Who Wins In the Supreme Court?

What does it mean to win a case in the Supreme Court? A perfectly good explanation is looking at the party that prevails on the merits. But winning on the merits encapsulates only a small portion of the fruits of a Supreme Court litigator’s labor. In a recent article I wrote entitled, Who Wins In the Supreme Court? An Examination of Attorney and Law Firm Influence,[1] I argue that the most significant gains are made in shaping the language of the law. How does this work? A clear example I provide in the paper comes from Steiner v. Mitchell, 350 U.S. 247 (1956). The opinion written by Chief Justice Warren discusses the risk of lead poisoning that can result from factory work in a battery plant stating, “The risk is ‘very great’ and even exists outside the plant because the lead dust and lead fumes which are prevalent in the plant attach themselves to the skin, clothing and hair of the employees. Even the families of battery workers may be placed in some danger if lead particles are brought home in the workers’ clothing or shoes.” The only two sources of this exact language are the opinion and the respondent’s brief (which predates the opinion chronologically).[2] I argue that by accepting this portrayal of the facts, the Court not only highlights the necessity of the workers’ safety procedures, but perhaps more importantly extends the class of potentially harmed future plaintiffs to victims’ families.

The notion that studying the impact of Supreme Court opinion language is quite valuable is not my assertion alone. The words of the justices also underscore the importance of the decision language. Justice Antonin Scalia hammered home this point during a 2010 interview when he said, “the only important part about an appellate case is not who wins or loses; it’s not, you know, affirmed or reversed. The important part is the opinion. And if you affirm or reverse for the wrong reason, you’ve done everything wrong…if you haven’t made clear what your holding is, instead of reducing litigation, instead of making life simpler for courts and lawyers below you, you’ve complicated it.”[3]

In my paper I look at the attorneys and law firms that have had the greatest influence on the language of the law from the 1946 through 2013 Supreme Court term. I do this by looking at the percentage of opinion language that is shared with the attorney or the law firm’s merits brief. This article is one of the first to look at the success of individual attorneys and firms through this lens. The findings build on existing scholarship although they pinpoint the individual actors involved on a much grander scale. For instance, studies show that briefs from the Office of the Solicitor General (O.S.G.) have the highest levels of incorporation in Supreme Court opinions.[4] By examining Solicitors General (SGs) over time I show the Court shared almost seven percent more language per opinion on average with the most successful SG compared to less successful SGs in this regard.

The paper also shows how experience litigating in the Supreme Court makes a difference on several levels. I analyze the quality of each brief using seven measures of writing quality provided by linguistic software and I find that the most experienced attorneys perform above the mean in important measures of writing quality almost across the board. These experienced attorneys, often referred to as the modern “Supreme Court Bar” (not to be confused with members of the Bar of the Supreme Court) are also much more likely than others to have their language incorporated in Supreme Court opinions. To provide an example, two of the most experienced Supreme Court litigators, Carter Phillips and John Roberts (when he litigated at Hogan and Hartson prior to his appointment as Chief Justice) had five to seven percent more language adopted from their briefs by the Court on average than similarly situated litigators.

Aside from looking at attorneys, I also examine law firm success. These results show that briefs by attorneys from the most experienced Supreme Court firms tend to have greater than average language incorporation in Supreme Court opinions. The writing quality from these lawyers also tends to be of a higher than average quality (for Supreme Court practitioners). Somewhat surprisingly, however, the most successful firms do not perfectly map onto the most successful attorneys. Both Hogan and Hartson and Sidley Austin make their way onto the list of most experienced Supreme Court law firms, which can primarily be attributed to the many cases briefed by John Roberts and Carter Phillips. Even so, the top two most experienced Supreme Court law firms ranked in terms of brief language incorporated were other large firms’ practices. While the variation between the average language incorporation between top law firms is much smaller than the variation between top attorneys, the top law firms are, in a sense, telling. This measure shows that the group of attorneys in a firm’s Supreme Court practice may make a greater difference in influencing the language of Supreme Court opinions in the aggregate than individual attorneys.

What can we take away from this work? First, experience litigating in and writing for the Supreme Court matters. It matters in terms of the quality of brief writing and also in terms of success in translating language from briefs into the Court’s opinion language. It also informs us that an attorney’s credibility makes a difference. Credibility may stem from an institutional relationship with the Court as occurs with the federal government and its agent the SG. It also stems from continuous Supreme Court practice where attorneys learn nuances about the justices and the justices form opinions of these repeat litigators. Finally, it shows that by comparing the textual inputs into Supreme Court opinions with the opinions themselves, we have an additional measure of attorney and law firm success that extends beyond wins and losses.

ENDNOTES

[1] The complete paper is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2643826

[2] To be fair a large amount of language overlap comes in the form of less consequential verbiage such as shared citations to case law or statutes.

[3] Bryan A. Garner, Justice Antonin Scalia, 13 The Scribes Journal of Legal Writing 51, 54 (2010).

[4] E.g. Ryan C. Black & Ryan J. Owens, THE SOLICITOR GENERAL AND THE UNITED STATES SUPREME COURT (2012).

This post comes to us from Adam Feldman, who has a J.D. from Boalt Hall School of Law 2008 and is a Doctoral Candidate in Political Science and International Relations at the University of Southern California. The post represents a detour from our usual private law subjects in the interests of bringing new, interesting methods in legal research to our readers. The post is based on Mr. Feldman’s paper, which is entitled “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence” and available here.