Vol. 4 No. 3 (March, 1994) pp. 41-43

THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY by Kevin T. McGuire. Charlottesville: University Press of Virginia, 1993. 254 pp.

Reviewed by John P. Heinz, American Bar Foundation and Northwestern University.

This is a book about an elite within an elite within an elite. Lawyers are, of course, a relatively select group, even in America, even now. Though their numbers have burgeoned in the last two decades, and it sometimes seems as though every other person on the bus is a lawyer distributing business cards, the U.S. citizen's chance of becoming a lawyer is still only about one in 340. And though they are the subject of denigrating jokes, lawyers still occupy 60 percent of the seats in the U.S. Senate. Within the legal profession, lawyers who have ever had a case before the Supreme Court are an elite of the elite. There are about 800,000 lawyers in the U.S. today, but only 134,000 have been admitted to the bar of the Supreme Court since 1925, of whom some substantial, unknown number have surely died. (p. 30). Moreover, many of the lawyers who are admitted to practice before the Court (perhaps most) have never had a case there. Fewer than a tenth of all living lawyers, then, have ever put their names on papers filed in the Supreme Court. And of that tenth, very few appear in the Court with any regularity. The ones who do, referred to by McGuire as the "inner circle" of Supreme Court litigators, are thus an elite to the third power -- the elite of the elite of the elite.

The book is based on analysis of 327 responses to a mailed survey of lawyers who had cases in the Supreme Court during the 1986-87 term (the response rate was 48 percent) and on personal interviews with nineteen experienced members of the Supreme Court bar. McGuire also uses data gathered from published sources, including the U.S. REPORTS and the MARTINDALE-HUBBELL LAW DIRECTORY, as well as data derived from Caldeira and Wright's study of petitions for certiorari and from the Supreme Court data base developed by Harold Spaeth and others.

He finds that lawyers who are active in the Supreme Court tend to be white males, educated at elite law schools, who practice in large law firms or in state government, are located in large cities (especially, New York, Washington and Chicago), specialize in litigation, and are disproportionately likely to be Democrats (pp. 29-45). This last observation, however, is based on a comparison to numbers published in the AMERICAN BAR ASSOCIATION JOURNAL indicating that 54 percent of lawyers nationally are Republicans, which I believe to be of doubtful validity. So far as I know, there are no reliable data on the party affiliations of lawyers nationally. Somewhat surprisingly, McGuire also finds that lawyers in the 35 to 44 age group are considerably overrepresented among Supreme Court practitioners (almost half are in this category), while those age 65 and older are substantially underrepresented (Table 3.2, p. 35).

The data indicate that "Supreme Court lawyers are primarily counsel to business interests, serving only modest segments of the community of individuals..." (p. 60). Some non-commercial fields of law are, however, overrepresented among Supreme Court lawyers. As one might anticipate, these include criminal law and civil liberties (p. 62). McGuire presents a structural analysis of several characteristics of the lawyers -- the nature of their clients, the fields in which they specialize, the amount of time that they spend in various sorts of courts. He finds a two-dimensional structure in which one of the dimensions pretty clearly represents a division between fields that serve businesses and those that deal with the problems of individuals (Figure 4.1, p. 65). Social opposites are found on opposite sides of the space -- for example, lawyers who represent major corporations are diametrically opposed to those who practice criminal law and those who represent blue collar workers. McGuire concludes:

[L]awyers who serve large institutional interests are part of the active cohort of counsel, while those whose practice is oriented toward smaller individual interests remain on the periphery. Lawyers

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who serve major corporations or represent labor unions are more often before the Court than, say, counsel to small businesses or to blue-collar workers (pp. 72-73).

The point is summarized a few pages later in the observation that "the lawyers within the inner circle are counsel to the rich and powerful litigants" (p. 76).

The main thesis of the book is this:

[T]here is an elite circle of lawyers -- principal players within the Washington community -- who serve as gatekeepers to the Court (p. 5).

These lawyers are fairly well integrated: many practice in Washington, and often they have served as clerks to the justices or worked in the Office of the Solicitor General. These ties are further reinforced by their continued participation in Supreme Court politics. Thus, the sociometric structure of the experienced elite is relatively closed to outsiders; the boundaries of that inner circle are not easily crossed (p. 11).

The basic division is clear. Close to the Court stand the experienced and influential gatekeepers, that small inner circle of elites tied to the Washington community. Beyond them exists the larger outer circle of relatively inexperienced litigators, the fluid cast of counselors who remain outside of the power politics of the Supreme Court (pp. 26-27).

