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A “view” from the courtroom: Counting to five

April 24, 2019 by admin Leave a Comment

Today is the oral argument in one of the term’s biggest cases, Department of Commerce v. New York, about the Trump administration’s efforts to add a citizenship question to the 2020 census. It is also a rare day for afternoon arguments, and rarer still because there will be two of those.

Solicitor General Noel G. Francisco at lectern (Art Lien)

When the court squeezed the census case into its already announced April calendar, it made the wise decision to push the two cases that were originally set for this morning into the afternoon. Thus, after the 80-minute argument this morning, everyone gets a nice break before the court returns for Mitchell v. Wisconsin, about whether a state law authorizing a blood draw from an unconscious motorist requires a warrant; and Rehaif v. United States, about a “knowingly” provision of a federal firearm statute.

In honor of the census question, I have undertaken to conduct an “actual enumeration” of the population of the courtroom this morning. It’s not a simple task, because I am the only enumerator and I don’t have the benefit of distributing any census forms. In fact, I have to do the best I can from my seat in the press section. Just as with the actual count, there are comings and goings that complicate the task.

Let’s start with the bar section. My rough count is that 70 seats are filled, almost all those available, and that includes the four advocates who will argue the census case and their associates at the counsel tables. A few stragglers will be shown to seats in the bar section after the arguments begin, so I’ll set the total at 76.

Next up is the VIP section, which has three rows of benches and one row of cushy chairs to the right of the bar section (looking at the bench). Joanna Breyer, the wife of Justice Stephen Breyer, and Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, are among the 18 people I count in that section.

There are a number of court personnel, including the marshal, the clerk, marshal’s aides, at least a couple of employees who make sure the sound and recording system are running smoothly, and a few others. These number about 12 people. There are an ample number of Supreme Court police officers, but for reasons of security I won’t specify how many.

Big cases like this one also draw a number of the justices’ law clerks. Because I can’t see how many are filling their alcoves on the south side of the courtroom, I’ll impute that there are at least 12 of them here this morning. The others are all back in chambers working on opinion drafts and planning the end-of-year skit, I’ll presume.

Then there is the public section of the courtroom, which includes numerous long benches, some side chairs and three alcoves filled with smaller chairs. My count is that some 200 people are in the public gallery.

Normally a case like this might draw several members of Congress and officials from the administration. Secretary of Commerce Wilbur Ross, whose actions pushing for the addition of the citizenship question are at the center of the case, is evidently not here. Later today, he will tweet a shoutout to a Census Bureau report of an increase in new residential sales for March.

However, John Gore, the principal deputy assistant attorney general, who figures prominently in the so-called administrative record of the case, is here.

Congress is in recess this week, which may account for the lack of spectators wearing House member pins. But Rep. Carolyn Maloney, D-N.Y., is here, and she will join New York state Attorney General Letitia James at the press microphones on the court’s plaza after the argument.

At 10 a.m., the census count in the courtroom increases by nine, as the justices take the bench.

I have saved my enumeration of the press section for last, because the court has indicated the possibility of opinions today. On such days, even when a big case is being argued, several reporters will remain in the press room to learn which opinion or opinions are being released. If it is something big, they may elect to skip the argument altogether. That won’t be necessary today, though, because Chief Justice John Roberts has just opinion to announce.

“In case 18-459, Emulex Corporation versus Varjabedian, the writ of certiorari is dismissed as improvidently granted,” Roberts says. He then turns to Clerk of the Court Scott Harris for routine bar admissions. Some seven or eight reporters who were downstairs quickly make their way up to the courtroom, and most roll their eyes as they take their seats. It’s a blessing that reporters don’t have to write about a big opinion on such a busy day for arguments. But it seems that a DIG like this one could have been announced on a different day.

(Perhaps, though, a more substantive opinion got pulled at the last minute. Later Tuesday, the court announces the possibility of opinions of Wednesday, which had not been announced as a possible opinion day after last Thursday’s conference.)

