Who Wins at the Supreme Court? Exploring the Patterns of Victory in Major Case Areas

An in-depth look at the dominant players, key issue areas, and repeat victors shaping the outcomes of Supreme Court rulings.

The Supreme Court has two outcomes of interest. One is the vote and the other is the opinion. Sometimes they are near synonymous when there is a discreet outcome. Examples of this are overturning the constitutional right to an abortion or allowing certain means for voting. Then there are outcomes that are more difficult to distill down into something discreet. In Sackett v. EPA experts could not even agree if the decision was 9-0 or 5-4 because of the separate opinions that went in various directions although generally concurring opinions are treated as votes for the majority.

The holding in Sackett is that The Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States—i.e., with a relatively permanent body of water connected to traditional interstate navigable waters and yet this does not explain what “continuous surface connection” means and if there is a clear way to distinguish between this and other connections.

In cases like Sackett though the winners and losers are clear from an outcome perspective. Justice Alito wrote at the end of the decision “This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.” This clearly lays out that the lower court decision was reversed and that the Sacketts were successful in their appeal reversing the EPA’s original determination. With this knowledge in hand, it is clear that the petitioners won with representation from Damien Schiff who argued on their behalf. The EPA was on the losing end of this decision with the position argued by Brian Fletcher.

We can extrapolate similar principles to create a framework for identifying the most successful attorneys before the Supreme Court. This article uses data from the 2000 Supreme Court Term through the previous Term (OT 2023) to extract the most successful attorneys across six different areas of law.

Data Notes

This is a first cut at this data and there will be several follow ups. In this instance the attorneys arguing for the U.S. government are mixed in with attorneys for public interest firms and those in private practice. Since according to my data, the U.S. government with cases argued by the Office of the Solicitor General (OSG) won fewer than 50% of its cases under Obama and Trump (during his first term), the OSG does not necessarily have a built in advantage to win. Individuals in the OSG though get to regularly argue before the Supreme Court and so their argument count tends to be much higher than attorneys in private practice. This is all reflected in the data.

The two sources for data were the United States Supreme Court Database (SCDB) for case level information and Oyez.org for the advocates. The SCDB codes every case along several important dimensions. For the purpose of this article, the important variables are case name, docket, winning party, and issue area. Not all cases have clear coding supplied for each of these variables and so cases where, for instance, a winning party was not coded, were removed from the analysis. Using the docket numbers, I merged the attorneys from Oyez with the SCDB and associated the attorneys with either the petitioner/appellant or the respondent/appellee. The rest of the analysis was relatively straightforward and allowed me to extract the most successful attorneys across six areas of law that comprise a large portion of the business before the Supreme Court.

Analysis

The areas of law in this analysis which are derived from the SCDB¹ are criminal procedure, due process, economic activity, civil rights, First Amendment, and judicial power. The entire dataset for this period consists of 427 criminal procedure decisions, 423 decisions under economic activity, 316 under civil rights, 230 under judicial power, and 61 under due process. The petitioner won in 1,265 instances or 67.6% of the time. When thinking through these findings, it may be worth considering the petitioner’s advantage and so an attorney regularly representing the respondents will have an inherent disadvantage with these success rates (this paper might be useful in thinking through why this is the case).

Each subject area has a minimum number of cases for analysis that I implemented. The reason for this is so we are comparing apples to apples in some sense. An attorney might have a high success rate with a sample of one case, but it takes multiple cases to develop a track record. The minimum number of cases was set so that there are several of the top attorneys to compare but all with substantial experience in the subject area. Also, I only focus on attorneys with a high level of success. The threshold I set for all categories is a minimum of 50% success in those cases so these are really the best of the best.

So which attorneys have been most successful in the various areas of law?

Criminal Procedure

The minimal number of cases for this category is five and this area looks at cases dealing with the rights of persons accused of crime, except for the due process rights of prisoners.

WilmerHale veteran and former SG, Seth Waxman has 100% success across nine cases in this area including Hall v. Florida in 2013 where he represented Freddie Lee Hall. The court in Hall decided that executing an intellectually disabled person violates the Eighth Amendment’s protection against cruel and unusual punishment.

Former Michigan SG and current ADF senior counsel John Bursch also had 100% success in this area. Bursch argued cases including Lee v. United States in 2017, a case dealing with ineffective assistance of counsel. Other highly successful attorneys include Tom Goldstein, formerly of Goldstein and Russell, Ted Cruz (yes, the senator), and former SG Paul Clement.