Inside Job: How the Supreme Court Cozies Up to Big Business

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The Supreme Court Building at night. (Image: Wikimedia Commons/ Slowking)

The Supreme Court Building at night. (Image: Wikimedia Commons/ Slowking)

Corporate America has enjoyed a notably high rate of success arguing cases before the Supreme Court during Chief Justice John Roberts’ tenure. According to a report by The Alliance for Justice, “In just the last few years, the Court has radically rewritten laws in order to shield big business from liability, insulate corporate interests from environmental and antitrust regulation, make it easier for companies to discriminate against women and the elderly, and enable powerful interests to flood our election process with special interest dollars. Fairness has been thrown out the window. The 1% keep winning while the 99% keep losing.”

But this kind of deference to business isn’t as new as you might think. In his book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, Ian Millhiser, a senior constitutional policy analyst at the Center for American Progress, argues that the Supreme Court has always been an institution that in the interests of a rarified elite serves as a bulwark against popular democracy. 

So how is it that a branch of government that’s supposed to serve as a neutral arbiter falls so frequently on the side of the wealthy and powerful?

A three-part investigation by Reuters offers some insight. The news service found that a small group of high-profile attorneys, powerful law firms and outside advocates have created an “echo chamber” that surrounds the highest court in our judicial branch, and informs the reasoning that the justices apply to the cases that come before them.

In part 1, “The Elites,” Joan Biskupic, Janet Roberts and John Shiffman report that a small group of attorneys — most of whom are anything but household names — enjoy an astounding record of success bringing arguments before the Court.

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. …

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.

In the second article in the series, the three journalists look at a group of powerhouse law firms that occupy a rarified niche in the legal profession: specializing in arguments before the Supreme Court.

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.

In the final installment of Reuters’ series, the focus turns to an even rarer group of legal experts: eight men who specialize in making oral arguments before the Court. “Many top orators once worked for justices,” write Biskupic, Roberts and Shiffman. “And some socialize with them, too.”

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. …

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.

This is just a taste. You can read the entire series at this link.

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