So with the press section now full, I count 70 reporters present. And the result of the enumeration of the entire courtroom is 397 people, with no inquiry as to whether they are U.S. citizens or not. This does not include the groups of a dozen or so spectators who shuffle in and out throughout the argument as part of the three-minute rotating line. I fully acknowledge the possibility, even the likelihood, of an undercount.

As to the argument itself, Amy Howe has the main account (and on such a tight deadline between the morning and afternoon arguments!).

The court’s liberal bloc will spar repeatedly with U.S. Solicitor General Noel Francisco over the commerce secretary’s push for the citizenship question.

Justice Elena Kagan, a former solicitor general herself, tells Francisco that “your briefs are extremely well done. … But a lot of your arguments just do not appear in the secretary’s decision memo. And the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization.”

A short time later, Francisco says, “Your honor, I’m tempted to pocket the compliment and sit down, but I won’t do that.”

Two of the court’s conservatives, Kavanaugh and Justice Neil Gorsuch, ask about the long history of some use of a citizenship question, which was first asked on the 1820 census, as well as practices in other countries.

“What do we do with the history and the fact that this question” was on the main census form for “a long time,” Gorsuch asks.

Kavanaugh says, “The United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question.”

Francisco makes the same point about the UN in his brief, which is more respect than the international organization usually gets from U.S. conservatives.

The three advocates who argue on behalf of the challengers—New York state Solicitor General Barbara Underwood (a former acting U.S. solicitor general under President Bill Clinton), Dale Ho of the American Civil Liberties Union, and Douglas Letter, representing the U.S. House of Representatives as an amicus, do so ably, but it is uncertain they make much headway with the court’s conservatives.

The most explosive exchange comes toward the end of argument, as Francisco takes to the lectern for his rebuttal.

He suggests that challengers’ positions on standing are “effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it.”

When Justice Sonia Sotomayor seeks to question him on this, he keeps speaking, as he did with some of her other questions earlier in the argument.

The chief justice, who has been perceived as annoyed by Sotomayor’s frequent questions during a lawyer’s rebuttal time, feels compelled to cut off Francisco by saying, “Justice Sotomayor.”

“Are you suggesting that Hispanics are boycotting the census,” she asks. “Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?”

Not at all, Francisco says. It’s just that the challengers’ view could lead to groups feeling empowered to “knock off any question of the census that they found particularly objectionable.”

“Mr. Chief Justice, unless the court has further questions,” Francisco says.

“We’re all done,” Roberts says breezily before adding the more traditional, “The case is submitted.”

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Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

April 23, 2019 by admin Leave a Comment

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 minutes of often tense debate, the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.

Solicitor General Noel G. Francisco at lectern (Art Lien)

Ross announced the decision to include the citizenship question last year. The question is not entirely new to the census: It was generally included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000.

But a group of state and local governments, along with several civil rights groups, went to federal court to challenge Ross’ decision. In January, the court ruled that the decision violated the federal law governing administrative agencies and barred the government from including the question on the upcoming census. The Supreme Court agreed to take up the case right away, without waiting for a federal appeals court to weigh in, to resolve the issue once and for all by June, when the government needs to start printing millions of census questionnaires.

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

Solicitor General Noel G. Francisco (Art Lien)

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

Sotomayor was again skeptical, telling Francisco that the government’s rationale amounted to plucking out one sentence from the record and relying on it, while ignoring everything else that suggests that adding the question would reduce the accuracy of the data.

Justice Elena Kagan echoed Sotomayor’s concerns. The secretary of commerce can deviate from the Census Bureau’s experts, she conceded, but he needs a reason to do so. “I don’t see any reasons,” Kagan told Francisco. Instead, Kagan continued, it seemed more as though the Department of Justice’s need for the citizenship data was “contrived”; lots of civil rights officials at the Department of Justice, Kagan observed, have never asked for this data.

Arguing on behalf of the state and local governments challenging the decision to add the citizenship question, New York Solicitor General Barbara Underwood began by complaining that Ross had decided to add the citizenship question even though the documents on which he relied to make that decision contained strong evidence that doing so would lead to an inaccurate count. All the reasons that Ross has cited to justify adding the question, Underwood asserted, are false.

