A small group of lawyers and its outsized influence at the U.S. Supreme Court

TOP TIER: In handling appeals heard by the U.S. Supreme Court, 75 lawyers have stood out – most for their success at getting cases before the high court, others for how often they argue those cases, and some for both reasons. Most of the 75 work at law firms that primarily represent businesses.

At America’s court of last resort, a handful of lawyers now dominates the docket

PILLARS OF JUSTICE: Although the U.S. Supreme Court is the most diverse it has ever been – three of the nine justices are women and two are minorities – the elite bar that comes before it is strikingly homogeneous: Of the 66 top lawyers, 63 are white. Only eight are women. REUTERS/Molly Riley

Part 1: A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise

WASHINGTON – The marble façade of the U.S. Supreme Court building proclaims a high ideal: “Equal Justice Under Law.”

But inside, an elite cadre of lawyers has emerged as first among equals, giving their clients a disproportionate chance to influence the law of the land.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

The lawyers are the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court. None of these lawyers is a household name. But many are familiar to the nine justices. That’s because about half worked for justices past or present, and some socialize with them.

They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012.

The Reuters examination of the Supreme Court’s docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.


“Working for corporate clients is the bread and butter of our practice,” said Ashley Parrish, a partner at King & Spalding whose success rate in getting cases before the court ranks him among the top handful of lawyers in America. “As a large national firm, we are generally conflicted from representing individuals and advocacy groups in litigation against corporations,” he said. “They are typically suing our clients or prospective clients.”

The firm takes some criminal defense and First Amendment cases pro bono. But like other firms with Supreme Court practices, such cases are the exception.

“It’s the nature of the business,” Parrish said.

As a consequence, individuals seeking to challenge large companies are left to seek counsel from a pool of attorneys that’s smaller and, collectively, less successful.

The court generally has a conservative, pro-business majority, but even one of its most liberal justices, Ruth Bader Ginsburg, accepts the corporate tilt of the specialist bar that dominates the docket.  

“Business can pay for the best counsel money can buy. The average citizen cannot,” Ginsburg said. “That’s just a reality.”

Chief Justice John Roberts declined to comment on the Reuters analysis. But exclusive interviews with eight of the nine sitting justices indicate that most embrace the specialty Supreme Court bar. To them, having experienced lawyers handling cases helps the court and comes without any significant cost. Effective representation, not broad diversity among counsel, best serves the interests of justice, they say.

IN STONE: Etched on the facade of the U.S. Supreme Court building in Washington, D.C., are these four words: EQUAL JUSTICE UNDER LAW. REUTERS/Larry Downing

The growing power of the specialist bar worries some leading lawyers, however. Michael Luttig, general counsel for aerospace giant Boeing Co., understands the advantages of hiring from that group; he has done so when the company has had a case before the justices. But as a former U.S. appeals court judge who earlier served as a Supreme Court clerk, he says he also sees a downside.

“It has become a guild, a narrow group of elite justices and elite counsel talking to each other,” Luttig said. The court and its bar have grown “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”


Although the Supreme Court is the most diverse it has ever been – three of the nine justices are women and two are minorities – the elite bar is strikingly homogeneous: Of the 66 top lawyers, 63 are white. Only eight are women.

It’s also a self-replicating group of insiders, many of whom previously held positions that offer them deep insight into how the court operates. Among the 66 leading lawyers, 31 worked as a clerk for a Supreme Court justice; in that role, they wrote memos for the justices that summarized petitions and highlighted cases that might be worth hearing. Twenty-five worked in top posts in the U.S. Office of the Solicitor General, whose lawyers represent the federal government before the court.

Like 14 others, lawyer Neal Katyal held both jobs.  

At age 44, Katyal is a relative newcomer to this upper echelon of attorneys. But last term, Katyal argued four cases before the high court, second most among the bar’s top advocates. This term, he expects to argue at least three.

In his rise to the top, Katyal has patterned himself after a man who was once one of the most successful members of the court’s elite bar: John G. Roberts.

Before becoming chief justice in 2005, Roberts served in the solicitor general’s office and then built a thriving Supreme Court practice at the law firm where Katyal now works. From 1989 through 2003, Roberts appeared 39 times before the court.

FAST RISER: Attorney Neal Katyal now runs the Supreme Court practice at the firm where Chief Justice John Roberts once worked. He considers Roberts a mentor. “We’re not where the chief was when he was here,” Katyal said. “But that’s where we want to go.” REUTERS/Gary Cameron

“Business can pay for the best counsel money can buy. The average citizen cannot. That’s just a reality.”

Justice Ruth Bader Ginsburg

During interviews, Katyal often cites his admiration for the chief justice, recounting the words of another attorney who encouraged Katyal to take a summer associate position working for Roberts in private practice. As Katyal recalled, the conversation went like this: You know that G in John G. Roberts? the lawyer asked him. The G is for God. (It actually stands for Glover.)

Today, Katyal oversees the practice the chief justice shaped, and he continues to follow the Roberts model. “Every day I’m conscious of the chief’s legacy at the firm and in the Supreme Court bar,” he said.


The rise of that specialty bar can be traced to the mid-1980s, when President Reagan’s first solicitor general, Rex Lee, joined the Washington office of Sidley Austin.

Demand had grown for lawyers who could help corporations roll back workplace, environmental and consumer regulations that had roots in the late 1960s and early 1970s.  At Sidley Austin, Lee launched a high court practice focused on business clients. In the next two years, he argued a remarkable eight cases before the Supreme Court.

By the time Lee died in 1996, other large firms were creating their own Supreme Court practices, largely on behalf of business interests.

The star appellate lawyers, by virtue of the appeals they write and sign, help the justices winnow the pool of cases the court considers. Typically, the Supreme Court agrees to hear just 5 percent of the petitions filed by private attorneys. It accepts 21 percent of the cases bearing the name of a leading advocate.

“They basically are just a step ahead of us in identifying the cases that we’ll take a look at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same standards” as the justices do.

