One threshold note. The Court granted review yesterday (Monday 10/29) in only two cases: the Exxon Valdez damages case and the Allied Engine qui tam case. The petitioners in both cases were the business defendants and, consistent with my thesis, petitioner’s counsel of record in the first case was Walter Dellinger and the second case was Ted Olson.
This is not a question of liberal and conservative lawyers. This is simply excellent work performed by expert Supreme Court advocates on behalf of their business clients, knowing how best to pitch their cases to the Justices (and their law clerks). Knowing how to use amici at the cert stage, Dellinger secured the filing of 13 amicus briefs in support of the petition, filed by other leading members of the Bar. I have not reviewed the opps filed in the two cases, but I would expect that if less skilled lawyers had drafted the petition in each case and Olson and Dellinger had been representing the respondents in each (rather than the petitioners), they might well have persuaded the Court to deny review.
One comment pointed out that the advocacy gap is greater in many lower courts. I don’t deny that. My point only is that the precedential impact of the gap in the U.S. Supreme Court is clearly greater and, for that reason, even small gaps can have a very large practical effect. And the advocacy gap is not small before the High Court, although as the article explains there is reason to believe it may be temporary in some areas of the law.
Several comments wondered why law firms generally don’t handle environmental cases and questioned whether the Court’s ruling in MA v. EPA undermines my thesis. As a general matter, the top Supreme Court litigators won’t take on environmental pollution control case on behalf of an environmental plaintiff. They will do lots of classic criminal pro bono work, but not the kinds of classic pollution control cases that might upset the business community that serves as their client base for possible high-paying cases before the Court. You likewise won’t see hardly any of those firms on the plaintiff’s side of a torts case.
MA v. EPA certainly provides a counter-example in part to the trend I describe in the Court’s docket. But, at the end of the day, its aberrational nature underscores how remarkable that trend in fact is. When the Court granted review in MA v. EPA and a few weeks earlier in ED v. Duke Energy, those two cases represented the first time that the Court had granted review on behalf of environmentalists over the federal govt’s opposition since Sierra Club v. Morton in 1971. That’s a long time.
One comment points out that advocacy alone cannot explain the NEPA cases and another argues that perhaps the environmentalists simply lost because their cases were weak on the merits. With regard to the first, clearly the makeup of the Court plays a role. If the Court had 9 Justice Douglases, environmentalists would not have lost any of those cases. My point here is just that absent such an extreme Court, advocacy makes a big difference and not of course that it is the only significant factor.
Addressing the second point, it was the SG’s Office skill as advocates that prompted them to be selective in picking the NEPA cases to take up to the Court and in choosing what legal issues to raise and not to raise. There were many lower court NEPA losses the SG’s Office did not take up even though their client agencies sought SCT review. And, in many of the NEPA cases the SG took up, the SG was careful to abandon losing arguments pressed in the lower courts. The best advocates know how to pick their cases and their arguments. That is how one can turn losers into winners.