The U.S. Supreme Court on Monday granted certiorari in five cases on varied topics ranging from the death penalty to ERISA. But they all had one common thread: at least one veteran high court advocate represented a party in the case.
Three former U.S. solicitors general are involved in the granted cases, as well as some of the best-known advocates before the Supreme Court including Williams & Connolly partner Lisa Blatt, who has argued 37 cases before the court, more than any other woman.
The grants are a snapshot of the preeminence of veteran practitioners in shaping the Supreme Court’s docket. Yes, the court sometimes grants review in cases submitted by newcomers, but undeniably, it helps to have a familiar name on the brief if possible.
Here is the lawyer lineup in the five cases granted Monday:
>> Atlantic Richfield v. Christian, a dispute between Montana landowners and Atlantic Richfield Co. over environmental damages under the Comprehensive Environmental Response, Compensation and Liability Act. Lisa Blatt represents Atlantic Richfield, and Joseph Palmore, partner at Morrison & Foerster, represents the landowners. The court granted Blatt’s petition even though the solicitor general recommended against taking up the case.
>> Comcast v. National Association of African American-Owned Media, a claim that Comcast Corp. committed race discrimination in negotiations with Entertainment Studios Networks, an African-American-owned media company. Gibson, Dunn & Crutcher partner Miguel Estrada represents Comcast and Erwin Chemerinsky, dean of University of California, Berkeley School of Law represents the respondents. Latham & Watkins partner and former solicitor general Gregory Garre filed an amicus brief supporting Comcast.
>> McKinney v. Arizona, a test of how mitigating and aggravating evidence should be weighed in a criminal case. Hogan Lovells partner and former acting solicitor general Neal Katyal represents death row inmate James McKinney. Senior Arizona litigation counsel David Cole represents the state.
>> Monasky v. Taglieri, a dispute under the Hague Convention on the Civil Aspects of International Child Abduction. Gibson Dunn partner Amir Tayrani represents the mother in the case, Michelle Monasky, and Andrew Pincus of Mayer Brown represents the Italian father Domenico Taglieri.
>> Intel Investment Policy Committee v. Sulyma, a dispute over limitation periods in the Employee Retirement Income Security Act. Former Solicitor General Donald Verrilli Jr., now a partner at Munger, Tolles & Olson, represents Intel, and Matthew Wessler, a principal at Gupta Wessler, represents Christopher Sulyma, an employee of the company.
“Today’s order list is more, piling-on evidence, of the veteran SCOTUS bar’s increasing dominance of the court’s docket,” said Harvard Law School professor Richard Lazarus, who has written about the growth and influence of the Supreme Court bar. “On balance, their participation is most certainly a good thing because the court benefits greatly from the better advocacy they supply. But even something that on balance is good does not mean that there are not simultaneously some significant nagging concerns and downside costs.”
Justices have not been shy in acknowledging that they like to see familiar faces at oral argument. “We are so, so lucky,” Justice Elena Kagan said during a 2017 discussion at the University of Wisconsin Law School. “We have an extremely high caliber bar.” She went on to say that many arguments are made by “repeat players” who “really know the court, who know the process of arguing before the court, who know what it is we like, who know what they should be doing, what they shouldn’t be doing.”
And at a University Houston Law Center event last year, Justice Sonia Sotomayor was explicit in her frustration when novice criminal defense lawyers bungle arguments before the high court. She said, “I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it.’”