Some scholars say reliance on the expert bar has made for a far more insular court. “We don’t want the justices to filter cases through advocates,” said Jenny Roberts, associate dean at American University’s law school. “If this is happening, delegating the discretion of cases to a sort of sub-Supreme Court when so much is at stake is troublesome. It’s fine if you trust and agree with those in control, but what happens when you don’t?”

To identify lawyers who enjoyed the most success before the high court, Reuters examined about 10,300 petitions for writ of certiorari, the documents that launch an appeal, filed by private attorneys during a nine-year period. Reuters excluded the large volume of appeals filed by convicts and others without a lawyer; rarely are those cases accepted by the court. The analysis also excluded petitions filed by government lawyers.

At this critical first stage of the process, justices have wide discretion to decide whether to hear a case. For a petition to be accepted – known in Supreme Court parlance as “granting cert” – four of the nine justices must vote to take the case and hear oral arguments.

Each of the 66 lawyers Reuters identified filed an average of at least one petition a year from 2004 to 2012. And each had at least three petitions that were granted in that period. Both criteria put these lawyers far above the norm.

Reuters identified about 1,500 petitions filed during those nine years in which the interests of companies were arrayed against those of customers, employees or other individuals. These appeals included employment discrimination cases, benefits disputes and antitrust cases.

In these cases, the elite lawyers were three times more likely to petition the court on behalf of businesses. And the appeals brought by a leading attorney were six times more likely to be heard than those that were not.

The pro-business predilections of the Roberts court come as no surprise to those who follow its rulings. During the first nine years under Roberts, Reuters found, the court ruled for business parties 60 percent of the time, compared with 48 percent during the court’s last nine years under Chief Justice William Rehnquist.

That divergence extends to which cases the court is willing to hear, says law professor Alan Morrison. “It’s very hard to get a consumer, environmental or workers case up, compared to business,” said Morrison, who teaches at George Washington University. Morrison is the former director of Public Citizen Litigation Group, the liberal advocacy organization that he founded with Ralph Nader in 1972.


Some justices said any perception of a tilt toward corporate America might stem from the nature of litigation today. First, the court is seeing more patent and intellectual property cases, which tend to involve business-related matters. Second, the court is hearing challenges to laws that were enacted following the 2008 financial crisis and involve new regulatory issues.

LAWYERING CONCERNS: U.S. Supreme Court Justice Antonin Scalia acknowledged that he sometimes votes against hearing a case if he fears it will be presented poorly and he expects another opportunity to decide the issues the case presents. REUTERS/Darren Ornitz

“We don’t want the justices to filter cases through advocates. It’s fine if you trust and agree with those in control, but what happens when you don’t?”

Jenny Roberts, associate dean, American University Washington College of Law

In addition, some liberal advocates are unwilling to bring certain cases to a conservative-leaning high court, fearing an unfavorable decision that would set a nationwide precedent. Like their business-oriented counterparts, public interest lawyers effectively influence the court’s agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda.

“You don’t want to go up and make matters worse,” said Scott Nelson, a lawyer at Public Citizen and one of the most successful attorneys at getting cases before the justices.

Given the current makeup of the high court, his advocacy group focuses more resources on opposing the petitions filed by business. “Sometimes when I’d rather not take a case, I emphasize my limited time and resources,” Nelson said. “Talking about resources is a nicer way of no, than telling someone, ‘You don’t have a good case.’ ”

Measuring the impact of these elite attorneys on how the court ultimately rules is difficult. Many factors affect how justices interpret the Constitution and federal statutes. “It’s not like we're judging a moot court: Which lawyer is better?” said Justice Samuel Alito. “It’s the case, not the lawyer.”

But the involvement of attorneys recognized for their Supreme Court experience can influence whether a case simply makes it before the court, a prerequisite to a decision affecting the law of the land.

“If you know you have a solid beginning, two people making the best argument on both sides, that makes it less anxious for you,” said Ginsburg, the senior liberal on the court.

An absence of skilled lawyers also makes a difference.

“Any number of people will vote against a cert petition if they think the lawyering is bad,” said Justice Clarence Thomas, a conservative. He said such decisions stem from the justices’ desires to ensure that both sides have strong representation.

Justice Antonin Scalia, also a conservative, acknowledged that in some instances he will vote against hearing a case if he fears it will be presented poorly and he expects another opportunity to rule on the issues the case presents. “I have never voted to take a case only because a good lawyer was on it,” Scalia said. “But I have voted against what would be a marginally granted petition when it was not well presented…. where the petition demonstrates that the lawyer is not going to argue it well.”

The justices say that some top advocates do champion individuals against corporations. They frequently cite two lawyers.

One is Jeffrey Fisher, who leads Stanford Law School’s Supreme Court clinic, a group that represents criminal defendants and employees, consumers and other individuals. Law clinics, which don’t charge clients, were created to give students hands-on appellate experience. Fisher has argued about two dozen cases before the high court.

Clinics are a limited counterweight to the elite bar, however. Some are associated with top corporate lawyers, which means the clinics steer clear of some of the same business cases that leading law firms avoid. And most clinics are tiny – staffed by two professors and a rotating cast of students. “We can only do so much,” Fisher said.

CONSUMER COUNSEL: David Frederick, a former Supreme Court clerk and assistant solicitor general, is cited by justices and others as the counterbalance to the corporate-focused bar. He often represents individuals in cases against businesses. REUTERS/Jonathan Ernst

The other lawyer often cited by the justices as a counterbalance to the corporate-focused bar is David Frederick. A former Supreme Court clerk and assistant solicitor general, Frederick is among the private lawyers who have appeared most before the court during the last decade.

Even so, Frederick is just one lawyer handling a handful of Supreme Court cases a year; corporate firms account for more than half of the court’s docket. Frederick also noted that he has represented corporations as well as individuals at the high court.  

