Sonia Sotomayor testifies in 2009 at her confirmation hearing. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL

Last fall, Justice Elena Kagan touted the advantages of an experienced U.S. Supreme Court Bar—the “repeat players” who know what the court likes. Justice Sonia Sotomayor seems to think criminal defense lawyers still aren’t getting the message.

During a visit at the University of Houston Law Center, Sotomayor voiced her frustration with criminal defense lawyers who don’t have the skills of a practiced Supreme Court advocate.

When those advocates miss an important line of argument or are drawn by the justices’ questions into taking an unhelpful position, Sotomayor said she may pass a note to a colleague, saying, “I want to kill them.”

Sotomayor’s remarks reflect her long-standing concern about criminal defense lawyers who are first-timers in high court arguments. In a 2014 Reuters article, she was asked why so few Supreme Court advocates argue on behalf of criminal defendants. The justice said many criminal defense lawyers are reluctant to give up their moment in the spotlight of a high court argument.

“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,’” she said then.

During a U.S. Justice Department event that same year on the legacy of Gideon v. Wainwright, Kagan shared similar sentiments, saying, “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.”

Sotomayor’s frustrations reflect her own experiences with criminal trials. She is the high court’s only former trial judge. She brings to the bench an eagle eye on how criminal trials play out in the real world and what is expected of both the defense and the prosecution. Even if an experienced appellate advocate is before her, she does not hesitate to call out the lawyer if he or she is playing fast and loose with how a trial or sentencing proceeding should operate.

Lamenting the lack of diversity on the high court itself, Sotomayor said in 2013 she was bothered by the fact judges rarely come to the bench from the defense bar or with civil rights experiences. “We’re missing a huge amount of diversity on the bench,” she said.

2016 study by Harvard Law School’s Andrew Crespo analyzed what he called the high court’s institutional shift over the last four decades toward the prosecution. One part of that shift, Crespo found, was the “rise of a sharp advocacy gap between criminal defendants and the rest of the increasingly expert Supreme Court bar, including expert advocates for the prosecution.”

Two veteran high court advocates who occasionally step into that gap on behalf of criminal defendants are former Clinton administration U.S. Solicitor General Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, who often handles death row appeals, and Stanford Law School’s Jeffrey Fisher.

And there have been efforts to prepare the criminal defense attorney making a first appearance before the high court. Some law schools with Supreme Court clinics offer moot court and other preparation help. The law firm Sidley Austin has for years conducted a pro bono program to assist federal public defenders with Supreme Court cases.

That an experienced Supreme Court advocate is an invaluable asset in a case before the high court was evident in Kagan’s comments last fall at the University of Wisconsin School of Law.

Kagan said many high court arguments are made by “repeat players,” members of an “extremely high caliber bar,” 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.”

 

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