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More and more of the U.S. Supreme Court’s cases are brought and argued by the seasoned veterans who have honed high court practice into a fine, and exclusive, art form. That’s the finding of Professor Richard Lazarus of Georgetown University Law Center. According to his study, set to be published soon in the Georgetown University Law Journal, 44% of the nongovernment petitions that were granted review by the court were filed by such veteran advocates. In 1980, that number was less than 6%. Clearly, the justices and their law clerks pay special attention to the briefs and arguments of these virtuosos of the bar. Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88% of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the “inner circle” of the Supreme Court bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000. According to Lazarus, the increasing dominance of the veteran Supreme Court bar is having an impact on the court’s doctrine. His study draws a direct and controversial connection between the growth of the Supreme Court bar and the court’s widely noted new pro-business tilt. Clients willing to pay $100,000 or more for a veteran advocate to petition the court are elbowing aside the civil rights, civil liberties and labor groups that once helped set the court’s agenda. Recent breakthrough victories for business in tort, antitrust and other areas of the law can’t be explained totally by the court’s overall conservative majority, Lazarus says. Increasingly, the modern-day court is ruling in favor of “monied interests more able to pay for such expertise.” However, veteran attorneys dispute the notion that the bar is steering the court in any direction, pro-business or otherwise. “Effective advocacy can impact the court, but the heightened success of business has been in the works for 25 years,” said Latham & Watkins’ Maureen Mahoney, who argued four cases last term. “And you’ve got seven Republican appointees on this court who have a high interest in these cases.” Akin Gump Strauss Hauer & Feld’s Thomas Goldstein agrees. All the highly polished pro-business petitions in the world, he said, “wouldn’t get anywhere on a court with nine Bill Brennans,” a reference to the late Justice William Brennan Jr. Lazarus charted the history of the business community’s efforts to convince the Supreme Court that there is a constitutional limit to punitive damages in tort cases. By placing seven of the eight cases in the hands of veterans such as Mayer Brown’s Andrew Frey, Gibson, Dunn & Crutcher’s Theodore Olson and Sidley Austin’s Carter Phillips, business groups were able to make slow but steady progress � culminating in last term’s Philip Morris v. Williams, 127 S. Ct. 1057. The dominance of the Supreme Court bar begins at the petition stage. The court accepts fewer than 100 of the nearly 10,000 petitions it receives yearly. Yet the veterans, who know how to make a petition attractive to the justices and their clerks, sometimes achieve a 20% success rate or higher, Lazarus says. The dominance of the specialists is especially visible at oral argument, Lazarus’ study indicates. Last term, 26% of the advocates who argued before the court were veterans � defined as having argued five cases themselves or coming from an organization that has argued 10 cases. It is oral argument that secures the veterans their fees. The intense barrage of high-level questions from justices is not for the faint of heart, said Walter Dellinger of O’Melveny & Myers. “You can’t evade answering their questions,” he said. “If you do, they will hunt you down. They take no prisoners.” David Frederick of Washington’s Kellogg, Huber, Hansen, Todd, Evans & Figel said, “The specialization has arisen at least in part in response to the court’s uniquely vigorous questioning style, which makes a Supreme Court argument quite unlike an argument in any other court.”

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