Court opinion and its first diminishing case.

Much has been made of the memo that William Rehnquist wrote as a clerk to Justice Robert Jackson advising him to uphold Plessy v. Ferguson in Brown v. Board of Education. Rehnquist always maintained that he was only writing what his boss wanted to read, but Rehnquist’s detractors saw that as a flimsy excuse.

I don’t have a strong view on that matter, but I thought it would be helpful to read the memo itself to divine an answer. If you want to read it yourself, you can find it here.

Rehnquist opens the most substantive portion of the memo with an argument that looks familiar to constitutional scholars today:

In these cases now before the Court, the Court is, as [John] Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction.

It ends on an interesting note that also displays his matter-of-fact style mixed with a hint of flair that would become a hallmark of his thirty-three year tenure on the Court:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagyes, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios, it just as surely did not enact Myrddahl’s American Dilemna.

After reading the memo, I get the impression that it truly reflected his views. The style is clearly personal and the informal tone makes it seem more likely that Rehnquist was free to write what he truly felt. That said, its hard to glean anything from a two-page memo. Consider this mystery unsolved.

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