Amici regularly participate in Supreme Court oral arguments. Recently these appearances have been dominated by attorneys from the United States Office of the Solicitor General (OSG). While OSG attorneys have historically argued more cases as amici than other attorneys, there is much less diversity in the last decade. In fact, the bulk of non-OSG amici that have argued in the past several years have been appointed by the Court to argue a certain position in a case. This article takes a brief look at the last thirty-five years of amici involvement in Supreme Court oral arguments to chart some of the trends, changes, and major players.
As Sean Marotta of Hogan Lovells pointed out – generally for amici to participate in oral arguments, parties have to cede time and parties are usually most willing to defer to the OSG. Still in recent years we have seen Stephen McCallister argue as an amicus for the state of Kansas and Miguel Estrada argue on behalf of Senate Republican Leader Mitch McConnell.
Interestingly three current Supreme Court Justices have also argued before the Supreme Court as amici. Chief Justice Roberts has twice, both times for the United States, Justice Alito also has twice, once for the United States and once for the National Labor Relations Board, and Justice Ginsburg has for the ACLU.
Over time there have been distinct shifts in amici oral argument practice. One shift has been an increase in participation over time, especially in relation to the Court’s caseload. The number of amici that orally argued since 1980 as well as the total number of oral arguments over this period are both graphed below (total oral argument count provided by the FJC).
The graph shows a decline in 2015 not necessarily because of a drop in oral arguments but because not all of the cases granted in 2015 have yet to be argued. Two things to note in this graph are the slight increase over time in the number of cases that amici orally argued and the drop off over time in the total number of orally argued cases. This is the reason that amici are now participating in a larger proportion of the Court’s oral arguments.
Amici are either invited to participate in oral argument or given leave of court to participate. There has been around one invited amici on average over the past thirty-five years. Looking at the most regular amici participants at oral argument, the vast majority is composed of attorneys from the OSG. The figure below shows amici that have argued ten or more Supreme Court cases (as amici).
Edwin Kneedler who has argued over 100 cases before the Court argued the most cases as an amicus since 1980. Several of these attorneys including Lisa Blatt, Paul Clement, and Gregory Garre have argued for the OSG as well as in private practice.
In terms of amicus interests, the United States is by far the most dominant. Of the 1003 amici arguments before the Supreme Court since 1980, 877 were on behalf of the United States by OSG attorneys. The following figure shows other amicus interests with more than one amicus oral argument since 1980.
SEC attorneys argued the most cases during this period. Other government agencies’ attorneys such as from the NLRB, FCC, and EEOC as well as interest group attorneys from the NAACP and ACLU have argued several cases as amici. States’ attorneys have also argued several of these cases. The amici participation in the above figure tends to be from more than a decade ago. States’ presence as amici were more prevalent in the mid-2000’s with California, Kansas, South Dakota, Tennessee, New York, and Louisiana attorneys all arguing cases as amici between 2003 and 2005. The SEC’s larger role as an amicus was in the early 1990’s with one case in 1993, two in 1992, one in 1990, and one in 1989.
The next figure has the rest of the amici interests that each had one attorney at oral argument since 1980.
The majority of these parties are states, although here we see organizations as well such as the Creditors of NextWave Communications and the Federal Home Loan Bank Board.
The group of amici that argued in Supreme Court used to be made up of a more diverse contingent of attorneys and interests. Like Supreme Court attorneys in general, the group has consolidated to a notable few. In the case of amici, the few are now almost entirely OSG attorneys with a few exceptions. This comes at a time when the number of amici participating at oral argument is up and the number of total cases orally argued is down. In this way OSG participation at oral argument appears to be another area of Supreme Court practice that is dominated by a select few elite attorneys and groups.
On Twitter: @AdamSFeldman
Research assistance provided by: @SamuelPMorse
This post utilized LexisNexis searches to locate when amicus participation in oral argument was mentioned in the counsel line to locate relevant instances. Based on this we relied on LexisNexis’ coding to properly document these instances.