Comments On "Is the Cert Process Fully Adversarial?"

On Monday, I wondered whether the Supreme Court's apparent decision to auto-relist cert petitions before granting them might, counterintuitively, have something to do with the rise of the Supreme Court bar.  The post prompted some noteworthy comments from members of the Supreme Court bar, and I'd like to draw attention to those comments here.

First, a recap.  My original post acknowledged that the rise of the Supreme Court bar has increased awareness of the need to flag so-called "vehicle problems," that is, reasons why a particular case might prevent or complicate the Court's resolution of the question presented.  But, I suggested, the rise of a prestigious, exclusive Supreme Court bar might also undermine adversity at the cert stage.  Sophisticated counsel sometimes advise acquiescence in cert as part of a litigation strategy; in those cases, both parties actually agree on the desirability of Supreme Court review.  In addition, the counsel that prevailed below might have a personal interest in arguing before the Court.  In theory, this concern could apply to leading Supreme Court advocates maintaining their practice, to novices trying to have their first big day in the big Court, and to dedicated clinics that exist to do Supreme Court litigation.  These personal interests could even have unconscious effects.  So, much as class action counsel might be subjected to a little extra judicial scrutiny in light of their personal interest in settlement, lawyering at the cert stage might benefit from a judicial double-check.  Hence, I speculated, the new auto-relist policy.

My post prompted this comment from Tom Goldstein:

For what it’s worth, I think that the development of the Bar probably points in both directions, but not for reasons related to the lawyers’ mixed incentives. More petitions are being done by experienced practitioners who are skilled at hiding problems with cases. On the other hand, more briefs in opposition are being done by the same kind of lawyers who are skilled at finding problems and raising doubts about whether to grant cert. Also, the contrary premise of the post is that the Court is DIGging materially more cases. Anecdotally, I don’t think that’s true. In terms of its reasoning, I’m not aware of a case where someone has said it looked like the opposition wasn’t full throated. But I can say from my experience that a lawyer representing the respondent is frequently more enthusiastic about cert. being granted and getting his/her first opportunity to argue than an attorney for whom it would be one of many. I don’t think it affects how they brief the case in either event, though.

And my post, plus Tom's comment, prompted this additional set of remarks from Roy Englert:

I largely agree with Tom, but would go further. I do not think the best cert. petitions hide vehicle problems. Rather, I think the very best cert. petitions anticipate, acknowledge, and offer answers to any major vehicle problems. And I do not think the leading members of the Supreme Court bar try — consciously or unconsciously — to do anything other than maximize the chance of a cert. denial when they file briefs in opposition, save in cases like Aereo where the client actually wants Supreme Court review. As a result, I do not think the rise of the Supreme Court bar cuts in both directions. I think it cuts heavily in the opposite direction from Richard’s hypothesis.

I will acknowledge one exception, but it has nothing to do with counsel’s motivation. I do think that the Court itself seeks cases in which the presentation on both sides will be strong. Therefore, when the brief in opposition is really good — regardless of authorship — but the issue is certworthy, the Court (somewhat perversely) may take the case with the good BIO rather than a different case presenting the same issue with a weak BIO.

I'm grateful to these commentators for sharing their very interesting and thoughtful views.

The above is cross-posted from Re's Judicata.