“Are we a valid alternative?  We certainly could handle responsibly a few more cases,” Frederick said. “But for the large quantity of cases your data reflects, it would not be realistic to call us the alternative.”


The court provides loose guidelines on the kinds of cases it will take. It typically seeks cases that give it the opportunity to settle disagreements between lower regional courts of appeals – so-called circuit splits. The idea is to ensure a consistent interpretation of the law and the Constitution.

The justices may decide to take cases that do not include a circuit split if the case involves issues of immediate and national importance, such as President Obama’s health care program, the Affordable Care Act. Unlike in the lower courts, where dozens of issues may be debated, the Supreme Court generally limits its review to one or two discrete issues per case.

When lawyers submit a petition to the high court, their names are on the cover of the filing. Supreme Court clerks provide the initial screening of these petitions. Eight of the justices participate in a “cert pool,” a process in which one of their clerks summarizes a case for the other justices to consider. Alito does not participate in the cert pool and has his own clerks review every petition.

One fact a clerk may highlight in the memo is the presence of a prominent, highly regarded lawyer who’s involved in the case.

Morrison, the George Washington law professor, said clerks may be reluctant to back an inexperienced lawyer, fearing that doing so might lead to the acceptance of a case that’s poorly presented or based on a moot legal question. Playing it safe spares the court the embarrassment of having to dismiss a flawed case after it has been fully argued. Conversely, the clerks know which advocates the justices respect and admire.

“The cert pool memo certainly creates additional barriers” for lawyers who aren’t well-known to the court, Morrison said.

Familiarity with certain advocates might make the difference in whether an ambivalent justice votes to take up a case, said Eugene Fidell, a longtime Washington lawyer now teaching at Yale Law School. That means the specialty bar may be able to skew the court’s docket toward the litigation agendas of their clients, Fidell said.

“There is something disturbing, on a symbolic level, about an important national institution looking like an inside-the-Beltway club,” he said.


One of the fastest-rising members of that club is Katyal, the lawyer who emulates Chief Justice Roberts.

In at least one sense, Katyal is atypical of the elite bar: A Hindu who was born to Indian immigrants, he is one of just three racial minorities in the top five dozen.

In all other respects, Katyal fits the paradigm. Like 31 of the top 66, he went to one of America’s top two law schools (Yale). And he cultivated the right mentors, having worked directly for three of the current justices: Roberts, Breyer and Elena Kagan.

When discussing his work, Katyal often talks of the chief justice. He mentions one particularly notable instance, when he interviewed with Roberts for a summer job after law school. Before accepting, he asked Roberts, a Republican, whether Roberts would be comfortable working with a Democrat.

“Not only would I be comfortable with it,” Katyal quoted Roberts as saying, “I want you here because I want to learn what others who may at times see the world differently than I think.”

Katyal cited that conversation in a 2002 letter he wrote to the U.S. Senate Judiciary Committee in support of Roberts’ nomination to an appeals court.

Katyal later joined the Obama administration as the principal deputy solicitor general in 2009 – the same title, he notes, that Roberts had in the George H.W. Bush administration. After Kagan left as solicitor general to become a justice in 2010, Katyal tried for the top job but lost to the more experienced Donald Verrilli.

“It has become a guild, a narrow group of elite justices and elite counsel talking to each other.”

Michael Luttig, general counsel, Boeing Co.

“It was probably the hardest professional thing that I have gone through,” Katyal said. Still, he said, he quickly realized the opportunities that a Supreme Court specialty afforded.

“I had calls from a bunch of law firms,” he said. “So many sweet things happened.”

Attorney General Eric Holder hosted a farewell party for him, he said, and Justices Roberts, Breyer and Kagan attended.

Then, Katyal was hired to take over the appellate practice at Roberts’ former firm, Hogan Lovells. He arrived to great news. “The day I walked in here,” Katyal said, “there was a letter waiting for me from the chief.” Katyal had been appointed by his former mentor to a prestigious judicial committee.

Since he joined Hogan Lovells three years ago, Katyal has worked hard to build the practice. He tapped college and law school connections and reached out to tech companies, knowing of the high court’s growing interest in lucrative patent disputes. He also burnished his pro-business bona fides in order to better attract deep-pocketed corporations. He even offered to represent some litigants for free.

Among Katyal’s successes: In July, he persuaded the justices to take up an appeal by his client, a group of gas companies accused of manipulating prices. Katyal is seeking to reverse a lower-court ruling that allowed the antitrust case against the traders to go forward. The appeal will be heard in January.

At stake, Katyal asserted in court filings: hundreds of millions and perhaps billions of dollars for corporations.

“We’re not where the chief was when he was here,” Katyal said of his firm’s Supreme Court practice. “But that’s where we want to go. That’s our goal.”

Edited by Blake Morrison and Amy Stevens

Elite law firms spin gold from a rarefied niche: getting cases before the Supreme Court

WAL-MART WIN: Gibson Dunn lawyer Ted Boutrous represented Wal-Mart against a class of 1.5 million women who sued alleging discrimination. He won a 5-4 decision at the U.S. Supreme Court. Here, he speaks with reporters following oral arguments in the 2011 case. Next to him, Wal-Mart official Gisel Ruiz. REUTERS/Larry Downing

Part 2: The corporate tilt of the court’s specialty bar leaves consumers and workers with a smaller pool of top attorneys

WASHINGTON – On a March morning in 2011, lawyer Ted Boutrous approached the lectern at the U.S. Supreme Court. Boutrous represented the world’s largest retailer, Wal-Mart, in one of the most anticipated business cases in years. A trial judge had certified a class of more than 1.5 million female employees who alleged systematic gender discrimination.

If the women prevailed, Wal-Mart stood to lose tens of billions of dollars. Yet before Boutrous even began – “Mr. Chief Justice and may it please the Court…” – he had already succeeded in one significant way: As a result of his work on the case, Wal-Mart was becoming a premier client of his law firm, Gibson, Dunn & Crutcher.