New York Solicitor General Barbara D. Underwood (Art Lien)

Chief Justice John Roberts pushed back, asking Underwood whether having the citizenship data wouldn’t affect enforcement of the federal Voting Rights Act. Isn’t this critical data, Roberts asked?

Justice Brett Kavanaugh noted that the United Nations recommends including a citizenship question. Not only has the United States often asked the question, Kavanaugh stressed, but other countries – including Spain, Germany, Mexico, Canada and Ireland – also ask about citizenship. Does this international and historical practice affect how we look at the decision to add the question? Kavanaugh queried.

Underwood responded that the information provided by the question is “very useful for a country to have.” But should it be included on the census, she countered, whose principal purpose is to count people, knowing that it will reduce response rates?

Justices Samuel Alito and Neil Gorsuch, however, pushed back against the idea that including the citizenship question, standing alone, was the root cause of a lower response rate. Citizens and noncitizens are different in a lot of ways other than whether they have citizenship, Alito observed: For example, there may be socioeconomic differences between a household with citizens and one with noncitizens, as well as language differences. So there may be other explanations, Alito suggested, for why households with noncitizens would be less likely to return their citizenship questionnaires.

Dale E. Ho for respondents New York Immigration Coalition, et al. (Art Lien)

Gorsuch said the same thing a few minutes later to Dale Ho, who argued on behalf of the civil rights groups challenging the inclusion of the citizenship question. Some states, Gorsuch told Ho, argue that there are other explanations for the reduced response rates beyond the inclusion of the citizenship question on the surveys that have gone out to some households – for example, the questionnaires may be too long, and less affluent households may not have the time to fill them out completely. What do we do, Gorsuch asked, with the fact that we don’t know?

When General Counsel of the House of Representatives Douglas Letter, who appeared as a “friend of the court” in support of the challengers, stood up to argue, he provided one of the only light moments in an otherwise strained day. Letter began by conveying the thanks of House Speaker Nancy Pelosi for allowing him to appear and argue. Roberts shot back, “Tell her she’s welcome.”

Letter told the justices that anything that undermines the accuracy of the census count is a problem, even if the information is wanted for another reason – such as enforcing federal voting rights laws. But he didn’t seem to make much headway: Even Justice Ruth Bader Ginsburg, who seemed to be siding with the challengers for most of the case, noted that Congress had been made aware of the decision to include the citizenship question but hadn’t taken any action. Kavanaugh then chimed in, asking Letter why Congress didn’t prohibit the use of a question about citizenship on the census, the same way it had banned questions about religion.

Douglas N. Letter for U.S. House of Representatives (Art Lien)

The stakes in the case are high. The federal government uses the data from the census to divide up the 435 members of the U.S. House of Representatives among the 50 states. After the 2010 census, for example, Texas gained four seats in the House and Florida gained four, while New York – the lead plaintiff in today’s case – and Ohio both lost two. Census data is also used to allocate federal funding for a wide variety of programs: In fiscal year 2016, the federal government distributed over $ 900 billion through such programs. The challengers say that, as a result, including the citizenship question could lead to fewer members of Congress and less federal funding for states with large populations of undocumented and Hispanic residents – many of which tend to skew Democratic.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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Argument transcript

April 23, 2019 by admin Leave a Comment

The transcript of oral argument in Department of Commerce v. New York is available on the Supreme Court’s website.

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Argument analysis: Employment discrimination law’s “natural experiment”

April 23, 2019 by admin Leave a Comment

As it turns out, oral argument in Fort Bend County v. Davis was not the most headline-grabbing Title-VII-related news emanating from the Supreme Court yesterday. Disagreement among the justices seemed relatively muted as they wrestled with whether the requirement that employment discrimination plaintiffs present their claims to the Equal Employment Opportunity Commission before filing lawsuits is a jurisdictional prerequisite or merely a claim-processing rule.

