Solicitor General’s Office and former Supreme Court law clerks. They match, and sometimes even best the Solicitor General’s Office in the depth and breadth of their advocacy expertise. Year after year, they now dominate the cases the Court decides to hear at the jurisdictional stage and disproportionately employ the attorneys who file the briefs and present oral argument on the merits.
Nor does the significant pro bono work many of those same law firms commendably engage in effectively close the advocacy gap. Such work is necessarily both secondary to their need to earn profits and limited by the professional requirement that they avoid any formal conflicts of interests with their paying clients as well as by the practical need to avoid taking on pro bono causes that might upset their business clients that pay full freight for legal representation. Consequently, it is the business interests that can afford to pay their high billable rates that have greatest access to their expertise.
To be sure, a few public interest organizations, such as the NAACP Legal Defense Fund, Public Citizen, and the American Civil Liberties Union, can fairly boast of impressive Supreme Court expertise. Their representation, however, is as a practical matter still very limited in its reach at the Court’s jurisdictional stage and many parties, such as non-white-collar defendants in federal and state criminal defendants, lack the distinct advantage of their assistance. As a result, potentially successful cert petitions representing those parties are either not filed at all or, if filed, poorly executed. And petitions filed by government prosecutors drafted by expert Supreme Court counsel in the U.S. Solicitor General’s Office, or their counterparts in many States, are granted, even though an effective opposition to the petition might well have resulted in a denial of review instead.
The Proposed Addition of a Career Staff Attorney Office at the Court
My reform proposal for the Commission’s consideration is a modest one that does not purport to address the more serious and pervasive underlying problem of the profound lack of effective legal representation of the nation’s most vulnerable populations. Consistent with the Commission’s charge, my proposal is instead narrowly aimed at improving the internal decisionmaking process that the Supreme Court uses to identify the cases it determines warrant its plenary review. Although a significant problem, it is also one that I believe can be effectively addressed in a relatively simple way and at relatively little cost.
The Court should hire a staff of career attorneys whose exclusive responsibility would be to provide the Court with assistance in deciding which cases warrant the Court’s review. The
