As usual, the U.S. Supreme Court has saved the big stuff for the last week of its term. Among the 11 cases the justices have yet to decide are the four that garnered the most public attention this year: Fisher v. University of Texas, which addresses affirmative action; the voting rights case Shelby County v. Holder; and the two gay marriage cases, Hollingsworth v. Perry, which stems from California’s ballot-proposition ban on gay marriage, and U.S. v. Windsor, which challenges the federal Defense of Marriage Act. You can reliably expect frenzied coverage at the court until rulings come down in all four of these hot-button cases.
With all eyes on the Supreme Court, I wanted to revisit an issue I mentioned glancingly in a post earlier this week: Do lawyers who write briefs opposing Supreme Court view have an ethical conflict if they’re secretly hoping for a chance to argue before the justices? I posed the question as an afterthought in a story about experienced Supreme Court litigators taking over certiorari briefing in a $350,000 dispute between a union pension fund and a landscaping company when it became clear that the otherwise undistinguished case had a shot at Supreme Court review. (And, indeed, the court granted certiorari on Monday.) A Twitter reader very thoughtfully directed me to a 2012 article in the Harvard Journal of Law & Public Policy that attempts to answer the question with some hard data.
In “The Ethics of Opposing Certiorari Before the SupremeCourt,” then Stanford Law student Aaron Tang posited the theory that as the Supreme Court’s docket shrinks and oral arguments become increasingly restricted to an elite appellate bar, “the value associated with each rare opportunity to argue before the court continues to rise.” One way to get before the justices is to prevail with a cert petition for clients seeking review of adverse rulings, Tang said, but the other, of course, is to write an unsuccessful cert opposition brief. “Attorneys who lose at the opposition stage might nevertheless enjoy a personal ‘win’ in the form of an opportunity to argue at the Supreme Court,” he wrote. “As a result, there is an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all.”
Tang, who wrote the paper in law school, then spent a year at the Supreme Court boutique Goldstein & Russell and is now a clerk for Judge Harvie Wilkinson on the 4th Circuit Court of Appeals, told me he became interested in the ethical dilemma of cert opposition briefs from hearing his law professors tell stories about cases in which they suspected opposition brief writers of “tanking” arguments in order to get before the court. Tang tried to come up with a way of quantifying anecdotal evidence of the phenomenon and hit on the idea of conducting a short, anonymous survey of lawyers with significant Supreme Court experience.
He sent the six-question survey to 273 lawyers and received responses from 116, or 42.5 percent. The first question asked respondents to quantify their Supreme Court experience and the last two were open-ended responses. Substantive data came from the three multiple-choice questions Tang asked: In a case with a strong chance of receiving Supreme Court review, do you perceive a conflict of interest between a lawyer’s duty to zealously represent the client and her personal desire to argue before the court if she has never made a Supreme Court appearance? What if the lawyer writing the opposition brief regularly appears before the court? And finally, have you encountered a situation in which you believe a client received less-than-zealous representation from a lawyer motivated in some part by the desire to argue before the justices? (I’ve paraphrased the questions slightly.)