Oral Advocacy and the Re-emergence of a Supreme Court Bar

Abstract

Over the past generation, roughly the period since 1980, there has been a discernible professionalization among the advocates before the Supreme Court, to the extent that one can speak of the emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference—whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan—the second one—forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit.1 Justice Harlan lamented what he saw as a growing tendency among the bar “to regard the oral argument as little more than a traditionally tolerated part of the appellate process,” a chore “of little importance in the decision of appeals.”2 This view, he said, was “greatly mistaken.”3 As Justice Harlan told the bar, “[Y]our oral argument on appeal is perhaps the most effective weapon you have got.”4

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