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Tuesday, December 09, 2014


“It’s the nature of the business”

by Tom Sullivan

And all this time I thought regulatory capture of the Supreme Court just had to do with the sitting justices. Reuters' lengthy, 3-part series on the attorneys who appear most frequently before the Supreme Court is titled, "The Echo Chamber." Really, though, these lawyers need their own "Lifestyles of" show. (An overwhelmingly white-male cast, of course.)

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 represent less than 1 percent of lawyers who file appeals to the Supreme Court, yet appear in 43 percent of the cases the court heard from 2004 through 2012. Fifty-one of the 66 represent firms whose work is primarily for corporations. “It’s the nature of the business,” Ashley Parrish, a partner at King & Spalding told reporters. Which is why firms avoid individuals' cases against current or prospective corporate clients. Pro bono First Amendment and criminal cases that don't conflict with moneyed clients' interests are the exception.

Michael Luttig is general counsel for Boeing Co.:

“It has become a guild, a narrow group of elite justices and elite counsel talking to each other,” Luttig said. The court and its bar have grown “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”

We've come a long way from first principles and our rustic notions of citizen legislators. Why should we expect any different for our courts? Specialization is the name of the game, and law firms that hope to play attract elite, former law clerks to their Supreme Court practices, attorneys who know sitting justices personally. Reuters explains that "Supreme Court clerks are so prized that the market-rate signing bonus is $300,000."

Which is not to say that these attorneys are just mercenaries.

“It’s not that there aren’t lawyers at these large firms who aren’t public-spirit minded and don’t want to do these [individual] cases. It’s that their business model won’t allow it,” said Joseph Sellers, a lawyer for the mid-sized firm Cohen Milstein, who argued against Wal-Mart at the Supreme Court.

Nor is it to say that these elite law firms don't have principles.

Law firms have different goals than advocacy groups – profit, for one – but their Supreme Court practices often share an ideological interest in shaping the law for clients. For firms that are most active before the high court, those clients are more often than not corporations.


“We hired people with commitment, belief and purity of purpose,” said Claffee, who can quote by heart phrases from Powell’s 1971 memo. “It’s all part of strengthening our brand and our substance.”

That would be the memo from soon-to-be Justice Lewis F. Powell, Jr. to the U.S. Chamber of Commerce urging them (among other things) to exploit the judiciary to advance the interests of business.

In the wake of Citizens United v. Federal Election Commission (2010), corporate monies flooded electoral politics nationwide from city hall to state legislatures to congressional and presidential elections. And the Sunlight Foundation estimates (2012): "For every one member of Congress, the influence industry produces about $12.5 million in lobbying." Meanwhile, the America Legislative Exchange Council (ALEC) crafts corporate-written bills that get filed verbatim in state capitals — the analogue of what lobbyists do in Washington. "The Echo Chamber" simply confirms the corporate capture of the judicial branch as well. As if we didn't already see that in SCOTUS decisions.

Getting back to first principles, what vestigial meaning has the constitutional doctrine of separation of powers when it is all the same power?