Raffi Melkonian for respondent (Art Lien)

The question matters because claim-processing rules can be waived, unlike jurisdictional rules. Here, Fort Bend County waited five years to argue that Lois Davis did not properly pursue her religious-discrimination claim with the EEOC; during that time, Davis’ case traveled from the district court to the U.S. Court of Appeals for the 5th Circuit and back again. If Title VII’s administrative-exhaustion requirement is a claim-processing rule, then Fort Bend’s failure-to-exhaust argument came much too late. But if instead the exhaustion requirement is jurisdictional, then it is never too late for a defendant to raise a plaintiff’s failure to comply; in addition, courts would be required to raise potential administrative-exhaustion problems themselves, rather than leaving those issues solely to the parties.

Congress is free to impose either jurisdictional requirements or mandatory claim-processing rules, and much of the argument was devoted to how to discern whether Congress intended the former or the latter. Representing respondent Lois Davis, Raffi Melkonian argued that the court should apply the clear-statement rule from Arbaugh v. Y&H Corp., another Title VII case, as “the best way to discern congressional intent.” In Arbaugh, the court held in an 8-0 opinion that Title VII’s employee-numerosity requirement was not jurisdictional, and wrote that Congress could override that conclusion by “clearly stat[ing]” to the contrary. Chief Justice John Roberts pushed back, asking if it was reasonable to apply a clear-statement rule announced in 2006 to a statute enacted earlier. Melkonian answered that the clear-statement rule was still the best way to discern Congress’s intention, given the severe consequences that accompany jurisdictional rules – in other words, Congress would have been unlikely to impose a jurisdictional requirement by implication. Justice Neil Gorsuch later returned to the issue during Jonathan Bond’s argument for the solicitor general in support of Davis, inviting Bond to agree that “our decisions are normally retroactive.”

Whether the court agrees that Arbaugh’s clear-statement approach applies to this case will likely affect its receptivity to Colleen Roh Sinzdak’s argument on behalf of Fort Bend County that the text and structure of Title VII indicate that the exhaustion requirement is jurisdictional. The same subsection of Title VII contains the exhaustion requirement and, two paragraphs later, a grant of jurisdiction for federal courts to hear “actions brought under this subchapter.” Sinzdak argued that taken together, these paragraphs provided “text linking explicitly to the jurisdictional provision,” as “part of an intricate scheme for statutory and judicial review.” Additionally, Sinzdak noted that when a government entity is the defendant, a jurisdictional requirement forcing parties to attempt to resolve a claim at the agency level effectively narrows Title VII’s waiver of sovereign immunity.

Justice Ruth Bader Ginsburg asked the first 14 questions during Sinzdak’s argument, expressing skepticism about Sinzdak’s position. Ginsburg’s questioning centered on the EEOC’s limited power to resolve claims, and suggested that it would be unusual to deem jurisdictional an agency process that can result only in conciliation, and not adjudication. Later, Bond amplified this argument, distinguishing from Title VII statutory schemes like the National Labor Relations Act, which allow agencies to resolve claims in decisions that are then reviewable by the federal appellate courts.

Much of the rest of the argument centered on the potential consequences of treating Title VII’s exhaustion requirement as a claim-processing rule. Justice Brett Kavanaugh suggested that “so long as defendants raise the argument,” such a rule would have little effect on employers, while also saving judges from the obligation “to look through the record to make sure each claim was specifically exhausted.” In response, Sinzdak posited that some employers might not have an incentive to raise a plaintiff’s failure to exhaust, to the detriment of the EEOC’s process. Here, Sinzdak was referring to cases in which plaintiffs could cure their failure to exhaust by returning to the EEOC, ultimately lengthening the time it would take to resolve their claims. Later, Melkonian argued that few cases would fall into this category, given the relatively short time – 180 or 300 days – that employees have to file an EEOC charge.

That exchange prompted a question from Justice Samuel Alito about whether stronger incentives for plaintiffs to file thorough EEOC charges would result in more cases being resolved at the agency level, and thus fewer cases reaching the courts. Although it wasn’t clear after argument how many claims are now successfully resolved at the EEOC level, Melkonian also argued that – given that most courts now treat Title VII’s exhaustion requirement as a claim-processing rule – “we have been running a natural experiment across this country on whether our rule works or not.” Roberts observed that it would be difficult to collect hard data about the outcome of this experiment, though Melkonian suggested that the EEOC (which supports his position) was in a position to “observe what’s happening in the district courts.” Later, Sinzdak pointed to “at least 50” decisions “in the last two months on Westlaw” in which courts dismissed unexhausted Title VII claims, arguing that “in our natural experiment, plaintiffs are not bringing their … claims to the EEOC.”

