Chief Justice John Roberts has said that he sometimes misses the old days, when “the sole practitioner with the battered briefcase” would arrive in Washington from far away to argue a once-in-a-career case at the Supreme Court.
These days, arguments are dominated by a small number of polished lawyers who specialize in Supreme Court advocacy. A new study prepared for The New York Times confirmed the change.
The chief justice, speaking at a judicial conference in 2016, said he had mixed feelings about the development.
“You lose a little bit of the color and texture of an argument when it is the same people,” he said, “although we benefit a great deal from having experts before us.”
Chief Justice Roberts was himself once such an expert, having argued 39 Supreme Court cases as a lawyer in the solicitor general’s office and in private practice.
He was, people who saw him in action said, very good. Like the best Supreme Court lawyers, he understood the justices’ habits of mind, the interlocking doctrines that shape the law and the rapid-fire rhythms of the arguments.
He was also a student of the Supreme Court bar. In 2004, the year before he was appointed to the court, he gave a speech to the Supreme Court Historical Society exploring what he called the “dramatic rise in the number of experienced Supreme Court advocates appearing before the court.”
One lawyer stands out
The new study examined the roughly 16 million words uttered during 1,425 oral arguments from October 2005, just after Chief Justice Roberts joined the court, to April 2026, the most recent time that the court heard arguments.
I wrote about some of the study’s other findings last week, including a spike in the length of arguments and the leading role played by the court’s newest member, Justice Ketanji Brown Jackson.
That piece was mostly about the justices. But the study included interesting details about lawyers, too. Roughly 1,300 of them appeared before the justices in those years. Just 20 of them accounted for more than a quarter of the words spoken by lawyers, the study showed. And one of them stood out.
Paul Clement, who served as solicitor general in the George W. Bush administration before going into private practice, argued 101 cases over those years, a figure that far outpaces other lawyers. His biggest cases included ones on the Affordable Care Act, partisan gerrymandering and the Second Amendment.
He was especially active in the term that ended in June, having appeared before the justices nine times.
Clement, who declined to comment, uttered 363,579 words over the 21 terms covered by the study, nearly double those of the runner-up, Jeffrey Fisher. He rivaled the justices themselves for the number of words spoken at arguments. He was the only lawyer among the top 10 speakers.
A ‘very troubling’ trend
In his 2004 lecture, Chief Justice Roberts, then an appeals court judge, also discussed the role played by lawyers in the solicitor general’s office, the elite unit of the Justice Department that represents the federal government in the Supreme Court. They were, he noted, “appearing far more frequently before the Supreme Court than they did a generation ago.”
Indeed, he found, lawyers from that office took part in some 60 percent of cases in 1980 and more than 80 percent in the early 2000s. He expressed reservations about the development, at least in cases where the government lawyers appeared as friends of the court, or amici, offering the administration’s views even though they did not represent a party.
The court very rarely grants argument time to other amici. But it routinely lets the solicitor general’s office participate, which Chief Justice Roberts suggested gave it a preferred position and unwarranted clout. “As the discernible federal interest in a matter before the court wanes,” he said, “concern about the role being played by the government increases.”
He said it risked turning the solicitor general’s office into “a sort of super law clerk,” which he found “very troubling.”
These days, the solicitor general’s office is even more active, according to the study, which was prepared by Lee Epstein of Washington University in St. Louis and Eric Posner of the University of Chicago. In the last five terms, the office’s lawyers participated on average in 86 percent of arguments. In about half of them, the government lawyers appeared as a friend of the court.
In his 2004 lecture, Chief Justice Roberts ended up endorsing what was then an emerging specialized Supreme Court bar.
“A well-argued case will not necessarily be well decided; sometimes the judges get in the way,” he wrote. “But there is a significant risk that a poorly argued case will be poorly decided.”
