Elites At Cert – Above the LawAbove the Legislation

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cartoon The Supreme Court architectureThe percentages are stacked towards attorneys searching for to have their circumstances heard by the Supreme Court docket. Whereas attorneys engaged on circumstances accepted for evaluation have a 50/50 probability of success on the deserves, the common chance of a cert grant is round 1%. Sure attorneys although have a a lot greater success charge (additionally documented in a previous article). This submit takes a more in-depth take a look at elite attorneys’ present success on the cert stage. It additionally seems at among the correlates of cert success to see how these attorneys rank in keeping with these variables.  The timeframe for this evaluation is from the start of 2018 till the current.

To hone in on particular attorneys, for this evaluation I examined the cert success of the eight most lively attorneys at oral argument in keeping with a earlier article.  These attorneys embrace Paul Clement, Kannon Shanmugam, Jeffrey Fisher, Shay Dvoretzky, Neal Katyal, Dan Geyser, David Frederick, and Seth Waxman.  Three of those males, Paul Clement, Neal Katyal, and Seth Waxman, had been earlier Solicitors Common of america.

On the most basic stage we are able to study the variety of cert petitions filed throughout this era the place a number of of those attorneys had been listed as an legal professional engaged on the petition (all analyses of those petitions had been based mostly on the attorneys’ presence on the petition and never essentially whether or not the legal professional was counsel of document).

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Paul Clement has the lead in petitions filed by fairly a margin with 66.  Neal Katyal has the subsequent most petitions with 42.  The three subsequent attorneys, Kannon Shanmugam, Jeffrey Fisher, and Seth Waxman cluster along with 34, 33, and 27 petitions respectively.

To take a look at these knowledge one other approach, the subsequent graph seems on the variety of petitions damaged down by 12 months.

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Paul Clement had probably the most petitions in a 12 months of all attorneys on this submit with 18 in 2018.  No legal professional had as many petitions as Paul Clement in 2019 or 2020 both, the place Clement filed 17 petitions in every year. Neal Katyal had the subsequent most in a 12 months with 15 in 2019.

One other solution to break down these petitions is by which decrease courtroom heard the circumstances previous to the Supreme Court docket petition.

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Essentially the most petitions got here from the 9th Circuit which is probably not shocking since circumstances granted from the 9th Circuit usually outnumber these from every other courtroom.  Mixed petitions from state courts come subsequent, adopted by petitions from the Federal Circuit and the Fifth Circuit with petition numbers dropping off from there.

A second view of those knowledge is in keeping with attorneys who had probably the most petitions in a selected courtroom. The minimal worth on this evaluation for any legal professional is 4 petitions from a selected courtroom.

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Paul Clement had probably the most petitions from one courtroom with 18 from the 9th Circuit. Clement additionally had the subsequent most with 12 from state courts. Seth Waxman had the third most with 11 petitions from the Federal Circuit.

The subsequent determine seems at cert success measured by the variety of granted petitions divided by the general variety of petitions filed eradicating pending and dismissed petitions and counting GVR (grant, vacate, and remands) as granted petitions.

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Shay Dvoretzky had the best share with simply over 41% of petitions granted. Kannon Shanmugam got here in subsequent with simply over 37% of his petitions granted. Subsequent come David Frederick and Paul Clement who every had roughly 33% of their petitions granted.

Two further notable options of cert petitions are the variety of instances every petition goes earlier than the justices earlier than they formally vote on whether or not to listen to the case and the quantity of amicus help behind petitions on the cert stage.

First a take a look at the common variety of distributions by legal professional. This offers a way of the period of time the justices spend reviewing a given petition.

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Paul Clement has probably the most common distributions at over 2.5 per petition with Shay Dvoretzky coming in subsequent with over 1.9 distributions per petition. Clement additionally had the best variety of separate opinions of the group to go together with denied petitions with 4.  These separate opinions are a robust sign that sure justices would have granted the petition. The one different legal professional with a separate opinion related to a petition was Neal Katyal.

The three petitions distributed probably the most instances all got here from Paul Clement. The Court docket distributed the petition in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano 16 instances earlier than deciding to GVR the petition. Subsequent with 12 distributions was Clement’s petition in Kennedy v. Bremerton Faculty District. This petition was finally denied. Lastly was Clement’s petition in PennEast Pipeline Co., LLC v. State of New Jersey, which was distributed 9 instances and finally granted by the Court docket.

One other facet of those petitions is the variety of amicus briefs filed previous to a choice on cert. The common variety of cert amici by legal professional is proven under.

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Kannon Shanmugam leads the best way with 3.2 amici briefs on common per petition adopted by Neal Katyal with 2.9 and Paul Clement with 2.8.

Cert amici usually sign curiosity in a petition and are sometimes a robust sign to the Court docket of a case’s significance. Nonetheless, a number of of the petitions with probably the most amicus help had been denied.

Essentially the most cert amicus briefs in a case had been 20 filed in help of Neal Katyal’s petition in Maryland-Nat. Capital Park and Planning Com’n v. American Humanist Affiliation.  This petition was granted. The subsequent most had been filed in help of a petition that listed Kannon Shanmugam’s help, Google LLC v. Oracle America, Inc., with 17. This was additionally granted. The third most amicus briefs filed on the cert stage in these circumstances with 13 was in Paul Clement’s petition in Bradley Boardman, a Washington Particular person Supplier, et al., Petitioners, v. Jay R. Inslee.  This petition was later denied. Of the eight petitions with probably the most amicus help three had been granted, 4 had been denied, and one remains to be pending (Paul Clement’s petition in Joseph A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT has ten cert amicus briefs).

Is that this pattern of elite legal professional participation and success at cert prone to proceed? All indicators level to sure. These attorneys together with a number of others command a robust capability to sway the justices in favor of their petitions due to the robust circumstances they take, as a result of their names are on the petitions, and since they know the right way to draft petitions in a fashion that appeals to the justices. A final graph reveals the variety of pending petitions from every of those attorneys.

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These numbers present that these attorneys are fairly lively on the cert stage and this could not finish anytime quickly.

Learn extra at The Juris Lab…


Adam Feldman runs the litigation consulting firm Optimized Authorized Options LLC. For extra info write Adam at afeldman@thejurislab.comDiscover him on Twitter: @AdamSFeldman.



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