The Significance of the Modern Supreme Court Bar
The rising dominance of the modern Supreme Court Bar naturally raises the question whether there is any broader significance to that development beyond the implications within the legal profession. In the early nineteenth century, the general consensus was that the extraordinary individuals within the Bar played a major role in influencing the development of the basic legal doctrine upon which the nation, two centuries later, is still based. Can the Bar today make a comparable claim?
Of course, the phenomenon of the reemerging Supreme Court Bar is still too new for history to evaluate, but the preliminary indications are that the Bar is having a significant effect on the identity of cases on the Court’s plenary docket, shifting that docket to topics more responsive to the concerns of private business. There is also good reason to believe that the new Bar is influencing the Court’s rulings on the merits. Better advocates not only win more often, but even more importantly, they influence the content of the opinions, including the words used and the breadth of the ruling or, conversely, the lack thereof. In the longer term, it is the words that the Court uses throughout its opinion, rather than whether the opinion nominally ends with an “affirmed" or “reversed,” that tend to have the most significant impact.
Precisely because of the potential significance of the modern Supreme Court Bar for the Court’s docket, rulings on the merits, and even membership, there is reason for concern that the reemergence of a Supreme Court Bar may disproportionately favor those monied economic interests that are more able to afford to pay for such private-sector expertise. While better advocacy is generally a good thing, able advocacy on all sides of a case before the Court is the best outcome by far.