Today, Gibson Dunn handles real estate, securities, corporate, environmental and other legal matters for Wal-Mart – work that has generated more than $50 million in new revenues for the firm, say people familiar with the relationship.

Gibson Dunn is not the only law firm to turn Supreme Court appearances into gold. After the firm Sidley Austin won a Supreme Court patent case for eBay, it earned at least $10 million in unrelated legal fees from the online retailer, say people with knowledge of the account. Likewise, the firm Jones Day secured Westinghouse/CBS as a major client following a successful high court case. In the years that followed, the relationship generated more than $10 million in fees, sources say.

Securing profitable, long-term relationships with America’s largest corporations is one reason major law firms began creating Supreme Court practices in the late 1980s and early 1990s.

Now, corporate firms so dominate the Supreme Court bar that they boast outsized access to a high court that’s already inclined to support corporations over individuals.

A Reuters examination of about 10,300 court records filed over a nine-year period shows that lawyers at a dozen law firms, including Gibson Dunn, Sidley Austin and Jones Day, have become extraordinarily adept at getting cases before the Supreme Court. The news agency analyzed petitions filed by private attorneys, not those submitted by government lawyers or prison inmates and others who lack representation. Although the high court typically agrees to hear 5 percent of the petitions it receives from private attorneys, Reuters found that lawyers at the top dozen firms were successful 18 percent of the time.

These firms were involved in a third of the cases the high court accepted, Reuters found. When the justices agreed to hear cases brought on behalf of Big Business, top firms were involved 60 percent of the time.

A slightly larger group – 31 firms – accounted for 44 percent of all cases the court accepted.

The domination of the Supreme Court docket by firms that commonly represent business interests has a direct, largely unseen effect on consumers seeking to sue corporations: These individuals must select from a much smaller and, in many instances, less successful pool of lawyers to handle their cases.

The reason: Many elite law practices won’t take those cases. The activities of the firms’ corporate clients are so broad, and their concerns so intertwined, that the lawyers point to disqualifying conflicts of interest – some specific, some general.

An elite firm might refuse to represent an individual suing a corporation on a labor issue, for example, because it fears that winning the case could create a precedent that might hurt top clients in other industries. Large firms do take cases pro bono on behalf of the indigent. But those appeals are generally related to criminal law or social causes such as gay marriage – topics unlikely to affect U.S. business interests.

“We do not take cases that could make negative law for our clients,” said Jones Day’s Glen Nager, who has argued 13 cases before the Supreme Court.

The heads of several Supreme Court practices dispute whether public interest or consumer groups are truly disadvantaged when seeking effective counsel. “There are some practitioners out there who specialize in taking the cases the larger corporate firms can't take,” said Jonathan Franklin, a former law partner of now-Chief Justice John Roberts and head of the Supreme Court practice at Norton Rose Fulbright. “There is a sufficient pool of capable lawyers to take those cases, even if it's a smaller pool.”

But for many of the top firms, such conflicts mean declining to represent environmental organizations, labor unions, employees suing employers, or consumers filing class actions; each kind of case might conflict with the general interests of their clients.

ENOUGH ADVOCATES: Attorney Jonathan Franklin, a former law partner of now-Chief Justice John Roberts, heads the Supreme Court practice at Norton Rose Fulbright. He said there are enough capable lawyers to ensure that no client or issue is left poorly represented before the high court. REUTERS/Gary Cameron

“It’s not that there aren’t lawyers at these large firms who aren’t public-spirit minded and don’t want to do these cases. It’s that their business model won’t allow it,” said Joseph Sellers, a lawyer for the mid-sized firm Cohen Milstein, who argued against Wal-Mart at the Supreme Court.

“In terms of access to justice, the ability of individuals to get their issues raised in the Supreme Court is more limited,” Sellers said. “Our side just doesn’t have the resources.”


At their core, Supreme Court practices, like many things in the nation’s capital, are about money and proximity to power.

“If you want your firm to be viewed as a Washington institution, you have to have a Supreme Court practice,” said Pratik Shah, who leads the group at Akin Gump.

Chris Landau agrees. From his office, he has one of the best power views in Washington, looking directly toward the eastern side of the White House. When he works late, Landau can watch the president’s helicopter lift off into the sunset. On the windowsill before this vista, he has placed an autographed picture of himself standing beside Justice Clarence Thomas.

Landau runs the Supreme Court practice at Kirkland & Ellis, one of the older and most profitable law firms in America. His career arc, as well as the evolution of his firm’s high court practice, is typical of peers.

Landau graduated from Harvard Law School. He clerked for Thomas and for Justice Antonin Scalia, and joined Kirkland’s appellate practice in 1993, the same year as former Solicitor General Ken Starr.

The evolution of specialized, corporate-focused Supreme Court practices at Kirkland and other firms came as the justices began taking fewer cases – from about 150 annually in the 1980s to half as many today. That makes competition among lawyers fierce: More than 500 attorneys in Washington tout Supreme Court expertise on firm websites.

“It’s a very cutthroat environment,” Landau said.

Often, several veteran lawyers said privately, landing a Supreme Court case is almost as important to their firms as prevailing in court. On website biographies, lawyers and firms routinely list the number of Supreme Court arguments they’ve made and briefs they’ve filed; rarely do they list a win-loss record. Simply appearing before the top court brings with it prestige and publicity that firms believe help them recruit new corporate clients and lure the next generation of top attorneys.  

Most firms brand these lawyers not only as Supreme Court specialists but as appellate experts. Almost all of the lawyers, including Landau, spend more time arguing in U.S. courts of appeals, one rung below the Supreme Court. They assist partners in trial courts, and the firms work outside of the courtroom, advising corporations and trade associations on regulatory matters.

