More About the Court in 2014!

September 23, 2014

Appellate attorneys handle cases in appellate courts. Some of us who don’t specialize as much as others handle appeals as part of a regular practice. (I think I have argued about 25 appellate cases over the past 30+ years.) For others, though, it’s all they do.

Then there is the Supreme Court bar. If there’s a formal organization I’m not aware of it, and I—like many, many thousands of others—am admitted to practice before the United States Supreme Court. (Why get admitted to practice before the Court, when having a case before the Court is highly unlikely. Here’s the answer, in “For Lawyers, Joining the Supreme Court Bar is a Vanity Trip” by Orin Kerr.)

No, the Supreme Court bar to which I refer is a small group of attorneys whose practices revolve around handling cases before the Supreme Court. These practitioners live and work in Washington, mostly, and while their practices are usually not limited to Supreme Court cases, it’s the main focus of their practices. (The group tends to include very, very smart attorneys, many of whom have clerked for a justice, worked in significant roles in the government, etc.)

Adam Liptak wrote an article for the New York Times, Specialists’ Help at Court Can Come with a Catch, almost four years ago. He explains how and why certain attorneys appear so often before the Court. And just yesterday he wrote Seeking a Same-Sex Marriage Case Fit for History, also for the New York Times. Two articles; same basic theme:  attorneys want to appear before the Court, because of ego, the intellectual challenge, as a means to build a practice! Shocked you are, I’m sure, that these motives might play a role in so important a process.

So it goes, and in many respects, there’s no great harm here, although one of Mr. Liptak’s 2010 examples points up what can happen when an attorney, focused perhaps on his or her own reasons for going forward, can muck things up pretty badly. What fascinates me are the “made for the Court” cases.

I talked about these cases briefly just last week in The “Dumbing Down” of Our High Court. Marcia Coyle—NewsHour commentator and really smart lady—wrote The Roberts Court about the very subject. She digs deep behind cases involving school desegregation (Parents Involved in Community Schools v. Seattle School District No. 1), guns (District of Columbia v. Heller) political money (Citizens United v. Federal Elections Commission), and health care (National Federation of Independent Business v. Sebelius). In what may be four of the five most significant cases decided since Chief Justice Roberts joined the Court in 2005—I think United States v. Windsor, the same-sex marriage case from 2013, ranks very high—Ms. Coyle demonstrates how cases get created and managed, from beginning to end. “Manufactured” might be an even better word!

I see little value in this trend. For sure, we’ve always had people who filed suits about principles, not money. Now, however, we have attorneys out looking for these cases, for political and personal reasons. And not just looking for the cases that may already exist, like same-sex marriage claims. No, in some cases attorneys find victims, even when those people don’t know they’ve been harmed, and maybe when they have not, in fact, suffered any harm at all. I don’t like this one bit!


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