Because the justices spent little time pressing Melkonian or Bond on Title VII’s text, I predict a win for Davis and the federal government. Further, Ginsburg strikes me as the most likely author of an opinion in Davis’ favor, based on her apparent interest in the case and given that she also wrote Arbaugh. Finally, Roberts and Alito seemed the most supportive of Fort Bend’s position; if there is an opinion – either a majority or a dissent – in favor of the county, then I would expect one of them to write it.

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Empirical SCOTUS: Advocates who drive the justices’ votes

April 23, 2019 by admin Leave a Comment

Scholars of the Supreme Court often debate the role of lawyers in Supreme Court decision-making. For an attitudinalist, the justices’ preferences make all (or at least most of) the difference. According to this theory, justices will often vote based on their preferred policy direction, which minimizes the role of advocacy. More recent studies show that such a view, however, might obscure the impact lawyers have on Supreme Court output. Surprisingly, these two views are not necessarily mutually exclusive. Attorneys may also signal particular positions to the justices. If certain repeat Supreme Court attorneys take similar positions before the justices over time, the justices might presuppose such associations in advance of reading an advocate’s argument in the form of a brief.

This isn’t merely speculation. The federal government, for example, tends to take predictable positions in cases it argues before the Supreme Court. With this in mind, one study showed that attorneys from the Office of the Solicitor General signal their positions to the justices, and justices who are more partial to the government’s agenda are more likely to support OSG’s positions in given cases.

Although government attorneys are expected to advocate certain policy positions, nongovernment attorneys have more leeway in the positions they take. They may come back to similar positions in cases time and again, however. Among other things, this could be because of constraints at the firm level, their own selection decisions, or repeat clients’ requests.

In a 2015 study, Professors Adam Bonica, Adam Chilton and Maya Sen constructed a data-backed account of how attorneys’ preferences matter as well. An even stronger argument could be made for attorneys’ signaling effects if top Supreme Court attorneys not only hold specific policy preferences, but also tend to argue certain positions that align with these views. Of course, attorneys do not have unlimited agency in case before the Supreme Court, as many of the legal issues are generally resolved by the time a case gets to the court, and justices aren’t likely to vote for weak legal positions even if those positions accord with the justices’ policy preferences.

How can we discern whether particular justices are more or less partial to certain attorneys’ or firms’ positions in the aggregate? A cut at this involves matching justices’ votes with these attorneys and firms over a series of years. A previous Empirical SCOTUS post examined the most successful attorneys between the 2013 and 2017 Supreme Court terms. This post links that data with justices’ vote data from the Supreme Court Database to assess justices’ voting relationships with specific attorneys.

Because the Supreme Court takes only a small percentage of the thousands of cases petitioned to it each year, only a select few attorneys ever have a chance to argue cases before the court. The ability to break into Supreme Court practice is made even more difficult by the group of elite attorneys with multiple Supreme Court oral arguments. In this April 2019 oral argument sitting, for instance, about half of the arguing attorneys are first-timers before the Supreme Court, nine attorneys have 20 or more Supreme Court oral arguments in their career, and one attorney is arguing in two different cases. This disparity may play a role in the justices’ comprehension of repeat attorneys and their traditional positions on various issues.

OSG attorneys

These relationships between the justices and attorneys are apparent at the governmental level when looking at justices’ votes between the 2013 and 2017 Supreme Court terms. The following graph shows OSG attorneys with at least 30 total votes from the justices for these terms.

Click to enlarge.

Career Department of Justice litigators Michael Dreeben, Malcolm Stewart and Edwin Kneedler compose three of the four attorneys who received the most votes. Former Solicitor General Donald Verrilli received the second most votes after Dreeben.

