Even Superstar Supreme Court Litigators Can’t Win Them All
Plus SCOTUS advocates with the highest win rates, and other interesting info from a new paper.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The detailed footnotes contain material that did not appear in the Bloomberg Law version of the piece. You can think of the footnotes as a form of “bonus content” for Original Jurisdiction subscribers.
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.1 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, these pesky things called “the law” and “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.2
I was reminded of this while reading a fascinating new paper, “The SCOTUS Tournament: Winning Isn’t Everything.” It was 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 U.S. 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 percent of the time, meaning that respondents won around 40 percent 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 percent of the time when on the petitioner side. And while that’s below the average win rate of 61.2 percent 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 percent of the time when on the petitioner side. But rookies on the petitioner side going up against superstars won 51.8 percent of the time.
That’s striking—very different from my experience in high-school or college forensics, where a seasoned competitor would almost always crush 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.”3
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?4
“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 alumni of the Office of the Solicitor General (OSG), the federal government’s chief advocate before the Court, two lawyers did jump out at the professors for remarkably high win rates. Lisa Blatt, who has argued more SCOTUS cases than any woman in history, prevailed 88.9 percent of the time (regardless of which side she represented). In second was her ex-colleague at OSG, former U.S. Solicitor General Paul Clement, who won 75.8 percent of the time.5
Among the top 15 lawyers ranked by number of oral arguments before the Supreme Court, only two others had win rates north of 60 percent. And like Clement, both are former U.S. solicitors general: Donald Verrilli (62.5 percent) and the late Ted Olson (63.2 percent). See this table, “Top 15 Lawyers with Most SCOTUS Appearances at Oral Argument—Ranked By Win Rates” (note that the number of appearances includes all arguments, whether for the government or a private client, while the win rates are based only on private-sector wins):
As a self-professed devotee of the Supreme Court bar, I’m a huge fanboy of this foursome (Blatt, Clement, Verrilli, and Olson). But I couldn’t help wondering if they are that much better than similarly celebrated peers with lower win rates. So I asked George and Yoon: 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 (who’s paying you and how much),6 the importance of the issue or cause to the advocate (think marriage equality and Ted Olson), and the ability to build one’s brand through media exposure (if the case is a high-profile one).
In closing, 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 brought up her hobby of coaching high-school debate. I asked her: does she get very competitive about it, as I did back in my salad days?
“I don’t think it’s about winning,” Blatt 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.”7
For folks familiar with high-school forensics, my main event was Extemporaneous Speaking aka “Extemp,” although I also dabbled in Lincoln–Douglas debate aka “L-D.”
Speaking of super-competitive, Type-A lawyers, I’m about to publish a new Supreme Court clerk hiring roundup. If you’re aware of hires that didn’t appear in my last report, please email me, at davidlat dot substack dot com, or text me, at 917-397-2751 (texts only, not a voice line). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text.
And here’s a little incentive: if you provide me with an October Term 2025 hire that I don’t already have, I’ll give you a complimentary, six-month paid subscription to Original Jurisdiction. This will allow you to view the full clerk lists when I publish them (probably later this week). Here are the justices whose OT 2025 hires I’m missing: Chief Justice Roberts (but not Billy Eisenhauer or Brynne Follman), Justice Alito (any clerk), Justice Elena Kagan (but not Sammy Bensinger or Catherine Padhi), Justice Barrett (but not Kate Rhodes or Matt Phillips), and Justice Kennedy (the one clerk he’s entitled to as a retired justice).
Also notable: at a certain point, according to the study, there may be “diminishing returns to experience at the SCOTUS podium.” Lawyers making their 10th appearance before the Court won 56.0 percent of the time (regardless of side), while lawyers making their 25th or higher appearance won 56.6 percent of the time—suggesting that if the more experienced attorneys have an edge, it’s not a huge one.
Speaking of renowned Supreme Court advocates with sky-high billable-hour rates, Neal Katyal—whose billing rate back in 2022 was $2,465, so it’s surely higher now—is leaving Hogan Lovells and moving to Milbank. I’ll have more to say about this in the next edition of Judicial Notice; it’s almost certainly going to be my Move of the Week.
Speaking of OSG, I have information about a question I posed last week: do the 2025 Bristow Fellows still have jobs? Or did they, like Honors Program participants, fall victim to the Justice Department hiring freeze?
As of last Thursday, the incoming Bristow Fellows hadn’t heard anything, either way. So no news is good news, I’m guessing. But as always, please drop me a line if you have any info, and I’ll update this post.
On the factor of economic incentives, you might be thinking, “Duh! Of course lawyers consider money when picking their cases.” But Supreme Court practice is a bit different.
Take Tom Goldstein—who has had a number of developments in his criminal tax case, including his arrest, which I’ll also write about in more detail in this weekend’s Judicial Notice. In the early days of his practice, he’d sometimes represent parties with Supreme Court cases for free, to build his experience at the podium at One First Street.
And in our interview, Tracey George drew an interesting distinction for me: there are some lawyers who rely on Supreme Court work for a significant portion of their income, such as partners with their own appellate boutiques, and there are some who are part of giant Biglaw firms. Lawyers in the second group might not care as much about the fees generated by their SCOTUS work if their practices are being “cross-subsidized” by more lucrative practices at their mega-firms. But note that some leading appellate advocates in Biglaw push back on the notion of Supreme Court practice as a “loss leader”—like Kannon Shanmugam of Paul Weiss, when I interviewed him a few years ago.
Speaking of things that are outside the control of Supreme Court litigators, I suspect that the quality of advocacy is even less relevant in the most politicized cases, which researchers can identify in various ways (such as which cases attract the most amicus briefs, Professor Derek Muller’s method). I suggested to George and Yoon that they delve into this subject if they do further research in this area.
Just off the top of my head, take a case like Dobbs v. Jackson Women’s Health Organization, in which Mississippi Solicitor General Scott Stewart went up against Julie Rikelman of the Center for Reproductive Rights and then-U.S. Solicitor General Elizabeth Prelogar. All three advocates—including Rikelman, now a judge on the First Circuit, and Prelogar, a generational talent in the SCOTUS bar—did an excellent job.
But I suspect that no Supreme Court advocate, living or dead, could have convinced the justices not to overrule Roe v. Wade. When it comes to the most polarizing cases—as opposed to, say, non-political, technical cases involving the interpretation of statutes like ERISA—“Justices gonna justice.”
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Mr. Lat, my appellate work has been only sporadic. But I was told when I became a trial lawyer, and believe based on 44 years of practice since then, that a lawyer's win/loss record at trial isn't very useful.
More useful, but much harder to assess, is the number of cases you win that you ought to have lost, versus the ones you lose that you ought to have won.
I've of course won cases I ought to have won, and lost cases that were effectively unwinnable. Indeed, I've been hired several times on unwinnable cases, in which my sole goal was the least-bad version of losing. I call these my "dead-stick landing" cases, meaning my client and I each got to walk away after the inevitable crash.
It's the cases you lose but ought to have won that teach you the most, though. The war stories from those cases are a good curriculum for learning to be a trial lawyer, and I love hearing them and (painfully, ruefully, but honestly) telling them.
And of course, even the best trial lawyers settle most of their cases, in which their skill and zeal may demonstrably result in a superior settlement to that which could have been accomplished by lessor effort, or by a lesser lawyer. Like the 80% of people who consider themselves a better than average driver, though, many lawyers maintain their egos mostly through the wiggle-room created by the difficulty of assessing settlement results.
I'm undefeated in Supreme Court arguments (1/1). Ya gotta know when to quit.