Adam Liptak’s  New York Times article about the Roberts Court’s philosophical embrace of business interests allows for a tangent into the world of the Supreme Court bar, those “specialized” lawyers whose practice revolves around arguing before the Big Bench.

The Roberts court’s engagement with business issues has risen along with the emergence of a breed of lawyers specializing in Supreme Court advocacy, many of them veterans of the United States solicitor general’s office, which represents the federal government in the court.

These specialists have been extraordinarily successful, both in persuading the court to hear business cases and to rule in favor of their clients.

Over at Volokh Conspiracy, Orin Kerr runs with this aspect of the article, offering his “pet theory”:

My pet theory attributes the creation of the specialized Supreme Court bar to the increase in the number of law clerks each Justice hires. Back in the 1930s, each Justice typically would hire one clerk. That number went up to two by the 1950s, then three around 1970, and then four by the 1980s. Since the 1980s, the Justices have “graduated” about three dozen former clerks a year — with the exact number depending on whether individual Justices hire their full complement of clerks, as well as whether there are retired Justices around still hiring.

The increase in the number of clerks led to a crew of young lawyers entering private practice every year who happen to have great expertise in how the Supreme Court works. The Supreme Court can be a quirky institution, and these young lawyers knew the quirks. If you say that 2/3 of former clerks went into private practice, that’s around 25 new lawyers a year. Many of those former clerks naturally were interested in Supreme Court work, so they started to focus on Supreme Court work and helped permit and foster appellate practices focused on Supreme Court litigation. With enough former clerks around, there were lots of lawyers who could help create dedicated Supreme Court practices that amounted to a dedicated Supreme Court bar.

What remains unexplained is why these SCOTUS grads chose to use their insider knowledge for the benefit of business interests rather than, say, the public good. 

Historically, former Supreme Court clerks went on to more lofty pursuits, the bench and academia.  Given their educational background, top of the class from the most elite schools, it was a natural transition.  While they had to pay some dues beforehand, and maybe even repay some loans, the end game was to put their experience to use for the betterment of all.  Or at least, for what they perceived to be betterment, but that’s a discussion for another day.

So why the conversion from more intellectual pursuits to a fraternity of Supreme Court specialists?

Even smart kids want to drive fancy cars.

The gist of Liptak’s articles is that one of the most powerful forces driving cert petitions and argument before the Supreme Court comes straight from the board rooms of Americas major corporations:

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.”

This isn’t your father’s Chamber of Commerce.  This is big money litigation.  Huge money litigation.  And its being used to buy the hearts and minds, not to mention the brains and balls, of these one-time Supreme Court insiders.  Knowing how to frame a cert petition to appeal to the particular personalities on the bench is worth a great deal to this Chamber.  This chamber wants to get its say in that chamber, and it will pay for the privilege.

Being an unrepentant capitalist, there’s little to fault in the choice of former clerks making the decision to go for the money, to capitalize on their experience and monetize their insider info.  It may be crass to think that such fine minds care only for the cash, but it’s certainly an understandable choice.

The downside, of course, is that the scales are way out of balance.  While the National Chamber Litigation Center contends that it’s merely a credible voice for business, which may well be true, it leaves open the question of who is the credible voice for opposing positions?

When the balance of power becomes so skewed, one has to question whether the integrity of the Court is in jeopardy.  As Liptak notes, it’s not as if the Court is resistant to business interests.

The idea that the Supreme Court reflexively rules for the chamber and other business interests is too simplistic, many legal scholars and practitioners say. If the court favors business, they say, it is as part of a broader orientation toward free markets and a wariness of many kinds of lawsuits.

But given the Supreme’s orientation in favor of business, the need for strong opposition, a worthy challenge to the Court’s inclination to favor business interests, becomes increasingly important.  Unfortunately, the loyal opposition doesn’t always have the money or firepower to give it the ability to mount a valiant effort.

There was once a time when concerns for society trumped a job that paid extremely well.  That was before greed was good; that was before amorphous libertarian philosophies allowed those who preferred bespoke suits and fast cars to social justice in any of its permutations.  Not that there’s anything wrong with bespoke suits and fast cars.  I wonder if  Bill Gates’ Porsche 959 is still sitting on a dock in Seattle?

Just as Gates has moved from the accumulation phase of his life to the point where he uses his wealth to help others, perhaps this trend of insiders going for the gold will reach a saturation point, where they will have enough money and use their insider knowledge for purposes other than a cash bonus.

It may be that business interests will always prevail with a court inclined to favor them, but there needs to be a balance of power, where both sides have both access to the Supreme Court and credibility, if its decisions are to be worthy of credit and serve broader societal interests.  A bunch of kids being well paid by business interests isn’t a very good way to run a branch of government.