The Path To Becoming A Supreme Court Advocate

By Amanda James and Annie Pancak | October 16, 2018, 3:09 PM EDT

At first glance, the pedigrees of the men and women who have dominated oral advocacy at the U.S. Supreme Court for the last decade seem largely indistinguishable.

Almost all have served in the Office of the Solicitor General. Half of the men and half of the women went to Ivy League law schools. Most have clerked for a Supreme Court justice, or at least a circuit court judge.

But the men have argued far more cases than the women. The most frequent advocate, Paul Clement, handled 43 arguments in the last 10 terms. The top female advocate, Nicole Saharsky, argued 27.

What accounts for the disparity? For one, the level of seniority held in the SG’s office, which represents the interests of the federal government before the court, seems to be playing a role. All but one of the men and one of the women worked in the office at some point in their career.

But not all positions are created equal. Of the men who worked in the SG’s office, seven out of 10 served in a senior position, either as solicitor general — a position, dubbed the “10th justice,” that is appointed by the president and confirmed by the Senate — or deputy solicitor general. Three are current deputy solicitors general.

In contrast, nine out of 10 women served as assistants to the solicitor general, including two who currently serve in that role. Only two of the men who argued most frequently in the last decade served in assistant roles.

For most of the women on this list, a recent stint in the solicitor general's office provided a significant boost to their scorecard of Supreme Court arguments. Most of the cases argued by the women were argued while they served in that office. The tallies for Lisa Blatt, Kathleen Sullivan and Elaine Goldenberg are the only ones that include cases argued while they were in private practice.

On average, the men who’ve argued the most cases are also further along in their careers than the women and have been appellate advocates longer. The average number of years out of law school for women is 19.6 years; for men, it’s 32.7 years.

The men are also slightly more likely to have held highly competitive Supreme Court clerkships. Seven out of 10 men clerked for a high court justice, while five of the top 10 female advocates did. All of the women held clerkships in the circuit courts.

Here’s more on how the top advocates stack up.

Methodology: Law360 counted all advocates who appeared in the transcript of each oral argument before the U.S. Supreme Court from the 2008 term through the 2017 term. Some cases have more than one oral argument. This data counts each of those arguments separately.

Amanda James and Annie Pancak are data reporters for Law360 who also contributed to the first installment in this special report. Additional reporting and data analysis by senior data reporter Jacqueline Bell. Graphics by Chris Yates. Editing by Jocelyn Allison and Rebecca Flanagan.

Correction: A previous version of this article did not include a complete list of all the female attorneys in the top ten who have argued cases while in private practice. The error has been corrected.  

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