In support of this thesis, the book presents data drawn from the survey of lawyers active during the 1986-87 term of the Court. The 327 respondents to the survey were each asked to name up to five "expert" Supreme Court litigators. This question produced a list of 166 different practitioners (p. 140). It is unclear exactly why so few names were elicited -- this might, of course, be attributable either to non-responses or to congruence in the persons named. We are told that "14.7 percent [of the respondents] named but one lawyer and 32.7 percent named as many as three, [while] only 4.6 percent nominated five Supreme Court notables" (p. 147). Since 32.7 percent of 327 respondents (i.e., 107), each of whom named three lawyers, would produce 321 nominations -- even without the nominations of respondents who named only one or two -- this would suggest that there must have been a high degree of congruence in order to get the list down to 166 names. But, as to congruence, we are told only that "of those lawyers who were named as Supreme Court experts, some were nominated only once; others were mentioned several times," and that eleven lawyers were named four or more times (p. 148). Apart from this, no formal analysis is reported of the extent to which the nominations converged upon a particular set of names, or of the nature of the constituencies of the notables. Moreover, four nominations from among 327 respondents would seem to be something less than an overwhelming indication of centrality or prominence.

The respondents were also asked to name lawyers they had contacted for advice when they were preparing their cases in the Supreme Court. Only a quarter of the respondents said that they had contacted others, and only 28 percent of those contacted had been contacted by more than one respondent (p. 141). Does this indicate a high degree of interaction among lawyers active in the Supreme Court?

There is, of course, likely to be contact among at least some Supreme Court lawyers. One of the lawyers who was personally interviewed said:

There is a group of people who really like the Supreme Court, follow it closely, litigate before it, write about it, live in Washington, go to parties at the Supreme Court. I wouldn't call it a Supreme Court bar. I guess it's too undignified to call them Supreme Court groupies, but it falls somewhere between the two (p. 144).

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The book concludes:

In sum, the concept of the Supreme Court bar as a community of lawyers has considerable utility. The elite circle of the bar, in particular, bears many of the marks of a professional community (p. 145).

I doubt it. And I think that the book presents little hard evidence that this is the case.

The principal problem with the thesis that the members of the inner circle serve as "gatekeepers," controlling access to the Court, is the author's own observation that "most lawyers who end up arguing before the Court have been involved in a case from the earliest stages of litigation" (p. 79). Indeed, 67.7 percent of the respondents who participated in cases in the 1986-87 term entered their cases in the trial court or in an administrative proceeding -- i.e., before the case reached the appellate level (Table 5.1, p. 80). Only 8.6 percent of them entered at the Supreme Court stage. Thus, it is not the case that lawyers from the provinces handle these cases in the initial stages, and that the big guns are then called in when the case reaches the highest court -- nor that especially experienced and influential counsel are employed in order to get the case through the gate to that Court. Instead, the lawyers who argue cases in the Supreme Court are usually the same lawyers who handled the cases from the beginning. Where, then, is the gatekeeping?

Experienced Supreme Court lawyers do appear to enjoy a greater rate of success in their petitions for review by the Court. McGuire finds that 22 percent of the cases brought by experienced lawyers were granted review, as compared to 6 percent of cases in which no experienced counsel were involved (p. 181). This could be because the experienced practitioners are more skillful or have greater credibility with the Court, or it might be because the experienced lawyers do not waste their time on cases that are clearly long shots. That is, they might prefer to devote their effort to cases that have some reasonable chance of being heard by the Court. McGuire recognizes this possibility, and therefore constructs a probit model that controls for several of the variables that are most likely to affect grants of certiorari. In that model, he finds that the experience factor makes a significant contribution to the explanation of the Court's selection of cases (Table 8.1, p. 182).

If experience is of value to lawyers (and their clients) in securing review of cases, is it also of value in winning the decision on the merits? McGuire's research suggests that it is. Since the Supreme Court is more likely to grant review to a case if it intends to reverse the decision below, the overall success rate of petitioners in the Court is 65 percent. If the lawyers on the petitioner's side are more experienced than those on the respondent's side, however, this success rate increases by ten percentage points; if the respondent's lawyers are more experienced, on the other hand, the petitioner's success decreases to ten points below the average (Table 8.3, p. 192). This is pretty persuasive evidence.

Thus, Supreme Court experience does appear to enhance Supreme Court success, but does this mean that the experienced practitioners act as "gatekeepers"? McGuire's findings indicate that two-thirds of all Supreme Court cases are handled by the lawyers who had the cases from the beginning -- these lawyers (and their clients) were not kept on the other side of the gate. As McGuire acknowledges in his conclusion:

Although Supreme Court litigation does tend to attract certain kinds of counsel, the doors of the Court are not wholly closed to most litigators (p. 204).

Nevertheless, this is a valuable book. It will be of interest both to political scientists who focus on the Supreme Court and to students of the legal profession. The book is easy to read and well-organized; with appropriate guidance, it could be assigned to undergraduates, as well as to graduate students.