Page:EO 14023 Commission Final Report.pdf/270

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In other words, the entire ecosystem surrounding the Court looks a lot less like the American public than we might hope. For the development of the law, this limited diversity can make the Court “woefully inattentive to its impact on underrepresented groups.” And on the most basic level, as this small and elite institution makes laws for a large and diverse country, many Americans do not see people like them regularly participate in the process.

Docket Capture

Homogeneity among Supreme Court advocates is by no means limited to race and gender. The small handful of elite appellate lawyers who argue most cases before the Supreme Court are not only overwhelmingly white and male—they also tend to represent the largest corporations in the world. Attorneys at corporate-defense firms are often conflicted out of representing plaintiffs, even if they would be inclined to do so otherwise.

This imbalance in the small group of advocates who have the ear of the Court has serious consequences for the Court’s agenda and the public’s perception that the Court gives each party before it an equal hearing. In turn, the stakes for the country are high: not just the rights of workers, consumers, and other plaintiffs, but also the credibility and legitimacy of the Court in the eyes of a public that already believes their government is overly aligned with the interests of large corporations.



… The influence of corporate America in the Supreme Court is borne out by the dominance of specialized “repeat players.” As Professor Richard Lazarus has written, the 1980 term saw 5.8% of cases argued by attorneys who have presented at least five cases before the Supreme Court, or who were affiliated with law firms whose members had argued at least ten. By 2007, the percentage of Supreme Court cases argued by such “expert advocates” had passed 50%. For the past several years, it has hovered around 70%. Hiring one of these advocates is especially useful at the cert stage, and, since the 1980’s, the success of cert petitions filed by specialized private appellate practices has skyrocketed. In 1980, 5% of successful petitions (excluding the Solicitor General’s) were filed by repeat player advocates. By 2007, that rate had increased to more than 50%. Unsurprisingly, these advocates’ corporate clients benefit from their success. The past few decades are replete with examples of the Court granting