Yesterday's New York Times had an interesting -- and lengthy -- article on the rise of Supreme Court specialists. In 2008, the percentage of Supreme Court arguments handled by Supreme Court specialist was more than 50 percent; 30 years ago, the percentage was only six percent. The article is here.
The article explores at length the tension between Supreme Court specialists (including law school clinics) who aggressively pursue promising cert petitions pro bono for the opportunity to get to the podium, and public interest lawyers who are interested in a more careful development of precedent. The public interest lawyers are concerned with what one clinical law professor calls “distorted incentives”: “The competition for cases that may be heard by the Supreme Court on the merits creates a disincentive to the new Supreme Court bar to engage in full case analysis prior to accepting a case for representation.”
The article gives one example of a case in which pro bono Supreme Court advocates succeeded in getting the Supreme Court to review a Tenth Circuit immigration decision, Fernandez-Vargas v. Ashcroft. The case resulted in the Supreme Court affirming the Tenth Circuit by an 8-1 vote, effectively overruling several Ninth Circuit decisions that public interest immigration lawyers regarded as favorable.
