Supreme Court litigation is typically handled by a small group of lawyers. Most are male who have clerked on either the Supreme Court or lower courts and attended Harvard, Yale or Stanford law schools.
As members of a highly exclusive club, these advocates possess a wealth of talent that many others simply can’t. So how are these elite attorneys getting so many arguments opportunities?
Number of Justices
There are few attorneys who get to present cases before the Supreme Court, in part due to its justices only accepting approximately 1% of petitions filed with them. Of those that do get this opportunity, typically those from top law schools and with extensive litigation experience receive priority consideration.
These star lawyers could have an enormous effect on Court decisions; as there are only a small group of lawyers appearing before Justices regularly and they learn which ones they can rely on to report facts and prior law accurately.
All but one of the current Justices (Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Amy Coney Barrett) obtained their Juris Doctor from an Ivy League institution; Clarence Thomas studied at Notre Dame before attending Yale law school.
Number of Lawyers
According to the ABA National Lawyer Population Survey, over 1.3 million lawyers reside in the US today. Since 2000, this number has continued to increase gradually – although growth may have slowed compared with prior decades.
As only a limited group of lawyers are permitted to argue before the Supreme Court, no definitive answer exists for this question. Top advocates often win multiple arguments before being elected into this elite club of SCOTUS repeat players; these paths include attending top law schools (Harvard or Yale), clerking at the Court and having private practice experience.
The top ten Supreme Court litigators by appearances are all male. Many work for the Office of Solicitor General, which represents the federal government before the Court. Their cases typically revolve around federal statutes and regulations; FindingLaw reports that their hourly rates exceed what an average American family earns weekly.
Number of Cases
Supreme Court decisions often establish precedent that all lower courts must follow, which is why the Court often accepts cases with “circuit splits,” where different lower courts have interpreted laws differently.
Justices do not review every petition that comes before them individually, but each will read several and assign one of their clerks to write an individual memorandum about its merits. Justices tend to favor those advocates who regularly appear before the Court.
Of the nation’s top litigators, most work for the Office of the Solicitor General. Private-side attorneys also frequently argue cases before the Supreme Court; one hour with one of their best advocates could cost more than an average family earns in one week! Furthermore, top-rated lawyers tend to be effective at persuading Justices to adopt their language into court opinions.
Number of Oral Arguments
Oral arguments are public sessions where attorneys from both sides present their cases to the Justices of the Supreme Court for consideration and decision. On average, two cases per day are heard and each counsel has 30 minutes to present their case before oral arguments conclude and an opinion is written by Justices.
Every year, the Justices receive approximately 130 petitions for review and grant approximately one percent for full oral argument. Oral arguments give Justices an opportunity to discuss the merits of each case while reviewing briefs and asking questions of counsel involved.
Few lawyers ever get to argue before the United States Supreme Court; Mitu Gulati and Tracey George of the University of Virginia School of Law have conducted extensive data analysis on advocates who appear before it; their aim was to assess trends and patterns to see how difficult it would be for an attorney to appear in front of SCOTUS; they also examined routes leading to such appearances; what traits make one suitable; as well as identifying paths leading to success on this path.