An in-depth study of lawyers who argue at the U.S. Supreme Court is revealing how a powerful and select group of litigators have risen to the top, in what the authors call “a tournament of champions.”
The authors — Mitu Gulati of the University of Virginia School of Law, Tracey E. George of Vanderbilt Law School and Albert H. Yoon of the University of Toronto Faculty of Law — joined forces to look at more than 50 years of data on who argued and won at the Supreme Court, trends and patterns within the data and what the litigators have in common. Their resulting paper, “The SCOTUS Tournament: Winning Isn’t Everything,” suggests that who argues in court can influence the final decision and the path of public policy.
Looking at data from 1970-2023, the authors found that the number of private-sector lawyers arguing has decreased over time, with fewer rookies and a group of 15 elite lawyers who have made 20 to 69 appearances outside of government roles. (Some have made many more arguments when including government jobs they once held in the U.S. Solicitor General’s Office or state attorney general roles.)
“The upshot of these tables [of data] is that lawyers with more experience win more. But not that much more than those with some, but less, experience,” the authors write. In today’s Supreme Court, superstar attorneys typically face other superstars, and rookies face rookies, affecting win rates for the elites. But win rates for the superstars can vary widely too, and the authors have theories about why.
Gulati, an expert in how to help countries in financial distress and the Warner-Booker Distinguished Professor of International Law, also has applied his analytical skills to federal court trends in recent years. A member of the American Academy of Arts and Sciences, he is the author of more than 200 articles and the host of the “Clauses & Controversies” podcast.
The three authors recently answered questions about their new paper.
What’s the story behind the origins of the “Supreme Court bar”?
There are two “Supreme Court bars.” First, there are all the people who are admitted to the Supreme Court bar officially. But that is both official and a bit misleading. That could include folks like us, who might have gone to watch arguments at the court and had a friend who sponsored them for admission. If that happens, it is fun and ceremonial because one’s name gets read out officially. But that doesn’t mean that these people will ever argue before the court. The real, but unofficial Supreme Court bar is the small group of lawyers who regularly appear before the Supreme Court. In our article, these are the stars and superstars of the court — the insiders who these days dominate the court.
In terms of how the three of us got interested in this topic, there has been a fair amount of press about SCOTUS litigators and the increased influence over time of “repeat players.” Each of us came to this topic differently. But one of those conversations that persuaded us to dig into this topic happened at UVA. It was a conversation with [former Supreme Court Litigation Clinic Director] Dan Ortiz (probably over wine) about the court, and Dan said a number of things in the conversation that got us thinking that there might be value to dig into the data more than has been done in the past. There is a lot of rhetoric out there, but the literature is thin on data.
Does it matter that the lawyers who argue at the Supreme Court most often are a small group? Shouldn’t we want those arguing the most pressing questions to have the most experience?
That’s an excellent question. In fact, some of the justices have said that they like seeing superstar lawyers regularly because these folks are so good at writing briefs and making arguments. Also, the justices, over time, likely learn which of these lawyers they can trust to report facts and prior doctrine accurately. And that, one might think plausibly, will result in better lawmaking by the judges.
The downside, though, is that the foregoing dynamic can result in the court becoming insular — with the same small set of favored lawyers being the ones whose cases and issues are chosen by the court again and again. One has to ask: Do we want national lawmaking at the top level to be a function of the favorite issues of a small set of super lawyers who all have similar backgrounds? And the situation gets worse if it is the case that these super lawyers are either too expensive for anyone except big corporations or certain powerful interest groups to hire. An article by Joan Biskupic of Reuters called it the “echo chamber” effect.
How has this development of a Supreme Court bar affected the trajectory of the court’s decisions (e.g., what is heard, what wins)?
You raise an important chicken-egg question that we have pondered but don’t yet have an answer. One narrative is that SCOTUS sets the agenda and the litigants respond — in part — through their choice of lawyer. An alternative narrative is that lawyers influence what cases SCOTUS grants certiorari and then what side wins. If it is the second narrative that is going on, and if better lawyers are disproportionately hired by big business or certain interest groups, then we might have reason to worry about the trajectory of the court. Our results, as yet, only scratch the surface on this question. But exploring this question is our long-term agenda.