With Congress gridlocked, the court’s role has become more prominent, so much so that the nation’s most influential business lobby, the U.S. Chamber of Commerce, has hired five former Supreme Court clerks. (See related story)

Supreme Court cases themselves aren’t usually as directly profitable as other types of litigation because they generally require fewer lawyers and less research. By contrast, trial and due diligence can involve teams of lawyers to review reams of paperwork and evidence. In just one month, a large trial can generate $1 million or more in fees. Firms typically charge far less to handle an entire Supreme Court case: The bill might range from $50,000 to $500,000 but has, in some cases, reached beyond $1 million.

Besides petitioning the court to have cases heard, the top firms file “briefs in opposition,” aimed at dissuading the Supreme Court from granting an appeal if the client won in the lower court. They also frequently file “friend of the court” or amicus briefs. Most top firms submitted several dozen opposition and amicus briefs during the period Reuters examined. Records show their focus seldom varied: Whatever the type of brief, it largely reflected the interests of corporate America.

Like other firms that dominate the Supreme Court bar, Landau’s Kirkland clients are almost exclusively corporations. He has represented Morgan Stanley, BP, Dow Chemical, ConAgra Foods, Raytheon, Nationwide Mutual Insurance, Motorola, W.R. Grace and Union Carbide.

TOP SHOPS: Christopher Landau, left, and Pratik Shah are both partners at law firms that have had success in getting clients' cases before the high court: Landau at Kirkland & Ellis and Shah at Akin Gump. “If you want your firm to be viewed as a Washington institution, you have to have a Supreme Court practice,” Shah says. REUTERS/Joshua Roberts

“The last thing we want is to make one of our long-standing clients unhappy with what we do.”

Chris Landau, head of the Supreme Court practice, Kirkland & Ellis

The roster of clients makes Kirkland extremely unlikely to represent an individual suing a corporation, Landau acknowledged. “The last thing we want,” he said, “is to make one of our long-standing clients unhappy with what we do.”


Increasingly, the elite Supreme Court practices at firms are led by rainmakers, lawyers who have parlayed their government service into private sector profit. These lawyers are advocates not lobbyists, but they use their skills, experience, influence and connections in similar ways.

At the very top are many former solicitors general and their assistants. These attorneys gain unsurpassed experience before the Supreme Court by arguing on behalf of the federal government. Some solicitors general have argued scores of cases. Because this advocate has such a close relationship with the court, the solicitor general has sometimes been called the 10th justice.

Six former solicitors general now play a major role in a Supreme Court practice in Washington. Another recent solicitor general, Elena Kagan, is the court’s newest justice.

Firms and clients covet former solicitors general because they are consummate government insiders. To prepare to appear before the justices, solicitors general and their assistants meet face-to-face with senior officials throughout the government. They are often wooed by special interest groups that have stakes in cases.

Law firms also use lawyers with solicitor general experience to pitch regulatory and legislative work to clients. It is not unusual for a firm handling a Supreme Court case to remain involved long after a decision is issued, as lower courts implement the ruling and as the losing side lobbies Congress to alter or reverse it. Mayer Brown’s Andrew Pincus, for example, frequently appears before all three branches of government.

A former assistant solicitor general who has argued 23 Supreme Court cases, Pincus regularly files regulatory comments, testifies before Congress and writes remarks for others on his areas of expertise – antitrust, securities, patent, arbitration and financial issues. Sometimes, he testifies or advocates on behalf of business interests generally, sometimes on behalf of specific clients.  

“I tell clients that the same skills I use at the Supreme Court – oral arguments and writing briefs – can be brought to bear elsewhere in government,” Pincus said.  

As demand for specialization increases and the elite Supreme Court bar shrinks, some corporations now compete against one another to secure the top lawyers.

During his stints as the top attorney at Aetna and CBS/Westinghouse, Louis Briskman hired outside counsel in more than a half dozen Supreme Court cases from 1989 to 2013.

“It’s radically changed in the last 10 years,” Briskman said. “Back then, you looked for a specialist in an area of the law. Now, you are not going to go with the specialist who won for you at the trial court in Pittsburgh. You want the guy who knows the justices and the justices know. There are 12 lawyers and firms that keep coming up.”

Briskman said that the dozen includes two advocates he retained for Aetna and CBS: Miguel Estrada of Gibson Dunn and Paul Clement of Bancroft PLLC. Clement is a former solicitor general, and Estrada is a former assistant in the office. As cases move from trial to appellate courts, corporations often try to box each other out by retaining firms with superstar lawyers.

“These days,” Briskman said, “before you even finish your circuit appeals, the other side has already put down money on an Estrada or a Clement.”


Law firms have different goals than advocacy groups – profit, for one – but their Supreme Court practices often share an ideological interest in shaping the law for clients. For firms that are most active before the high court, those clients are more often than not corporations.

The Wal-Mart case illustrates not only how a Supreme Court victory helped a firm secure future business, but also how firms look for ways to use the high court to benefit all their corporate clients.

For Ted Boutrous, the route to the Supreme Court lectern in 2011 began decades earlier. As early as 1989, Boutrous and mentor Ted Olson began advocating for change on behalf of business to the courts, media and Congress. They were especially critical of punitive damages and class-action lawsuits, the legal process by which individuals band together as a group to sue over a common issue.

Throughout the 1990s, lawyers at Gibson Dunn and other large firms argued that class-action court rules were too favorable to consumers and encouraged spurious lawsuits. A potential turning point came in 1998, when all federal courts adopted a procedural rule change that made defending large class action suits easier for corporations accused of wrongdoing.

Under the previous rule, once a judge certified a class during pre-trial proceedings, appealing that decision became extremely difficult until after a trial had ended. The effect was pronounced: After a class was certified, most companies settled rather than risk large trial expenses and punitive damages. Because few cases were tried and appealed, there was a dearth of Supreme Court rulings on class action litigation.

The rule change adopted in 1998 permitted a company to lodge an immediate appeal on the issue of class certification. Shortly afterward, Boutrous, Olson and other Gibson Dunn partners began strategizing ways they could use the new rule to help corporate clients.

