Advocacy Matters. Transforming the Court by Transforming the Bar
RICHARD J. LAZARUS
The first Monday in October is typically the first regularly scheduled day of oral arguments before the Supreme Court of the United States. The Court opened its October 2012 term by hearing oral argument in two cases. The six advocates before the Court on that first day of argument underscore the emergence of a modern Supreme Court Bar whose expertise in Supreme Court advocacy has quietly transformed the Court’s docket and its substantive rulings. In sharp contrast to the typical attorney appearing before the Justices throughout much of the twentieth century, each of the six attorneys was an experienced Supreme Court advocate. The attorney with the least experience was making his sixth oral argument before the Court. Four of the other attorneys would appear before the Court on multiple occasions that term and had appeared more than twenty other times during their careers. They included the Solicitor General, an Assistant to the Solicitor General, and two others with more than twenty oral arguments to their credit.
No doubt today’s Supreme Court Bar pales in several respects in comparison to the Bar’s heyday in the early nineteenth century when a few extraordinary attorneys dominated oral argument before the Court. Arguing as many as three hundred cases, Walter Jones, Daniel Webster, and William Wirt, among several others, presented argument in some of the young nation’s most famous cases.
The Supreme Court Bar today is certainly far less flamboyant—one is unlikely to see a prominent advocate nowadays arguing, like William Pinkney, with “amber- colored doeskin gloves” on, or, like Luther Martin, intoxicated and wearing soiled, old-fashioned clothes. Perhaps because today’s Supreme Court advocates lack any comparable color, what has gone wholly unrecognized is how the reemergence of a Supreme Court Bar of elite attorneys is quietly transforming the Court and the nation’s laws. The influence of expert advocates is likely greatest at the jurisdictional stage when the Court’s resources are stretched the most and the Court most dependent on the skills of the advocates in sifting through the thousands of petitions seeking review. But there is good reason to believe that their influence reaches the Court’s rulings on the merits as well.
This chapter explores the emergence of a new elite Supreme Court Bar and the resulting transformation of the Court, its plenary docket, and its rulings. It first describes the reemergence in recent decades of an elite group of private- and public-sector lawyers who practice before the Court. The second part considers several possible explanations for the rise of the modern Bar, the significance of the Bar’s increasing domination of advocacy before the Court, and its effect on the remarkable success recently enjoyed by the business community in both obtaining Court review and then in prevailing on the merits.
-  The author would like to express special gratitude to Andrew Peterson, Case Western ReserveUniversity School of Law Class of 2017 for his skill in updating some of the statistics for this chapter.This chapter is based on an article previously published by the author. See Richard J. Lazarus,Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming theBar, 96 Geo. L. Rev. 1487 (2008).
-  The six attorneys were Jeffery Fisher, David Frederick, Curtis Gannon, Paul L. Hoffman,Kathleen Sullivan, and Donald Verrilli.
-  David C. Frederick, Supreme Court Advocacy in the Early Nineteenth Century, 30 J. Sup. Ct. Hist.1, 4-5 (2005).
-  G. Edward White, The Marshall Court and Cultural Change, 1815-1835, in 3 History of theSupreme Court of the United States 230, 237 (Paul A. Freund & Stanley N. Katz eds., 1988)(internal citations and quotations omitted).