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Futile Arguments: Lawrence v. Texas and the Supreme Court Bar

This article first appeared in the Modern American in September 2010. For the full text, with citations, please visit that site.

I am a third year law student, gearing up to face a bleak legal job market, a bleaker economy, and almost two hundred thousand dollars in student debt. I entered law school from the Peace Corps with a clear goal: to be an advocate for gender and sexual minorities through public policy, legislative drafting, or appellate litigation. Now to make that dream come true. Passion? Check. Knowledge? Check. Partnership in a D.C. law firm specializing in appellate and Supreme Court litigation? Not yet.

Last semester, my penultimate, I took a seminar on the Supreme Court taught by long time Supreme Court journalist Stephen Wermiel. The course broadly covered several controversial aspects of the Supreme Court, one of which was the rise of the professional, specialized Supreme Court bar. Our class discussions led me to wonder how appellate attorney Paul Smith, an appellate attorney at Jenner and Block, got the privilege of arguing Lawrence v. Texas in the Supreme Court instead of the lawyers at Lambda Legal. Mr. Smith seemed to be a very kind, passionate individual when he visited our class, but Mitchell Katine, along with Lambda Legal lawyers Ruth Harlow and Suzanne Goldberg, had carried the case from trial. I was sure that there was a story behind Mr. Smith getting to argue in the Supreme Court rather than Mr. Katine, Ms. Harlow, or Ms. Goldberg, and I wanted to hear it. Would the theme of the story be the rise of the Supreme Court bar: D.C.’s repeat players who have over ten arguments under each of their belts and whose names Supreme Court buffs whisper in reverence?

The elite Supreme Court bar rises as another hurdle, another inequity standing between me (and by proxy all passionate advocates) and the chance to argue a case before the Supreme Court. As a future public interest lawyer, it is hard to describe my feelings: a mixture of jealousy, respect, frustration, resignation. As an advocate for a particular community, I know that I

do not want to work in general appellate litigation, waiting around for the case of my dreams to come to me. I am also

aware that dozens of years often pass before appellate litigators and successful advocates are offered the chance to argue

in the Supreme Court. I hope to spend those years of my life as Ruth Harlow and Suzanne Goldberg from Lambda Legal

spent theirs, working on a cause about which they were passionate, creating legal strategies, building reputations, writing, researching, arguing, being cool. But if after all that, Paul Smith was given the opportunity to argue Lawrence v. Texas

in the Supreme Court instead of Ruth Harlow, what chance have I? This paper explores the impact that the elite Supreme Court bar may have on the chance that non-specialized lawyers will be given the opportunity to advocate for their clients and causes in the Supreme Court.


For the full text of this article, please visit the Modern American.

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