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An unfair advantage for business in the U.S. Supreme Court?

by Chris Booberg on January 19, 2015

A very small percentage of practicing attorneys appear to argue a case before The Supreme Court of the United States during their career.  In order to do so, an attorney must be admitted as a member of the bar of The Supreme Court of the United States in addition to being admitted in the state or states where he practices.  The lawyer must also represent a client with the desire and ability to appeal a case to The Supreme Court of the United States.  After that, The Supreme Court of the United States must choose that case for consideration from the thousands of petitions it receives.  

Given all of that, it is understandable that the vast majority of attorneys in America will never appear to argue a case before The Supreme Court of the United States.  I once filed a criminal appeal with The Supreme Court of the United States, but the case was denied.

Who does practice before The Supreme Court of the United States?  Reuters recently investigated this question and their findings were cause for concern.  According to Reuters of the 17,000 attorneys who appeared before the United States Supreme Court, 66 of those attorneys were six times more likely to have their appeals granted than all the other attorneys who filed petitions.

Of those 66 attorneys, 51 work primarily for business interests.  As stated by Justice Ruth Bader Ginsburg, “Business can pay for the best counsel money can buy. The average citizen cannot,” Ginsburg said. “That’s just a reality.”

Because these attorneys typically represent large corporations, they do not accept cases representing individuals because they typically represent the corporations those individuals are suing or would be prevented from representing those corporations in the future in they represented an individual against them.

As a result, corporations have been able to ensure that the elite attorneys who are more than six times likely to have their cases heard by The Supreme Court of the United States are typically fighting on the side of large corporations.  

We may not have reached this point yet, but the fact that corporations are routinely represented by the most successful lawyers who appear before The Supreme Court of the United States could eventually act as a de facto barrier to entry for individuals seeking redress against corporations.

  

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