The Wal-Mart case caught the attention of Boutrous in 2004, shortly after a federal judge in San Francisco certified the class of 1.5 million women, the largest class in American history. Before moving forward with an appeal, Wal-Mart, the top Fortune 500 company, began looking for a new firm to handle the case. Many attorneys who were interviewed hedged their analysis, but the Boutrous pitch was different, recalls Michael Bennett, Wal-Mart’s general counsel for litigation.

“He told us there that in all probability the Supreme Court was looking for a case like this,” Bennett said. At that point, Bennett said, few companies had the resources to risk the appellate costs and potentially punitive penalties that come with forgoing a settlement for trial. “Wal-Mart happened to be a client with enough staying power.”

The case took six years to wend its way through the liberal-leaning 9th U.S. Circuit Court of Appeals. Judges ruled against Wal-Mart three times, including a 6-5 full court opinion in 2010. As Wal-Mart prepared to file a petition to the high court, however, Boutrous advised Wal-Mart that the Supreme Court’s make-up had become more favorable during the appeals process, lawyers involved in the case said. The 2005 and 2006 appointments of Roberts and Alito strengthened the pro-business orientation of a court already shedding its 1970s-era reputation as consumer-friendly.

“In terms of access to justice, the ability of individuals to get their issues raised in the Supreme Court is more limited. Our side just doesn’t have the resources.”

Joseph Sellers, lawyer who argued against Wal-Mart at the Supreme Court

The Wal-Mart appeal became the first Supreme Court case heard under the 1998 rule change. A few months after Boutrous made his oral argument before the court, Wal-Mart won. In a 5-4 ruling, the court determined that the class of 1.5 million was too large to prove a pattern of discrimination.

Afterward, the opposing lawyer, Sellers, said the decision overturned four decades of class-action jurisprudence. The business community hailed the decision as one that would curtail specious suits. Gibson Dunn posted a letter to clients the day after the ruling.

“This is an extremely important victory for all companies, large and small, and for their employees,” the letter said.

During a legal seminar that fall, Gibson Dunn attorneys demonstrated the stakes involved by displaying a PowerPoint slide with the logos of corporations that supported Wal-Mart at the Supreme Court – FedEx, Bank of America, Microsoft, Cigna, Kimberly-Clark, Walgreens, Dole, DuPont, Tyson, General Electric, Pepsi and Del Monte.

Last year, the firm scored two more Supreme Court class-action victories. One was on behalf of Comcast, which had been sued by cable subscribers in the Philadelphia region. The other was on behalf of Standard Fire Insurance, a subsidiary of Travelers, which had been sued by homeowners in Arkansas.

In the months that followed, Gibson Dunn lawyers said, the firm was approached by potential clients – corporations seeking help with class actions or other possible Supreme Court cases. The new clients include Toyota, Yamaha and Wackenhut (now G4S Secure Solutions).

The fallout from the decision in the Wal-Mart gender discrimination case, meanwhile, has created another source of revenue for the top firms: Because the high court ruled that a nationwide class of 1.5 million was too large, smaller groups of women began filing similar lawsuits across the country.

Each new filing created more business for plaintiff's lawyers - and for Wal-Mart’s law firm, Gibson Dunn.

Edited by Blake Morrison and Amy Stevens

In an ever-clubbier specialty bar, 8 men have become Supreme Court confidants

MAKING HIS CASE Lawyer Paul Clement appeared before the Supreme Court in March 2013 to argue that the Defense of Marriage Act was constitutional. Depicted on the bench are Chief Justice John Roberts (left) and Justice Anthony Kennedy. In June 2013, in a 5-4 decision, the court struck down the law that denied federal benefits to legally married same-sex couples. REUTERS/Art Lien/Handout

Part 3: The key role of arguing before the high court is concentrating in fewer and fewer hands. Many top orators once worked for justices - and some socialize with them, too

WASHINGTON – About 30 seconds into an appearance before the U.S. Supreme Court this fall, lawyer Paul Clement was interrupted by a question.

It came from Justice Elena Kagan, and it cut to the heart of his case. But during Clement’s response, another justice jumped in: his former boss, Justice Antonin Scalia. He suggested a different answer to the question that his fellow justice had posed.

Clement, once a clerk for Scalia, took the cue. “You could definitely say that, Justice Scalia.…”

“You could not only say it,” Scalia replied, “it seems to be true.”

“Well, all the better, then,” Clement said, drawing light laughter from the usually reserved audience.

The exchange illustrates the familiarity that distinguishes a handful of lawyers from more than a thousand other attorneys who have appeared before the Supreme Court during the past two decades.

Previous stories in this series explored how five dozen top lawyers and their firms have enjoyed remarkable success at persuading the high court to accept their clients’ appeals.

But an even smaller, more elite group of attorneys, including Clement, has come to dominate the final phase of a case: the oral arguments. That phase, a direct give-and-take with the justices, is an attorney’s last chance to sway the decision. A knack for connecting with the justices is crucial.

A Reuters analysis of high court records shows that a group of eight lawyers, all men, accounted for almost 20 percent of all the arguments made before the court by attorneys in private practice during the past decade.

In the decade before, 30 attorneys accounted for that same share.

In this ever more intimate circle, lawyers say, chemistry with the court is key. The October case was a milestone for the 48-year-old Clement: It marked the 75th time he had appeared before the high court, second most among active lawyers in private practice. The following week, at a party celebrating the feat, veteran attorney Lisa Blatt toasted Clement’s success.

“The justices love Paul,” Blatt declared. “They visibly relax when Paul stands up and they are smiling when he sits down.”


In exclusive interviews, many of the justices acknowledge the growing specialization of the Supreme Court bar, and they largely welcome it. They speak glowingly of the repeat performers, explaining that elite lawyers help them understand and sift through complex legal issues.

“The problem is when you have a tough case, you need really good lawyers to tee it up, to make the best arguments,” said Justice Clarence Thomas. “That’s what you are looking for.”

