In a remarkable feat, by the end of April arguments in the 2008-09 term, two veteran U.S. Supreme Court advocates each had argued six cases, and attorneys from just three firms and one law school clinic stood at the podium in nearly 35 percent of the term's 78 argued cases.
The term was a testament to the growing size and influence of the private Supreme Court bar. By rough count, experienced high court practitioners argued in at least half of the 78 cases, and they broke into an area long represented by legal specialists -- environmental law.
The two titans of the term were Carter Phillips, managing partner of the Washington office of Sidley Austin, and Theodore Olson, co-chairman of the appellate and constitutional law group in the Washington office of Gibson, Dunn & Crutcher. And Olson is not done yet.
Olson, who won three and lost two so far, will add a seventh appearance to his total when he reargues the as-yet-to-be-decided Citizens United v. FEC on Sept. 9. Although Olson's seven arguments may have been matched in the past by private practitioners when the justices were hearing 150 or more cases a term, it may be a record for the past two decades.
"I found extraordinary and breathtaking that two Supreme Court private practitioners had six arguments," said another Supreme Court advocate, Thomas Goldstein, co-head of the litigation and Supreme Court practices at Akin Gump Strauss Hauer & Feld, who argued three cases, winning two and losing one.
The three firms and law school clinic with appearances in 27 of the arguments were: Sidley Austin with eight (six by Phillips and one each by partners Robert Hochman and Gary Feinerman); Stanford Law School Supreme Court Litigation Clinic with seven (two apiece by Goldstein, professor Jeffrey Fisher and lecturer Kevin Russell and one by professor Pamela Karlan); Gibson Dunn's Olson with six; and Mayer Brown with six (two each by partner Andrew Pincus and special counsel Charles Rothfeld and one each by partners Andrew Frey and Stephen Shapiro).
Besides Akin Gump's Goldstein, also in the three-argument category this term was David Frederick, partner in Washington-based Kellogg, Huber, Hansen, Todd, Evans & Figel. Frederick won two of his three cases, prevailing against Olson and Seth Waxman of Wilmer Cutler Pickering Hale and Dorr in the term's two major federal pre-emption cases. Frederick's partner, Aaron Panner, also argued and won his high court first case.
Despite the economic downturn and a smaller argument docket, "We've held our own pretty much against both of those trends," said Sidley's Phillips, noting that, in addition to eight arguments this term, the firm was on the brief for parties in four cases in which someone else argued and was counsel of record for amici in five other cases -- a total of 17 decided cases. Phillips, who went 2-4 this term, also marked his 65th high court argument. The cases handled by Phillips and Olson also reflected the wide legal expertise the members of this bar bring to the Court. The two lawyers fielded such issues as judicial ethics, campaign finance, pre-emption, arbitration, age discrimination, Native American affairs and sovereign immunity.
Phillips, Goldstein and others noted that Supreme Court practitioners broke into representation of business interests in environmental cases this term. Making those arguments -- all successful -- were Olson; Maureen Mahoney, head of Latham & Watkins' appellate and constitutional practice; and Kathleen Sullivan, chair of the national appellate practice at Quinn Emanuel Urquhart Oliver & Hedges.
"I can't imagine there having been before such a high proportion of arguments by lawyers with Supreme Court experience in the modern era," said Goldstein, "and I doubt it will happen again for long, long time, even though that is the trajectory."