ACSBlog: The Blog of the American Constitution Society

Tony Mauro of the Legal Times reports on a study by Georgetown University Law Professor Richard Lazarus that suggests veteran advocates sway the Supreme Court. Moreover, the role of those veteran advocates, according to Lazarus, may be directly connected to the "Court's widely noted new pro-business tilt."

Clients willing to plunk down $100,000 or more for a veteran advocate to petition the Court are elbowing aside the civil rights, civil liberties, and labor groups that once helped set the Court’s agenda, the study suggests. Recent breakthrough victories for business in tort, antitrust, and other areas of the law can’t be explained totally by the Court’s overall conservative majority, Lazarus says. The elite Supreme Court Bar has played a pivotal role, he asserts.

Mauro explains Lazarus' reasoning:

The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. . . . Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the “inner circle” of the Supreme Court Bar.

Not all share Lazarus' conclusions.

“Effective advocacy can impact the Court, but the heightened success of business has been in the works for 25 years,” says Latham & Watkins’ Maureen Mahoney, who argued four cases last term. “And you’ve got seven Republican appointees on this Court who have a high interest in these cases.”

Akin Gump Strauss Hauer & Feld’s Thomas Goldstein makes a similar point. “We advocates tend to think it’s all about the lawyering. But the most important trend by far is the increasing conservatism and pro-business orientation of the justices themselves.”