A lawyer’s arguments can affect the outcome – not often, but often enough, said Justice Anthony Kennedy. The swing vote in many high-profile cases, Kennedy said a lawyer can change minds by framing a case or issue in ways the justices hadn’t considered.

“I go in with an inclination, underscore inclination,” Kennedy said. “Not a two-week sitting goes by that a justice doesn’t say, ‘I went in with this idea,’” and then heads in a different direction.

As retired Justice John Paul Stevens explained, “They earn respect by their performances. And because they have respect, they are more successful. I am not aware of any downside.”

Charles Ogletree, a professor at Harvard Law School, disagrees. “I think that hearing different voices, from more women and people of color, would change the way the court looked at cases and analyzed them,” Ogletree said.

SALUTING 75: Attorney Lisa Blatt delivers a toast at a party to honor lawyer Paul Clement. In October, Clement made his 75th oral argument before the U.S. Supreme Court. REUTERS/Yuri Gripas

No matter; the club is only growing tighter. In the last term alone, 53 percent of the cases the court heard featured at least one lawyer – in government service or private practice – who had clerked for a sitting justice. That’s three times more often than 20 years earlier, Reuters found.

The eight lawyers who have appeared most often before the court have especially deep connections to justices past and present. All but one have worked in the powerful U.S. Solicitor General’s office (whose lawyers are constantly at the court representing the federal government), or for a justice as a law clerk, or both.

Justice Stephen Breyer values their understanding of how the high court operates. “The Supreme Court is not the CIA,” Breyer said. “I want people to know how the court works.”

The eight advocates have represented a varied clientele. Lawyer Ted Olson not only advocated for George W. Bush in Bush v. Gore but also on behalf of same-sex marriage. Attorney Seth Waxman has represented Bank of America and death-row inmates. Gregory Garre defended the University of Texas’ affirmative action policy. And David Frederick won a judgment from pharmaceutical maker Wyeth for a woman who lost an arm to gangrene after taking an anti-nausea drug.

But like Clement, this group as a whole primarily represents corporate America. In the last 10 years, Reuters found, half of their arguments were for businesses.


The connections between justice and lawyer extend beyond the courtroom and into social life.

Olson is perhaps the best known of the elite. After helping Bush win the 2000 election case, he became the new president’s first solicitor general. Olson returned to private practice and in 2010 prevailed in the Citizens United decision, which allows corporations and labor unions to spend unlimited amounts of money on political campaigns.

So familiar is Olson that justices referred to him by his first name in interviews. As Thomas put it, “You want to hear what Ted has to say.”

When Olson married in 2006, Justice Kennedy and retired Justice Sandra Day O’Connor were among the guests at the ceremony in Napa Valley, California. Olson and Scalia regularly attend an intimate New Year’s Eve dinner. The location: Justice Ruth Bader Ginsburg’s apartment at the Watergate complex. Last year, Kagan went, too.

Another prominent lawyer, Carter Phillips, has remained friends with Justice Samuel Alito since the two worked in the solicitor general’s office in the 1980s. Phillips is the only attorney in private practice who has appeared more often before the Supreme Court than Clement.

Two other leading Supreme Court advocates, Waxman and Blatt, appeared in a Shakespeare Theatre Company mock trial of Coriolanus last year, co-starring justices Ginsburg, Breyer and Alito. Waxman, a U.S. solicitor general during the Clinton administration, often crosses path with Scalia, too.

When a C-SPAN host once asked Scalia about a jocular exchange the justice had with Waxman during an oral argument, Scalia responded matter-of-factly. “I know Seth,” he said, “and consider him a friend.”

Law professors say such relationships should be of little concern. “It’s true of every court where people specialize, and people who specialize are going to become familiar to the judges,” said Steven Lubet of the Northwestern University Law School. But while all other federal judges have policies on socializing with lawyers, Lubet said, the top court does not.

“The U.S. Supreme Court, because it has never set any standard like that, basically is saying, ‘Trust us,’” Lubet said. “I don’t think anyone is doing anything wrong, but it would be good to know.”


Justices rarely disqualify themselves from cases. When they have done so, it was usually for financial reasons – such as owning stock in a corporation appearing before the court – not social ones.

No specific rules govern friendships between justices and those who come before the court. And in the past, the justices have considered their social lives to be largely irrelevant.

In 1942, Supreme Court Justice Robert Jackson spent a weekend with President Franklin D. Roosevelt in the Virginia countryside. The next month, Jackson heard a major court case about the administration’s powers, and later wrote the opinion that favored the president. In 1963, Justice Byron White went skiing in Colorado with Attorney General Robert Kennedy. A few weeks later, Kennedy personally argued a case before White and the other justices.

FAMILIAR FACE: No active attorney in private practice has appeared before the Supreme Court more often than Carter Phillips, a lawyer with the firm Sidley Austin. REUTERS/Jonathan Ernst

“I think that hearing different voices, from more women and people of color, would change the way the court looked at cases and analyzed them.”

Charles Ogletree, law professor at Harvard Law School

“I see nothing wrong with Justice White’s and Justice Jackson’s socializing,” Scalia wrote in an unusual 2004 memorandum, citing those trips when he himself was under scrutiny. Friendships shouldn’t trigger automatic recusals, he said.

Scalia’s comments came after he took a duck-hunting trip with Vice President Dick Cheney. The court was considering a case in which environmentalists sought records from an energy committee led by Cheney. After the trip, the Sierra Club called on Scalia to recuse himself. He declined.

Recusal should be rare, Scalia said, because justices who bow out cannot be replaced, and those appealing to the high court may be disadvantaged: With only eight remaining on the bench, it becomes harder to secure four votes necessary to get the court to take a case, and later, five votes needed to win a decision.

“A rule that required members of this court to remove themselves from cases in which the official action of friends were at issue would be utterly disabling,” Scalia said.

Richard Painter, a University of Minnesota law professor, agrees that a strict rule would be a bad idea. A crafty lawyer could find ways to bump a particular justice.

