Oral Advocacy and the Re-Emergence of a Supreme Court Bar
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Oral Advocacy and the
Re-emergence of a Supreme
Court Bar
JOHN G. ROBERTS, JR.*
Over the past generation, roughly the period since 1980, there has been a discernible pro-
fessionalization 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.' 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
By the time he made his remarks to the
Fourth Circuit Judicial Conference meeting in
Asheville, Judge Harlan had become Justice
Harlan, and his remarks included reflections
on not only his time on the Court of Appeals
but also a few months on the Supreme Court as
well. My experience has been limited to what
Article III of the Constitution refers to as an
inferior court-surely James Madison's fa-
bled gift for finding just the right word failed
him in that instance. Oral argument before a
court of appeals and the Supreme Court differs
in some significant respects. On the court of
appeals, we hear arguments in panels of three
and hear many more cases than the Supreme
Court hears. We therefore give the parties less
time for oral argument. Rather than the half-
hour per side that is typical in the Supreme
Court, we often budget ten or fifteen minutes
a side. But at the same time, because we sit in
groups of only three, we are able to be a lit-
tle more flexible, keeping counsel as long as
we think they are being useful-an additional
ten minutes, fifteen minutes, even a half-hour.](ViewImageLocal?handle=hein.journals/jspcth30&div=10&collection=&method=preview&ext=.png&size=3)
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Oral Advocacy and the Re-Emergence of a Supreme Court Bar
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