Explaining the Rise of the Modern Supreme Court Bar

The remarkable reemergence of a private Supreme Court Bar possessing such expertise is likely the product of a confluence of factors, some driven by supply and some by demand. Clearly, Rex Lee’s entrepreneurial ability played a significant role both by offering a supply of Supreme Court expertise and, in turn, by generating demand by persuading the business community that enlisting such expertise could yield favorable results before the High Court. When other leading corporate law firms responded, not by refuting Lee’s claims of the value to clients of Supreme Court expertise, but by echoing it and offering their own in competition, the firms succeeded together in generating more and not less business for them all.

Lee, however, also likely benefited from other factors that made the mid- 1980s an especially opportune time to persuade the business community that both the Supreme Court and expert Supreme Court counsel were in its interest. By the fall of 1986, just when Rex Lee was entering private practice, President Ronald Reagan had already made three successful nominations to the Supreme Court—Sandra Day O’Connor as Associate Justice in September 1981, and both Antonin Scalia as Associate Justice and William Rehnquist from Associate Justice to Chief Justice in September 1986. Within a year, President Reagan nominated a replacement for Justice Lewis Powell. The business community had reason to hope that the Rehnquist Court, like the President who had nominated its new members, would be more responsive to its concerns and legal arguments.

Two factors, however, played particularly significant roles in both promoting and shaping the Supreme Court Bar’s development in the mid-1980s. The first was a parallel effort by industry, perhaps prompted by the same developments in

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Adam J. Liptak, Specialists' Help at the Court Can Come with a Catch, N.Y. Times, October 9,

2010, at A1.

national politics, to enlist an expert bar in its effort to achieve favorable Supreme Court precedent. The second was the Rehnquist Court’s dramatic shrinking of the Court’s docket that, somewhat paradoxically, created opportunities for its domination rather than undermining the Bar by decreasing demand for its expertise.

 
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