Orrick Touts ‘Constellation Model’ for SCOTUS Arguments


•Supreme Court arguments dominated by small group of elite lawyers
•But Orrick sent four different lawyers to high court this term


One law firm sent four attorneys to the lectern during the U.S. Supreme Court’s recently completed term—and they all won.

Many firms hand all Supreme Court arguments to one attorney, but Orrick, Herrington & Sutcliffe LLP spreads arguments among lawyers.

A small group of elite appellate lawyers dominates high court arguments, leaving little room for new talent to break in. Supreme Court “experts” argued 56 percent of the cases at the high court this term, according to statistics by SCOTUSblog. In recent terms, it’s been as high as 74 percent.

Former Solicitor General Paul Clement, of Kirkland & Ellis LLP, Washington, alone argued 10 percent of all the Supreme Court’s cases this term.

But a handful of firms, including Clement’s, sent more than one attorney to the podium at the Supreme Court this term.

Orrick had five cases up before the justices this term. Only Supreme Court regular E. Joshua Rosenkranz argued more than one—he argued two.

The “constellation model”—where there are several bright stars rather than all appellate attorneys in service to one—is good for business and helps build a better brand, Rosenkranz told Bloomberg Law.

Because the court heard so few cases this term, there were limited opportunities for other attorneys in Kirkland’s appellate group to get arguments, Clement told Bloomberg Law.

The court only issued 59 signed opinions this term, the fewest since 1864, according to Adam Feldman of Empirical SCOTUS. The court also heard two cases that weren’t disposed of on the merits.

Getting Before the Court

Orrick sent the most attorneys to argue at the Supreme Court this term, but several were just behind with three.

Kirkland sent three attorneys to cover eight cases. Clement argued six himself. Kirkland partner Erin E. Murphy, though, argued one of the term’s most closely watched cases about partisan gerrymandering.

Jones Day and Jenner & Block LLP both sent three attorneys to argue four cases. Gibson, Dunn & Crutcher LLP and Mayer Brown did it with just three cases each.

Boies Schiller Flexner LLP and Goodwin Procter LLP each sent different attorneys to argue the firm’s two cases.

But a number of firms sent just one attorney to cover all their firm’s cases.

Of the firms that argued more than one case before the justices, Goldstein & Russell P.C.; Hogan Lovells US LLP; Kellogg, Hansen, Todd, Figel & Frederick PLLC; Latham & Watkins LLP; Williams & Connolly LLP; and Stris & Maher LLP all had the same attorney argue all their cases.

The ability to pass off cases to more junior partners could be affected by whether the firm has taken the case pro bono, or if the argument will be on behalf of a paying client.

Firms are often hesitant to discuss fee arrangements but immigration and criminal cases are more likely to be taken on pro bono and argued by a less experienced advocate; cases on behalf of companies, like many of those argued by Clement, are likely to be those of paying clients.

Other ‘High-Stakes’ Appeals

Just because attorneys aren’t arguing at the Supreme Court doesn’t mean they aren’t getting experience.

“Our appellate practice is by no means limited to the Supreme Court, and members of our appellate team routinely argue circuit appeals and dispositive motions in trial court,” Clement said.

“For many lawyers, the opportunity for a first appellate argument comes in a pro bono case, and then that experience paves the way for additional opportunities,” he said.

Former Acting Solicitor General Neal Katyal, of Hogan Lovells US LLP, Washington, agreed.

Hogan lawyers have had four different lawyers argue before the Court in the last few years, Katyal said. This term, though, Katyal argued all three cases that his firm had before the justices.

But “our associates argued many high-stakes appeals,” including arguing the travel ban appeals in the U.S. Court of Appeals for the Ninth Circuit, and the sanctuary cities case for Philadelphia. One associate, Sean Marotta, argued four appeals in four weeks, Katyal said.

Good For Business

Getting other attorneys high court experience is good for the firm, Rosenkranz said. That’s why he incorporated that into his strategy when he started Orrick’s appellate practice eight years ago.

Once an attorney argues at the Supreme Court, the attorney is viewed as being in the big league, Rosenkranz said. That helps attract clients, he said.

Arguing fewer cases also means you do a better job for the client, Rosenkranz said.

Limiting the number of cases that you argue allows one to really run the briefing and master the facts, he said.

That’s why he’s committed to arguing only ten cases a year in the Supreme Court and other appellate courts, Rosenkranz said. The other arguments go to other attorneys.

Good Results

Rosenkranz turned three high court cases over to other attorneys this term, and all got good results for the client, he said.

Eric Shumsky argued and won 6-3 in a sentencing case, Hughes v. United States. Robert M. Loeb argued and won a unanimous victory in Byrd v. United States, a Fourth Amendment case.

And Kelsi B. Corkran got a Fifth Amendment self incrimination case, City of Hays v. Vogt, dismissed after the justices decided following oral arguments that it should not have agreed to hear the case. That’s what Orrick had told the justices when trying to convince them not to take it up initially.

Rosenkranz argued and squeaked out a narrow victory in Sessions v. Dimaya, a crimmigration case.

The other case Rosenkranz argued was an internet privacy case, Microsoft v. United States. Congress changed the law under review after oral arguments took place, so the Supreme Court ordered that lower court dismiss the suit—a win for Microsoft.

Homogeneity Problem

Orrick now has several Supreme Court specialists, which is impressive because so few attorneys get most of the oral arguments at the high court.

The concentration of arguments among a few attorneys has generated some public outcry, but the justices themselves have applauded the development, Shumsky told Bloomberg Law.

Justices Sonia Sotomayor and Elena Kagan have talked about how specialized SCOTUS advocates actually help the justices do their work because they know the kinds of information that the justices need to know, Shumsky said.

Specialization isn’t really the problem, homogeneity is, Shumsky said.

That group of specialized attorneys isn’t very diverse, he said.

Take gender, for example.

One hundred and thirteen attorneys appeared in front of the justices 168 times this term, according to SCOTUSblog. Only 19 of those appearances were by women.

And most of the women appearing before the justices were government lawyers, Corkran said. Just four women in private practice argued this term, Corkran said, including her and Murphy.

The dearth of women advocates isn’t based on merit, Corkran said. So there’s a lot of talent going untapped, she said.