Other Things Worth Knowing About
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In April, by a 9-to-8 vote, the Fifth Circuit upheld a Texas law requiring every public classroom in the state to display the Ten Commandments. On Monday, parents and children represented by the American Civil Liberties Union asked the Supreme Court to hear their challenge to the law. A recent paper from Samuel Bray, Nathan Chapman and Brent Strawn concluded that the law violates the First Amendment’s prohibition of government establishment of religion. The justices will decide whether to hear the case in the coming months
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Jonathan Gould and Daryl Levinson, professors at New York University Law School, have a new paper that explores the differences between using government power for governing and for campaigning. Erosion of the divide matters, they write, “with consequences ranging from ineffective governance and unmitigated partisan warfare to democratic decline and authoritarian repression.”
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Fix the Court, an advocacy group that seeks more openness at the Supreme Court, released an updated list of gifts received by the justices since 2004, drawing from various public sources. It includes 515 gifts with an estimated total value of $3.6 million.
Mailbag
Where Are the Emoluments Lawsuits?
Why is there so little discussion about the emoluments clause of the Constitution? Is there a statute of limitations? Who has the authority to bring suit, if anyone? — James Fishman
In President Trump’s first term, several lawsuits accused him of violating the Constitution’s emoluments clauses by doing business with entities controlled by foreign and state governments. The suits focused on his hotels and restaurants in New York and Washington.
In hindsight, in a second term that has included crypto windfalls and the gift of a Qatari jet worth hundreds of millions of dollars, those suits may seem a little quaint. But the same principles apply and the dearth of litigation does seem puzzling.
A little background. “Emolument” means compensation for labor or services. There are two clauses dealing with emoluments in the Constitution, and both seem aimed at forbidding corrupt transactions.
One provision, the domestic emoluments clause, bars the president from receiving “any other emolument” from the federal government or the states beyond his official compensation.
The other provision, the foreign emoluments clause, bars anyone holding a federal “office of profit or trust” from accepting “any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” without the consent of Congress.
In the lawsuits filed in Trump’s first term, federal appeals courts in New York and Virginia ruled against him on the preliminary issue of whether the plaintiffs had standing to sue.
Days after Trump left office in 2021, the Supreme Court issued brief orders, wiping out those rulings and dismissing them as moot. That was a lost opportunity and suggested a de facto statute of limitations: the end of a presidential term.
In his current term, there has been one notable suit. In May, individuals and a business in Miami accused Trump of violating the domestic emoluments clause by accepting valuable property there for a presidential library that is likely to include for-profit businesses.
Trump moved to dismiss the case last week, arguing that the plaintiffs “flunk bedrock standing requirements.”
Why haven’t there been a flood of such suits? I can think of three possible reasons. The standing hurdle is a serious one. There may not be time to wrap up a litigation before Trump leaves office again. And potential plaintiffs may fear retaliation should they sue.
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
A.I. Stumbles in SCOTUS Predictions
How good is artificial intelligence at guessing how the Supreme Court will rule? Not especially.
A new study asked four of the leading A.I. models to predict what the court would do in every argued case last term. For each case, the models could draw on existing data and were provided with the lower court’s decision, the parties’ briefs, selected supporting briefs, as well as a transcript of the oral argument.
“The models systematically overpredicted ideological division,” according to the study, which was conducted by Hayley Stillwell of the University of Oklahoma and Sean Harrington of Arizona State University. In particular, the models consistently expected the three Democratic appointees to dissent — concluding they would do so far more often than they actually did.
A possible explanation, the scholars wrote, was the information environment from which the models learned. “Supreme Court decisions that receive the greatest public attention,” they said, “are often those framed as ideological confrontations between conservative and liberal justices.”
“Prediction,” the authors concluded, “is not the same thing as judgment.”
Please send me your comments on oral arguments, emoluments, predictions or anything else at [email protected]. See you next week. — Adam
The post A Few Expert Lawyers Dominate Supreme Court Arguments, a New Study Finds appeared first on New York Times.
