stephensGuest Commentary

Jay B. Stephens, Of Counsel, Kirkland & Ellis LLP and Chairman, WLF Legal Policy Advisory Board

The US Supreme Court is one of America’s most selective governmental entities. Over the past century, Congress removed most direct-appeal rights to the Court, leaving the vast majority of litigants in a position of having to seek the votes of four justices through the discretionary certiorari process. With the Court currently accepting only between 70 and 80 cases per term, the odds of a grant of certiorari  for cases where an attorney submits the petition are now between 4% and 6%.

One factor that most appellate advocates believe increases the odds of the Court granting certiorari is the filing of high-quality, influential amicus curiae (“friend of the court”) briefs urging the justices to vote for review. Over the past 40 years, Washington Legal Foundation has established itself as an extremely effective cert-stage advocate in cases that affect the free-enterprise system and economic liberties. A recently published analysis of lawyers’ and organizations’ success at the Supreme Court’s cert stage—both as Counsel of Record for a review-seeking party and as amicus—demonstrates that effectiveness.

With the Court now finished accepting cases for its October Term 2016 docket, editor Adam Feldman of Empirical SCOTUS conducted his annual review of which lawyers and organizations found the most success seeking certiorari. WLF filed amicus briefs at the cert stage in six cases the Court granted, putting us at the top of the list. Those six grants, Feldman wrote, meant that WLF was “far more successful … than any of the other participating interest groups by quite a large margin.”

WLF filed 15  amicus briefs urging that certiorari petitions be granted and heard on the merits during October Term 2016.  Of the 14 petitions acted on by the Court (one case settled before the Court could act), the Court granted review in six of them—a phenomenal 43% acceptance rate. That is especially remarkable when one considers that there have only been eight justices voting on certiorari petitions. That means for half of the October Term 2015 and the entire October Term 2016, there was one fewer justice from which to obtain a cert vote.

The nature of the cases in which the Court granted cert at WLF’s urging is another factor to consider. Only a relatively small portion of the Court’s docket of 70-80 cases each term fall into the business-regulation or civil-litigation category. Those are the very types of cases in which WLF routinely invests its limited resources in drafting and filing amicus briefs. The six cases granted with WLF’s amicus support implicate issues of significance to free enterprise such as personal jurisdiction, venue in patent suits, and appeals in class-action suits.

Also of note from the survey is that of the non-WLF attorneys listed as being successfully involved in at least two cert grants for October Term 2016, 12 of them—well over half—have donated their expertise and time as a writer of a WLF publication, as a guest commentary author for the WLF Legal Pulse blog, as a speaker at a WLF program, or as the author of a WLF amicus brief.

The results of the Empirical SCOTUS survey certainly helps WLF get its 40th year of public-interest advocacy off to a great start.