Are The Elite Supreme Court Advocates Better — Or Just Better Known?
Does the demand for their services reflect better advocacy?
Ed note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.”
Of 17,000 lawyers who sought certiorari over nearly a decade, Reuters found that just 66 accounted for almost half the petitions granted. Put another way, for every 200 lawyers who ask the Supreme Court to hear their cases, one of those lawyers is almost as likely to land a case on the docket as the other 199 lawyers combined.
Chief Justice John Roberts is only the most decorated member of this rarified crew. Others include former Solicitors General and appellate stars with resumes shimmering with elite schools, prestigious clerkships, and marquee law firms.
Clients clamor to have these wunderkinds represent them at the Supreme Court. But does the demand for their services reflect better advocacy? Or do their glittering reputations and easy banter with the Justices simply allow them to pick stronger cases and to mold arguments to the tastes of an equally elitist Court?
Just as important, even if these star advocates shine, aren’t others just as good?
To help answer these questions, I reviewed 1,122 merits-stage briefs from the 2019 Term. To reduce the effects of selection bias and the limitations of win-loss records, I obtained BriefCatch scores on each brief. The algorithms draw from an Artificial Intelligence analysis of thousands of first-rate legal documents and judicial opinions, all published well before the 2019 Term.
I divided the 1,122 briefs into three groups based on the counsel of record:
- Elite (Ranked in Chambers & Partners, Law360, and so forth)
- Office of the Solicitor General
- Everyone Else
I then ranked each group by Reader Engagement Score, a weighted composite BriefCatch score developed through factor analysis:
As the results show, although both “Elite” and “Other” briefs obtained a broad range of scores, the “Elite” scores skew higher. On the one hand, only 20 percent of “Elite” briefs scored below the average for “Other.” But on the other hand, 25 percent of “Other” briefs scored above the average for “Elite” briefs, and 5 percent scored more than an entire standard deviation above that average.
Here are the “Not Elites But Just As Good or Better Than Elites?”
Briefs for the prevailing party:
| Author | Case | Brief | Short Brief (under 3500 words)? |
| Cendali, Dale M. | Lucky Brand Dungarees Inc. v. Marcel Fashions Group Inc. | https://perma.cc/DH63-KQ23 | No |
| Citron, Eric F. | Georgia v. Public.Resource.Org Inc. | https://perma.cc/3CAJ-CFXG | No |
| Cohen, G. Ben | Ramos v. Louisiana | https://perma.cc/5GSC-UBYU | No |
| Crouse, Toby | Kansas v. Glover | https://perma.cc/2LMW-Q6RG | No |
| Knight, John A. | R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission | https://perma.cc/46TT-8ERX | No |
| Komer, Richard D. | Espinoza v. Montana Department of Revenue | https://perma.cc/DSQ8-NB5Y | No |
| Levy, Michael A. | Kelly v. United States | https://perma.cc/C8DA-5BLZ | No |
| Lin, Elbert | County of Maui, Hawaii v. Hawaii Wildlife Fund | https://perma.cc/ZFR5-MV4L | No |
| Martinez, Roman | Barr v. American Association of Political Consultants Inc. | https://perma.cc/C84F-XJD3 | No |
| Rassbach, Eric C. | Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Biel | https://perma.cc/8JNC-SZND | No |
| Roth, Yaakov M. | Kelly v. United States | https://perma.cc/ED2B-9FMQ | No |
| Roth, Yaakov M. | Kelly v. United States | https://perma.cc/3W54-TEDV | No |
| Tu, Travis J. | June Medical Services LLC v. Russo; Russo v. June Medical Services LLC | https://perma.cc/3RW4-WABQ | No |
| Zabell, Saul D. | Altitude Express Inc. v. Zarda | https://perma.cc/K6PQ-WRWH | No |
Briefs for the non-prevailing party:
| Author | Case | Brief | Short Brief (under 3500 words)? |
| Bursch, John J. | R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission | https://perma.cc/GB4T-AV73 | No |
| Lessig, L. Lawrence | Chiafalo v. Washington | https://perma.cc/86KP-EPFD | No |
| Schrup, Sarah O’Rourke | Kahler v. Kansas | https://perma.cc/Z976-9CPY | No |
| Sekulow, Jay Alan | Trump v. Vance | https://perma.cc/YB54-DW2Q | No |
