Richard J. Lazarus, The Power of Persuasion Before and Within the Supreme Court: Reflections on NEPA's Zero for Seventeen Record at the High Court, 2012 U. Ill. L. Rev. 231 (2012).
Abstract: This Article reviews the remarkable string of seventeen straight losses that environmental plaintiffs have suffered in Supreme Court cases arising under the National Environmental Policy Act (NEPA) and challenges the accepted wisdom that these rulings reflect the Court's hostility toward environmental protection. A close review of the cases, including the advocacy before the Court in each case, and the deliberations within the Court during its decision-making process, reveals instead a far more nuanced and less one-sided understanding of the rulings, and underscores the significance of effective advocacy both before the Court by arguing counsel and within the Court by the Justices themselves. Binary analysis that treats Supreme Court rulings as either "wins" or "losses" misapprehends the nature of judicial rulings and the essential role served by legal reasoning. Not all losses are created equal. Some "losses" are the product of concessions made by the prevailing party that amount to significant wins by the purported losing party. And opinions that end by reversing favorable lower court judgments may nonetheless include language highly favorable to environmental plaintiffs in future litigation. To be sure, NEPA plaintiffs have not fared well before the Court and have lost some significant arguments there, but their record is far less dismal or one-sided as is routinely supposed. Finally, the NEPA cases do suggest that there is an increasing risk that the Court's docket and rulings are being skewed in favor of commercial interests because of the disproportionate ability of those interests to retain expert Supreme Court advocates. In recent years, the private Supreme Court Bar has enjoyed a significant resurgence, marked by the emergence of a significant group of highly effective lawyers specializing in Supreme Court advocacy. Although the development of such expertise is generally a positive development for the Bar and the Court, it makes it all the more important that such expertise be available to opposing viewpoints on important legal issues that the Court is deciding.