Even Superstar Supreme Court Litigators Can’t Win Them All

I confess to a competitive streak, which I trace back to my days in high-school speech and debate. I went from being a nerdy kid, always picked last in gym class, to someone who won—a lot. And winning is fun (as my seven-year-old son, who leads our Monopoly series 10-5, can attest).

When I was a practicing litigator, it frustrated me that I couldn’t always win, even when I felt I was a better advocate than my opponent. To my great annoyance, the “law” or the “facts” kept getting in the way. When they weren’t on my side, I’d often lose—regardless of how I or my opposing counsel did.

It’s a testament to the quality of our nation’s judicial system, including our judges, that the side that deserves to win on the merits usually does. But as a super-competitive, Type-A lawyer, this reality made litigating less fun for me.

I was reminded of this while reading a fascinating new paper, “The SCOTUS Tournament: Winning Isn’t Everything,” coauthored by three law professors who are leading scholars of the legal profession: Tracey George of Vanderbilt University, Albert Yoon of the University of Toronto, and Mitu Gulati of the University of Virginia.

Reviewing US Supreme Court arguments and outcomes from 1970 to 2023, the authors evaluated the win rates of the 4,599 lawyers who argued before the court in 7,077 cases as advocates for private parties (as opposed to government ones). The professors found that although “lawyers with more experience win more,” it’s “not that much more than those with some but less experience.”

This type of study needs to have baselines. As the paper explains, unlike at “the intermediate appellate level, where the presumption is affirmance of the lower court (since all cases can be appealed), the presumption is reversal” once a case reaches the Supreme Court. The data reflects this: Over the study period, petitioners—parties seeking reversal—won around 60% of the time, meaning that respondents won around 40% of the time.

The professors divided the advocates into four categories, based on experience arguing before the court: “rookies (showing up for the first time), veterans (those with between two and five appearances), stars (between five and ten appearances); and superstars (more than ten appearances).” They then looked at the win rates of the different groups, considering whether the attorney represented the petitioner or respondent.

What did they learn? Rookies won 55.1% of the time when on the petitioner side. And while that’s below the average win rate of 61.2% on the petitioner side, it didn’t seem dramatically lower to me.

The authors also looked at win rates of the different groups relative to each other. Rookies going up against other rookies won 55.2% of the time when on the petitioner side. But rookies on the petitioner side going up against superstars won 51.8% of the time.

This is striking—very different from my experience in high-school or college forensics, where a seasoned competitor would almost always prevail against a newbie. Or to take the professors’ preferred comparison, “Advocacy before the Court differs from what we observe in tennis, where Roger Federer or Serena Williams in their prime almost never lost in the early rounds of Wimbledon to unseeded players.”

So why do clients pay so much money, north of $2,000 an hour, for top Supreme Court advocates, to gain only a slight edge?

“When the stakes are so high, you don’t want to be cheap,” Yoon told me. “In many of these cases, the advocacy cost is ‘couch change’ relative to the stakes. So the clients will be risk-averse and say, ‘Let’s just hire the former solicitor general.’”

Speaking of US solicitor general’s office alumni, two lawyers did jump out to the professors for remarkably high win rates. Lisa Blatt, who has argued more Supreme Court cases than any woman in history, prevailed 88.9% of the time (regardless of which side she represented). In second was former US Solicitor General Paul Clement, who won 75.8% of the time.

Among the top 15 lawyers ranked by number of oral arguments before the Supreme Court, only two others had win rates north of 60%. And like Clement, both are former US solicitors general: Donald Verrilli (62.5%) and the late Ted Olson (63.2%).

As a self-professed devotee of the Supreme Court bar, I’m a huge fanboy of this foursome. But I can’t help wondering if they are that much better than similarly celebrated peers with lower win rates. Is it possible that lawyers with higher-than-average win rates are picking their oral arguments selectively, taking winnability into account?

“We didn’t see that in the data,” Yoon said. “But we did interview Supreme Court advocates as part of our research, and while most said that they’re just happy to be at that podium, one lawyer told us that for certain other members of the Supreme Court bar, winning is really important.”

“I think of lawyers as super-competitive,” George told me. So it wouldn’t be shocking to learn that lawyers consider the likelihood of prevailing in a case when picking which cases to argue.

At the same time, George added, winnability is only one possible consideration among many. She identified others as economic incentives, the importance of the issue or cause to the advocate, and the ability to build one’s brand through media exposure, if the case is a high-profile one.

To quote the title of the paper, “Winning isn’t everything.” Even Blatt, the SCOTUS superstar with the highest win rate, would agree with that sentiment.

When I interviewed her for my podcast in 2022, I asked about her hobby of coaching high-school debate—and whether she gets very competitive about it, as I did back in my salad days.

“I don’t think it’s about winning,” she told me. “And that’s one of the things you have to teach kids, because they just want a trophy. So much in life when it comes to competition and jobs is arbitrary and capricious.”

“One of the things that is so important for us to understand, even as adults, is that some stuff is out of our control.”

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

Read More Exclusive Jurisdiction