The Origins of the Supreme Court Bar: The Political Economy of Legal Services

 Jeremy Pilaar –

Why do the laws underlying capitalism so heavily favor the wealthy and corporations? One answer, according to my research, lies in the political economy of the legal profession. At the most elite level of the profession sits the Supreme Court bar, lawyers with enormous influence over key rules that structure market relations. In a recent piece, I trace the origins of the Supreme Court bar to better understand the Court’s rightward shift.

Over the past several years, the Court has used its power to give corporations a significant edge over average Americans—making it harder for consumers and employees to hold companies responsible for unlawful behavior, more difficult for workers to form a union, and easier for firms to engage in monopolistic practices and spend unlimited sums on elections.

Though part of this is due to the appointment of increasingly pro-business justices, Harvard Law Professor Richard Lazarus has shown that the Supreme Court bar has also played a role. This bar consists of the attorneys admitted to argue before the justices. As Lazarus and others have revealed, a handful of these lawyers appears before the Court much more frequently than the rest. This elite group also disproportionately works on behalf of large corporations, skewing the Court’s docket in favor of business and deepening the competitive imbalance between big companies and their opponents.

Though these dynamics are well documented, little is known about their origins. The elite bar only took shape in the mid-1980s, seemingly appearing out of nowhere and enjoying overnight success. I argue that its rise was one product of a sweeping effort by corporations to become more forceful political players over the past fifty years.

During the 1960s and 1970s, corporations faced a significant increase in consumer, health, and environmental regulation. Progressive groups also ramped up litigation to enforce the new rules. These changes alarmed the business community, whose political confidence had grown since the defeats of the New Deal. While still a corporate lawyer, soon-to-be Supreme Court Justice Lewis Powell developed a blueprint by which companies could respond: by pooling their resources and founding organizations that could buoy political candidates, influence lawmakers, and sway judges.

Corporations first deployed these tactics in the legislative arena. They spent billions of dollars creating think tanks, establishing political action committees, and hiring congressional lobbyists. Their investments paid off handsomely. By the late 1970s, they managed to halt legislation to create a consumer agency, expand public healthcare, and raise the minimum wage. The organizational machinery they built has since continued to help lower taxes on the wealthy, defang labor law, and deregulate speculative finance.

My research shows that business leaders used the same playbook in the judicial sphere. The corporate push to create an elite cadre of Supreme Court advocates took place in two steps. First, they ramped up demand for high-quality Court representation in the late 1970s and early 1980s. As companies enlarged in-house staffs to cope with mounting regulation, they formed the Association of Corporate Counsel to obtain stronger work product from outside firms. At Powell’s urging, they also created the National Chamber Litigation Center and a wave of sectorial organizations to draft amicus briefs and moot corporate attorneys. These groups became some of the most resourced and effective political actors in Washington. By pressuring private law firms to deliver improved advocacy and providing them with extensive support tools, corporate stewards generated demand for a new class of appellate lawyers.

Second, politically-savvy entrepreneurs wasted little time filling the void. Upon leaving the Reagan administration in 1985, outgoing Solicitor General Rex Lee met with then-Justice Powell to discuss how to leverage his skills as a high court litigator. Powell advised Lee to use his talents on behalf of corporations by founding a new kind of law firm molded after the Solicitor General’s Office, which represents the U.S. government before the justices and embodies the gold standard of Supreme Court litigation. Outgoing Assistant to the Solicitor General Stephen Shapiro arrived at the same insight just a few months later.

When these men launched their respective practices at Sidley Austin and Mayer Brown, they met instant success. Corporations, hungry for expert advocates, quickly gravitated toward these firms’ services. This prompted competitors across the country to form their own appellate divisions. Though much of this latter growth was prestige-driven, firms’ move to cultivate an elite bar fulfilled Powell’s vision of a Solicitor General for the private sector—a force that has successfully helped business tighten its grip on the Court’s docket and opinions ever since.

This study should be seen as a modest step in a broader law and political economy research agenda. Scholars must continue to lift the veil on how the wealthy and corporations have shaped the legal profession, resulting in market rules that favor their interests. Only once reformers have a firm grasp of who created our unequal economy—and how—can they begin to make it more just.

Jeremy Pilaar is the SFALP Fellow and Lecturer in Law at Yale Law School.