In a recent study titled “The SCOTUS Tournament: Winning Isn’t Everything,” co-authored by law professors Tracey George, Albert Yoon, and Mitu Gulati, a comprehensive review of US Supreme Court litigation outcomes reveals that even the most experienced and celebrated Supreme Court advocates do not always prevail in their cases as frequently as one might assume. This study, which examines court arguments and outcomes from 1970 to 2023, sheds light on how experience does not dramatically increase a lawyer’s likelihood of success at the highest levels of judicial advocacy. The full paper can be accessed here.
The analysis included data from over 4,599 lawyers who appeared before the Supreme Court in 7,077 cases. It found that while lawyers with more Supreme Court appearances experience higher win rates, the increase is marginal when compared to those with relatively less experience. This challenges the often-held belief that a more seasoned lawyer is vastly superior when litigating before the Supreme Court.
During their research, the professors categorized advocates into four groups based on their frequency of appearances before the court: rookies, veterans, stars, and superstars. The data revealed that rookies on the petitioner side won just over 51.8% of encounters, even against superstars, indicating that a novice can hold their ground in the Supreme Court, defying conventional expectations. A broader look at the data suggests a reversal is more likely in the Supreme Court than in intermediate appellate courts. For more insight into these findings visit Bloomberg Law.
Notably, some of the most successful Supreme Court litigators like Lisa Blatt and Paul Clement, who have extraordinary win rates of 88.9% and 75.8%, respectively, even demonstrate the rarity of consistently prevailing at the court. As their careers highlight, a lawyer’s reputation and skill do afford some advantage but do not guarantee victory. Factors such as economic incentives, personal interest in advocacy issues, and opportunities for high-profile case exposure often play pivotal roles in a lawyer’s decision to take on particular cases, as noted in interviews conducted by the study’s authors with court advocates.
In the larger context of legal practice, the study illustrates that in the world of Supreme Court litigation, skilled and experienced advocates face challenges beyond their control, aligning with the assertion from one of the study’s authors that “winning isn’t everything.” As part of her ongoing engagement with the legal field, Blatt emphasized in a 2022 podcast interview that understanding and teaching resilience amid unpredictable outcomes is a crucial skill, suggesting legal excellence goes beyond mere win rates.