Rookies still win plenty at the Supreme Court — why is that?
This is an intriguing result that you bring up. Superstars such as Kannon Shanmugam do win more, but rookies do win against them quite a bit — especially when rookies are on the petitioner side. It is not like Roger Federer at the top of his career against some unseeded player in the first round of Wimbledon. Federer won something like 95% of those matches. Instead, it is more like Federer playing some unseeded player who made it to the Wimbledon final — anyone who makes it to the final is going to be damn good. They are still more likely than not to lose, but they have a good shot.
In the data, we observe that rookies often pair up against other rookies, which produces a 50% win percentage for rookies.
What do you make of the most common matchups being rookie against rookie or superstar against superstar?
This surprised us. There is a theory out there that what is happening a lot at the high court these days is that big business is hiring superstar lawyers (superstars being those who have lots of appearances in front of SCOTUS), and those superstars are crushing the little guys who can only afford less-experienced lawyers. At least at first cut, we are not seeing that in the data. Superstars are mostly matched up against other superstars and rookies against rookies.
It could be that not all SCOTUS cases are created equally. One thing we haven’t done but could examine going forward is look at the pairings and the salience/prominence of the case. There’s an endogeneity issue — i.e., the lawyers on the case could influence its prominence — that is worth looking at.
You excluded lawyers arguing for state or federal governments. Is that fair to all the UVA Law grads who are superstar lawyers for the government? (Looking at you, Edwin Kneedler ’74.)
That’s funny. And [Deputy U.S. Solicitor General] Edwin Kneedler is a legend with spectacular SCOTUS appearance numbers. But being selected within a government office is a different matter than being selected by a private client. The latter is a market selection whereas the former might be more a function of other factors such as seniority or status (this is not to say that skill is not rewarded — the government also wants to win — but market dynamics are different from government office ones).
Lisa Blatt is winning 88.9% of her cases — the highest rate of the elite lawyers you tracked. Will she get a lot more calls after this paper?
Her numbers are off the charts. And she is amazing to see in action — she has a level of comfort and ease with the justices that is hard to imagine until one witnesses it. That said, I suspect her clients know about those numbers. But there is a more interesting point to your question. Some legendary lawyers, such as Carter Phillips of Sidley Austin, have lower win rates than she does. That might be because they are taking different types of cases. It may be, and we are speculating, that lawyers have different types of skills — like baseball pitchers. Maybe some are brilliant at closing out a game when their team is leading and others are good at turning losing situations into wins. If this is so, we’d expect to see rather different rates for those types of lawyers.
Can’t help notice, though, that Lisa Blatt, with the highest win rate, is the only woman in the superstar list. Why are there so few women is a question worth asking.
What surprised you most in your findings?
The most surprising result was the diminishing returns to experience — that is, that the impact of experience on win rates becomes stagnant over time. That graph has a steep slope initially — the returns to experience for the first few appearances are high. But then the curve flattens out. Indeed, it is almost completely flat after 8-10 appearances. That’s at odds with what we expected — which was that one’s likelihood of winning would keep increasing (maybe at a diminishing rate) as one got more and more experience.
Also, and maybe less surprising, the trend over time is stunning — even though we knew to expect to see an increase in repeat players from the 1970s to today. There was a time, in the ’70s for example, where most of the lawyers representing private clients at the court were lawyers who were appearing for the first and only time. In our imagination, they were the lawyers who brought their cases all the way from the trial court up to Washington. Today, the court is increasingly dominated by lawyers who specialize in appearing before it. And this group has the most elite of credentials in terms of where they went to law school, where they clerked, where they worked and so on.
The stakes at SCOTUS are high, so it is perhaps understandable that we see an elitification of the litigators — attorney general experience, SCOTUS clerk, fancy law school, etc. — especially as the court is hearing fewer and fewer cases. But there are some notable lawyers (e.g., Deepak Gupta) who are star litigators who did not come out of central casting.
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