By matching the cases these attorneys argued with the justices’ votes from the Supreme Court Database, we get a look at how successfully the attorneys fared. The following graph shows whether the balance of the justices’ votes in cases argued by these government attorneys was for or against the positions argued by these attorneys.

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The justices voted more frequently against several of the attorneys with the most overall votes, including Dreeben and Verilli, than they voted for these attorneys. The most successful attorneys based on these cumulative voting percentages were Ian Gershengorn, another former solicitor general, and previously mentioned Edwin Kneedler.

The next graph focuses on the attorneys with at least 50 percent “votes for” in the previous graph (a 50 percent vote-for share or more) and looks at their relative support from individual justices. The attorneys are organized based on their relative vote-for share, from greatest to least.

Click to enlarge.

Only four of the 11 government attorneys in the earlier graphs had vote-for shares of 50 percent or more. The justices’ votes were more polarized for some of these attorneys than others. Ian Gershengorn, who received the highest positive vote share, with almost 61 percent, received balanced votes from most justices. Justices Clarence Thomas and Stephen Breyer were the only justices to vote against him more often than they voted for him. Justices Sonia Sotomayor and Anthony Kennedy were the most supportive of Gershengorn’s positions, with Sotomayor voting in his favor in all four instances in which she voted and Kennedy voting in his favor in four of the five cases Gershengorn argued before him. Kneedler similarly performed well across justices, with no justices voting against his positions more frequently than they voted for his positions aside from Justice Neil Gorsuch. Stewart saw the greatest positive vote differential from conservatives Chief Justice John Roberts and Kennedy. Eric Feigin received more support from conservatives, Justice Samuel Alito and Thomas, than he did from liberals, Justices Elena Kagan, Ruth Bader Ginsburg, Sotomayor and Breyer.

Non-OSG attorneys

Repeat Supreme Court attorneys tend to have a good sense of what makes a winning argument before certain justices. However, they need to find ways to cobble together arguments supported by at least five justices, and the ability to do that varies by case and by position. Savvy veterans know or learn how to do this with regularity, but also can distinguish a winning argument from a losing one. Sometimes a repeat player’s job will be to push a certain position on an issue before the justices so that even if the attorney knows that an argument will ultimately fail, at least certain justices will be likely to focus on that argument in a dissent.

Two things that are potentially in an attorney’s control are whether to accept a case and how to argue a position. Attorneys may lose justices’ votes at either level and this is a necessary takeaway from looking at attorneys’ success across justices’ votes. Attorneys who win a high percentage of justices’ votes may take positions that are easier to win or may make more compelling arguments. There is little ability to distinguish between the two when observing at the vote level. When attorneys are successful with such regularity that they garner a high percentage of votes in more than two or three decisions, however, this shows an ability to forecast the court in a unique manner.

The graphs looking at attorneys start by isolating the attorneys with at least 35 votes across justices between 2013 and 2017. Twenty-five attorneys fit within this parameter.

Click to enlarge.

The names at the top of this list include some of the most prolific Supreme Court attorneys in the history of the court. The top three attorneys in terms of total votes for this period – Paul Clement, Neal Katyal and Seth Waxman – each served as the U.S. solicitor general. The next several attorneys on this list vary in their type of practice, from Supreme Court clinic attorney (Stanford’s) Jeffrey Fisher, to private big-law appellate practice attorney Kannon Shanmugam, to boutique-law appellate practice attorney Tom Goldstein, to state-government representative Scott Keller, who is now back in private practice.

Many repeat attorneys did not string together votes at the Supreme Court. This may be due to the fact that more complex cases have outcomes that are hard to predict. Attorneys might end up with a lower average favorable vote from the justices based on several close cases with one or two unanimous losses, just as attorneys may end up with higher averages through one or more unanimous victories. Attorneys’ percentages of favorable votes across justices are shown in the following graph.

Click to enlarge.

The attorney with the highest overall vote-for share was Adam Unikowsky at 86.27 percent. That is over 10 percent higher than the next most successful attorney across justices, Andrew Pincus, at 75.76 percent. Pincus is also more than 10 percent higher than the third most successful attorney, John Bursch, at 64.29 percent.