| Summa, Richard M. | Shular v. United States | https://perma.cc/9AQF-EGQJ | No |
| Vladeck, Stephen I. | Hernandez v. Mesa | https://perma.cc/B9W7-FQMQ | No |
Amicus briefs:
| Author | Case | Brief | Short Brief (under 3500 words)? |
| Barthold, Corbin K. | Atlantic Richfield Co. v. Christian, et al. | https://perma.cc/Amicus8X-KMTQ | No |
| Bolinder, Eric R. | Maine Community Health Options v. United States; Moda Health Plan, Inc. v. United States; Land of Lincoln Mutual Health Insurance Co. v. United States | https://perma.cc/ECZ9-R6W6 | Yes |
| Crespo, Andrew Manuel | Kansas v. Glover | https://perma.cc/W82Z-BRAY | No |
| Dubinsky, Gregory. | Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, et al. | https://perma.cc/Y8C7-L5CT | Yes |
| Duncan, Dwight G. | Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvania | https://perma.cc/2FBS-QBBH | Yes |
| Goodrich, Luke W. | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/8Q8A-E6R3 | Yes |
| Green, Tyler R. | Kahler v. Kansas | https://perma.cc/3VGG-NECV | No |
| Green, Tyler R. | McKinney v. Arizona | https://perma.cc/MG2W-JLC7 | No |
| Gura, Alan | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/5225-3Q6C | No |
| Gutman, Benjamin | Ramos v. Louisiana | https://perma.cc/HB22-62AF | No |
| Harris, Sarah M. | Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Biel | https://perma.cc/D6RV-SBNV | No |
| Hawley, Josh | June Medical Services LLC v. Russo; Russo v. June Medical Services LLC | https://perma.cc/6VZ5-FNTK | Yes |
| Klukowski, Kenneth A. | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/R453-PVB6 | No |
| Letter, Douglas N. | Seila Law LLC v. Consumer Financial Protection Bureau | https://perma.cc/L8GE-6QLG | No |
| LiMandri, Charles S. | Bostock v. Clayton County; Altitude Express Inc. v. Zarda | https://perma.cc/5ZXE-PMAQ | No |
| Loss-Eaton, Tobias S. | Chiafalo v. Washington; Colorado Department of State v. Baca | https://perma.cc/MN4X-N3BH | No |
| Martinez, Judy Perry | Romag Fasteners, Inc. v. Fossil, Inc. | https://perma.cc/ED3L-MH35 | Yes |
| Masri, Lena F. | Hernandez v. Mesa | https://perma.cc/D56R-L5DT | Yes |
| Matz, Joshua | Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvania | https://perma.cc/ND2S-F3U7 | No |
| Michel, C.D. | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/AUH5-EQHY | No |
| Mizer, Benjamin C. | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/Z8L6-MRNU | No |
| Ramey, E. Travis | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/ZKC5-5BNC | Yes |
| Robinson, David A. | Bostock v. Clayton County; Altitude Express Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission | https://perma.cc/8MW5-H62M | No |
| Roth, Michael D. | Barr v. American Association of Political Consultants Inc. | https://perma.cc/C266-APTB | No |
| Schauf, Zachary C. | Barr v. American Association of Political Consultants Inc. | https://perma.cc/DT8P-D6BA | No |
| Sekulow, Jay Alan | United States Agency for International Development v. Alliance for Open Society International, Inc. | https://perma.cc/CN9D-8SCC | No |
| Shapiro, Ilya | Department of Homeland Security v. Regents of the University of California; Trump v. NAACP; McAleenan v. Vidal | https://perma.cc/B2BS-RXLF | No |
| Sherman, Paul M. | Barr v. American Association of Political Consultants Inc. | https://perma.cc/92MW-H6K9 | Yes |
| Thompson, David H. | New York State Rifle & Pistol Association Inc. v. City of New York | https://perma.cc/67KF-HRLY | No |
| Tseytlin, Misha | Barr v. American Association of Political Consultants Inc. | https://perma.cc/47AG-K6RD | No |
| Volokh, Eugene | United States v. Sineneng-Smith | https://perma.cc/9RXB-BABG | Yes |
| Wessler, Matthew W.H. | Retirement Plans Committee of IBM v. Jander | https://perma.cc/8D5E-4ZSS | Yes |
BriefCatch scores are objective and rigorous, but they are still imperfect measures of writing prowess. Not to mention that clients ultimately care about results, not advocacy skill itself. That said, this long list of names suggests that expanding the official Supreme Court Bar could not only diversify representation but encourage some of the laggards in the reigning elite to up their brief-writing game.
