Since her appointment in 2010, Justice Elena Kagan has remarked on multiple occasions that although the overall quality of advocacy before the U.S. Supreme Court today is high, the same cannot be said of the advocacy for criminal defendants. While some scholars and practitioners have made similar observations, there has been little meaningful study devoted to the question of whether criminal defendants—as a category of litigant—are being adequately represented by counsel at the Supreme Court. In particular, no commentator has meaningfully explored whether inexperienced criminal defense attorneys make sufficient use of assistance offered by expert Supreme Court litigators.
This Note aims to fill part of that void. I argue that the criminal defense advocacy gap observed by Justice Kagan does exist; that the advocacy gap places criminal defendants at a distinct disadvantage before the Court; and that to close this advocacy gap, more criminal defense attorneys should accept assistance from Supreme Court specialists once a case reaches the merits stage of Supreme Court litigation.
Part I presents a statistical analysis of Justice Kagan’s assertion that criminal defendants are more likely than other litigants to be represented at the Supreme Court by inexperienced advocates. I test that assertion by comparing the Su- preme Court experience of criminal defense attorneys appearing at oral argu- ment with that of opposing government counsel and other Supreme Court advocates during the last five Supreme Court Terms. The results show that Justice Kagan is correct: criminal defendants are significantly more likely than other litigants to be represented by counsel making their first Supreme Court argument. This disparity increases when the experience of defense attorneys is compared with that of their opposing government counsel.
Part II of this Note asks whether the criminal defense experience deficit is a problem. It answers that question by presenting the results of empirical studies that show an attorney with previous Supreme Court experience is more likely to achieve a positive outcome for his client at the merits stage than counsel without Supreme Court experience. These studies suggest that criminal defen- dants who are represented by inexperienced counsel are at a distinct disadvan- tage at the Supreme Court, especially in light of the extensive Supreme Court expertise often wielded by their government adversaries. Further, these studies suggest that the criminal defense experience deficit is a cause for concern for the entire country because the decisions made by the Court in criminal cases shape civil liberties for all who live, work, and travel in the United States.
Part III examines the implications that these data have for criminal defense attorneys who reach the merits stage of Supreme Court litigation. Although there may be some promise in making systemic reforms to improve criminal defense advocacy at the Supreme Court, I argue that the simplest and most effective way to address the criminal defense advocacy gap is for criminal defense attorneys who lack Supreme Court experience to be more willing to accept briefing and argument help from Supreme Court experts.