Thirteen, or just over half of these 25 top Supreme Court attorneys, averaged at least 50 percent favorable votes from the justices across their cases. The next graph shows votes for and against these attorneys’ positions by justice.

Click to enlarge.

As with the previous graph showing votes by justice, the above graph is organized in order of attorneys with the highest overall vote-for share across the justices. Unikowsky, with the highest overall percentage, did well across all justices, with more votes in his favor (and generally several more) from all justices except Gorsuch. Ginsburg, Kagan and Roberts voted for Unikowsky’s positions on all six occasions when he argued.

Pincus too did well across justices, with all justices voting for his positions more frequently or as frequently as they did against his positions. Alito and Kennedy supported Pincus’ positions in all four of his argued cases. Bursch had more success with some justices, including Kennedy, Roberts and Breyer, who each voted for his positions in four of his five arguments, than he had with others, including Sotomayor and Ginsburg, who voted against his positions in more cases than they voted for them. Clement, who argued many more cases than other attorneys on this list, had more votes supporting his positions than against them from each justice.

Some of the attorneys split the justices’ votes more ideologically. Jeffrey Fisher, for instance, received 11 votes in support and three votes against from Sotomayor and 10 votes in support and four votes against from Kagan on the left, while he received five votes in support and nine votes against from Thomas and four votes in support and 10 votes against from Roberts on the right.

Groups and firms

The most active firms for this period were often a product of multiple attorneys’ efforts, with generally one veteran advocate taking the majority of argument opportunities for the firm. The graph below shows firms with at least 50 votes from the justices for the 2013 through 2017 terms.

Click to enlarge.

WilmerHale had by far the most justice votes with 223. Seth Waxman argued the majority of these cases but had support from Mark Fleming, Danielle Spinelli and Thomas Saunders, among others. Hogan Lovells received the second most overall votes, with Neal Katyal arguing the majority of the cases, although other cases were argued by Catherine Stetson, Frederick Liu and Dominic Perella.

The next graph tracks the justices’ support percentages for each of these firms.

Click to enlarge.

Driven by Adam Unikowsky’s success in the court, Jenner and Block is the top-performing firm in terms of percentage of overall justices’ votes. Nine firms along with Jenner received at least a 50 percent vote-for share from the justices. These 10 firms are included in the next graph breaking down firms by justices’ votes.

Click to enlarge.

Support from particular justices is evident with many of the firms on this list. This appears to be the case more than it was with the individual nongovernmental attorneys. Jenner and Block was able to pull together fairly strong support across justices, however, with Justice Antonin Scalia the only justice voting against the firm’s positions more often than he voted for them and Thomas voting an equal number of times for and against the firm’s positions. Michigan’s solicitor general’s office was able to pull strong support, especially from the court’s right wing. Thomas, Alito and Scalia each voted unanimously for the Michigan office in all six cases its attorneys argued before the court. Sotomayor and Kagan were more frequently opposed to the office’s positions than they were in support of them.

The next set of firms, Bancroft and Orrick Harrington, pulled support across justices, with all justices voting for their positions more frequently than they voted against them. Going a bit deeper into this list we see more ideological divisiveness from the justices. The Republican-nominated justices, Thomas, Scalia, Roberts, Kennedy, Gorsuch and Alito, all strongly supported Gibson Dunn’s positions, while Sotomayor and Ginsburg each voted against Gibson’s positions at least twice as frequently as they voted for them. On the other end of the ideological spectrum, liberal justices Sotomayor, Kagan, Ginsburg and Breyer, along with Kennedy, showed strong support for Stanford Law School’s Supreme Court Litigation Clinic’s positions, while all more conservative justices aside from Kennedy and Alito voted against the clinic’s positions more frequently than they voted for them.

This post was originally published at Empirical SCOTUS.

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A trademark case with colorful language: Amy Howe and Mark Walsh talk through Iancu v. Brunetti

April 22, 2019 by admin Leave a Comment

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly reviews the latest SCOTUS news before providing deeper coverage with Mark Walsh of last week’s oral argument in Iancu v. Brunetti, a First Amendment challenge to the ban on registration of “immoral” or “scandalous” trademarks.

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