“If there’s too much made of these recusals, you can game the system,” he said.


The Supreme Court’s culture changes over time, and the court of Chief Justice John Roberts has developed its own character. No matter their political leanings, today’s justices are temperamentally more suited toward technical arguments than sweeping philosophical statements, says Evan Caminker, a University of Michigan law professor. Attorneys who want to win should play to such inclinations, he says.

“It becomes more important that you speak their language,” said Caminker.

A strong defender of a specialized bar, lawyer Clement says that’s what he does with the justices, translating technical statutes or difficult constitutional questions. He does so succinctly and without notes, a combination that distinguishes him from most of the lawyers who argue before the high court.

“There are definite ways that the justices want their questions answered,” Clement said. “If you know that, you can tailor your answers and presumably have better effect.”

In his spare time, Clement listens to tapes of lawyers arguing before previous courts. He said he’s amazed at how different the Roberts court is from its predecessors, especially in terms of the rapid-fire questions from the bench and the justices’ interest in the technical intricacies of a case.

“I’ve grown up with this court,” Clement said. “To me it’s natural: The art of Supreme Court advocacy is going to be the art of answering questions, as opposed to giving grand speeches.”

HIGH COURT: U.S. Supreme Court Chief Justice John Roberts, left, applauds with fellow justices Anthony Kennedy, second from left, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan before President Barack Obama's State of the Union address earlier this year. REUTERS/Larry Downing

“They earn respect by their performances. And because they have respect, they are more successful. I am not aware of any downside.”

Retired Justice John Paul Stevens

That inside knowledge, say attorneys who aren’t a part of the elite specialty bar, can be crucial in gaining access to the nation’s highest court.

Consider the case brought to the Supreme Court in 2010 by Pennsylvania attorney Robert Goldman. A former federal prosecutor, Goldman had 30 years of trial experience, including handling complex international arms smuggling cases. But as Goldman faced a Supreme Court deadline, he was struggling to write a cert petition for his client, a woman convicted of trying to poison her husband’s pregnant paramour.

On a Friday afternoon, five days before the petition was due, he received a call from an associate of Clement. Would Goldman be interested in having Clement argue the case on his behalf?

“Mama didn’t raise no fool,” Goldman said. “I put my ego aside for the client.”

Clement helped draft the briefs, and he argued the case. They won 9-0, and the decision overturned the woman’s conviction and six-year sentence.


Michael Costello, a Michigan insurance company lawyer, made the same calculation in a civil rights case.

Two policy holders – New Jersey counties that operated jails – were defending a practice of strip-searching people detained for even minor offenses. Costello’s insurance company would be on the hook for any damages. He recalled a colleague’s advice as the case headed to the Supreme Court in 2011. Their opponents had already hired appellate specialist Thomas Goldstein, one of the eight lawyers who has appeared before the court most frequently. Goldstein was working with Stanford Law School professor Jeffrey Fisher, another of the eight.

“They’ve got a heavy hitter,” Costello’s colleague told him. “We need a heavy hitter.”

Costello hired Phillips, the lawyer who has appeared most often before the high court in private practice. He won on a 5-4 vote.

Labor, consumer and civil rights advocacy groups traditionally have sought to put forth an attorney who shares their ideology. But they, too, have begun to turn to specialists. For a case this year, the Service Employees International Union hired Paul Smith of Jenner & Block, a former Supreme Court clerk. The union lost, but not as badly as it feared.

The rise of the Supreme Court specialty bar is not universally embraced by the profession. But it is by the justices. Two, in particular, lamented the refusal of some criminal defense lawyers to turn over high court cases to specialists.

“It is as if they are arguing with one hand tied behind their back,” Kagan said.

Said Justice Sonia Sotomayor: “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.”

Last year, leading criminal defense attorneys unsuccessfully urged one trial lawyer to relinquish a capital case. If San Antonio lawyer and Supreme Court novice Warren Wolf lost the case, they worried, it could create a harmful precedent for others on death row in Texas. “People said, ‘You’ll ruin it for everybody,’” Wolf recalled.

FREQUENT VISITOR: A former U.S. solicitor general, attorney Seth Waxman is now in private practice and is one of the eight attorneys who has appeared more often before the high court. Among his clients: Bank of America. REUTERS/Stefan Zaklin

Wolf declined to step aside. But he accepted the help of Waxman, a former solicitor general who has also defended death row inmates pro bono.

In the well of the Supreme Court, Waxman sat close to Wolf as the Texas attorney debuted at the lectern. Sometimes, Waxman passed Wolf notes. Two justices appeared piqued when Wolf did not directly answer their questions.

Wolf, with an assist from Waxman, won a 5-4 decision for his client. “I owe a lot to a lot of people,” Wolf said afterward, “but ultimately, I’m the guy who stood up there and did it.”

St. Louis lawyer Bob Marcus also got help from a top Supreme Court lawyer. In 2011, he recalled, his firm was preparing a Supreme Court brief on behalf of an injured railroad worker against CSX. That’s when he received a call from Frederick, one of the few top lawyers who will oppose big business before the court. Marcus had received offers for help from other lawyers and declined. But none matched Frederick’s stature. The brief was due in about a week.

“The best three words I heard in the entire case came during that call,” Marcus said. “And they were David Frederick saying, ‘I’ll do it.’”

Marcus said Frederick quickly redrafted the brief in a way “that took it to a whole new level.” They won the case on a 5-4 decision.

But what also impressed Marcus is what happened in the minutes before the oral argument.

Waiting in a lounge outside the Supreme Court chamber, Marcus watched Frederick chat amicably with a casually dressed woman he did not recognize. Shifting nervously as he anticipated the biggest case of his life, Marcus asked Frederick about the hallway encounter. “Who was that woman?” he wondered.

“Oh,” Frederick answered matter-of-factly, “that was Justice Alito’s wife.”

Edited by Blake Morrison and Amy Stevens