Ghostwriters Try Steering Supreme Court Justices Away from Cases

It was the tone, familiar turns of phrase, and arguments emphasized that made Sean Marotta suspicious.

The brief in opposition to the new case the US Supreme Court had just agreed to hear next term read like a seasoned advocate had written it, but it was signed by a New York consumer fraud attorney who had no known Supreme Court experience.

That’s what prompted the Hogan Lovells partner to suggest in an April 29 post on X, the social media site formerly known as Twitter, that the court filing had been ghostwritten.

Though some attorneys saw the comment as a dig at small firm lawyers, Marotta’s post brought renewed attention to a relatively common, albeit little-known, tactic attorneys use to steer the justices away from taking a case.

Ghostwriting is seen most often on opposition briefs filed by the party responding to an appeal and it’s based on the theory that the Supreme Court is more likely to take a case if there are good lawyers on both sides arguing.

Having a Supreme Court specialist ghostwrite the filing gives the client the benefit of the attorney’s expertise without sending the signal that a big name is on the other side, said Marotta, who’s ghost written briefs himself.

It tends to happen most on briefs in opposition “because the whole point of a brief in opposition is to try to convince the court not to take the case,” he said.

Tricking Tactic?

There are no rules against ghostwriting and Supreme Court advocates seem to agree there’s nothing specifically unethical about it. But Washington University in St. Louis law professor Daniel Epps, said the practice does raise some ethical concerns.

“I don’t think there’s really any other way to explain the practice other than as an intentional attempt to mislead the court,” he said. “That’s clearly why people are doing it.”

In theory, Epps said the court should have all the information to make the best decisions possible.

“If I were the chief justice, I would propose a rule change that just said something like ‘if any lawyer is materially responsible for drafting a brief, their name should be disclosed,’” he said.

The American Bar Association looked at the issue of ghostwriting in 2007, and said in an opinion that it’s not unethical for lawyers to ghostwrite briefs for litigants who represent themselves.

That position “helps facilitate legal representation for pro se litigants who otherwise might not be able to pay for the help they need,” Renee Knake Jefferson, a University of Houston Law Center professor and expert in legal ethics, said in an email

There is not, however, a specific rule in the ABA Model Rules of Professional Conduct, she said.

While it’s not impossible for a lawyer with little Supreme Court experience to write a good brief, advocates say getting the style and approach down often takes experience.

“It’s just a different lingo,” said Daniel Geyser, a Haynes and Boone partner who chairs the firm’s Supreme Court practice. “It’s like speaking with an accent.”

That’s one reason ghostwriting may not be effective: attorneys say the justices can likely tell when a brief has been written by a Supreme Court veteran.

“There’s just a vernacular to people who practice there a lot,” said Tom Goldstein, who retired from Supreme Court advocacy in March 2023 after arguing 45 cases before the court. “There’s a structure to the briefs. It doesn’t mean that a Supreme Court practitioner necessarily writes a better brief in any way, but it does mean that they write a brief in a particular way.”

Geyser doesn’t think ghostwriting is a good idea in part for that reason.

“The entire point of ghostwriting is to downplay the case’s significance, not make it look like there’s a veteran on both sides,” he said. “The court’s going to see right through that.”

No Prohibiting Principle

There’s no way to know whether ghostwriting is actually effective in dissuading the court from taking a case.

“You can’t test this,” Goldstein said.

The brief Marotta flagged was in response to an appeal the justices agreed to hear from the manufacturers of a CBD hemp oil facing triple damages in a consumer suit.

Jeffrey Benjamin, of The Linden Law Group PC in New York City, was the attorney on the brief in opposition urging the court not to step into the case. The two-person firm handles consumer fraud and breach of contract cases, according to its website. Benjamin didn’t respond to emails requesting comment.

After the case was granted, Easha Anand, co-director of the Supreme Court Litigation Clinic at Stanford Law School, appeared in a filing as counsel of record for the respondent, leading some to question whether she was the true author of the brief. Williams & Connolly partner Lisa Blatt, who is representing the CBD hemp oil manufactures, listed Anand as opposing counsel in a May 7 request for more time to file briefs in the case.

“Almost every time you see a brief bearing the hallmarks of a Supreme Court veteran, sure enough some veteran appears once the case is granted,” Geyser said.

Anand declined a request to comment for this story.

The brief’s metadata lists Goldstein, who co-founded Stanford’s Supreme Court Litigation Clinic, as the author of the brief. He didn’t write it, but said it’s overwhelmingly likely someone there did.

A template for a Supreme Court opposition brief is not something that would be recreated, he said.

Regardless, Goldstein doesn’t see any ethical issue with the practice of ghostwriting. Stanford’s clinic looked at it in its early days and couldn’t find any ethical principle that would prohibit it, he said.

“By definition, a lawyer not being on a brief means that their presence cannot influence a justice,” Goldstein said.