The Last Six Years Of Oral Arguments In The Supreme Court

Supreme Court cases involve many moving parts. Attorneys working on briefs can total more than 10 and from the briefs there is little available information to discern who put in the bulk of the effort.

One key can be the counsel of record, although this is a tricky proxy. The Solicitor General, for instance, is the counsel of record on all briefs from the United States, although this does not necessarily mean the Solicitor General was the main author on the briefs. 

Another way to gauge the lead attorneys on the case is to look to oral arguments. At very least these arguments put a face behind a side’s advocacy. 

The data for this post was compiled from a mix of SCOTUSBlog’s Statpacks, Oyez’s coverage of attorney arguments, and my own notes.

Between the 2015 term and the present (through the November 2021 arguments) there have been nearly 1,000 attorney arguments. Some attorneys, as shown below, took the bulk of the arguments. 

Including the arguments from members of the Office of the Solicitor General, 137 attorneys had multiple arguments during this period.  293 attorneys had one argument during these years.

Repeat experience definitely has its advantages when arguing before the Supreme Court (Epstein and Nelson, and I found this to be the case in separate papers). One of these is that clients will look to you as an experienced attorney, possibly more able to win a case. 

Twenty-one attorneys who did not work in the OSG during these years argued at least five times before the Supreme Court. The graph below shows these attorneys and the count of their oral arguments.

Paul Clement argued the most times with 30 total arguments. Neal Katyal was second with 21 arguments. Jeffrey Fisher had the third most with 18 arguments and Kannon Shanmugam had the fourth most with 15 arguments. 

A second graph shows the arguments from members of the OSG during this period. Since there was only one line item for each attorney, these may include non-OSG arguments as well if the attorney left the OSG during this period. 

Several members of the OSG argued 20 times during these years including career OSG attorneys Malcolm Stewart and Edwin Kneedler as well as Jeffrey Wall who was interim Solicitor General and Principal Deputy Solicitor General under President Trump. Trump’s Solicitor General Noel Francisco had the next most arguments with 18.

An interesting feature of attorneys arguing before the Supreme Court is that many previously held Supreme Court clerkships. The next graph shows the number of attorneys with oral arguments that clerked for a given justice.

The most arguing attorneys clerked for Justice Scalia, followed by Justices Thomas and Ginsburg. Some attorneys clerked for justices already retired for a number of years including Lewis Powell, Byron White, Warren Burger, Thurgood Marshall, and William Brennan (who actually had six prior clerks argue during this period.) 

Another facet of arguments that is often a point of interest is the gender distribution. Whether we look at the number of attorneys who argued or the number of total arguments, the gender balance is just about the same. The following graph shows the distribution based on the number of total arguments by men and women.

Almost 83% or 856 arguments came from men and about 17% or 180 came from women. Although these data are not broken down by year, the trend of many more male attorneys arguing than women seems to hold.

Just over a week ago, Andrew Trask asked me about the number of different attorneys that argue from each firm. This question goes to the extent of lawyer diversity before the Court and the willingness of top attorneys to let more junior attorneys have Supreme Court experience.

Since every line in the dataset is based on a specific attorney, my measure does not account for when attorneys switched firms during this period.

One example would be that Kannon Shanmugam is counted as an attorney for Williams & Connolly and not for Paul Weiss.

That said, this measure based on number of attorneys and not number of arguments gives a sense of the firms that had the most attorneys argue during this period.

Jones Day had the most attorneys with 11, followed by WilmerHale and Gibson Dunn with eight, and Kirkland & Ellis and the Office of the Federal Public Defender with seven each.

The data in this post shows the importance of several traits for oral arguments. It shows that there is a propensity for repeat oral arguers to have more arguments moving forward, although there is a non-insignificant number of attorneys with one argument each in the set.

Supreme Court clerkships are meaningful given the number of arguing attorneys who previously clerked. Certain firms take the bulk of arguments at the Supreme Court and so the notoriety of their advocates before the Court makes a difference. 

Finally, the disparity in the balance of men to women who argued during this period shows there is still an advantage for men over women in the opportunity for arguments. 

Some of this may shift over time. Justice Roberts, before his days as a justice wrote about the costs and benefits of attorneys with repeat experience arguing before the Supreme Court.

Roberts discussed the importance of attorneys that grasp the issues in a case on a local level, but also the role of repeat advocates that know how to frame arguments in ways that are most helpful to the justices. Only time will tell if these trends continue.