Shift Toward Specialized Advocacy in Supreme Court Oral Arguments

A recent study by Lee Epstein, Eric A. Posner, and Edison Wu documents a marked transition in how the United States Supreme Court conducts oral arguments. The authors report that a relatively small pool of polished lawyers now dominates the courtroom, replacing the historically broader mix of “sole practitioners with battered briefcases” who once traveled from distant locales to argue landmark cases. Chief Justice John Roberts, speaking at a judicial conference in 2016, expressed mixed feelings about this development, noting that the court loses some “color and texture” when the same advocates appear repeatedly, even as it benefits from their expertise.

New York Times

The court’s oral-argument routine remained largely unchanged for five decades until the spring of 2020, when the COVID-19 pandemic forced justices to conduct hearings by telephone for 18 months. In response, the Court revised its questioning style, opened proceedings to public listening, and experimented with new procedural formats. When the justices reconvened at the bench in October 2021, these adaptations had already begun reshaping the traditional ceremony.

New York Times

The Epstein-Posner-Wu analysis covers oral arguments from 2005 through 2026. It finds that the average total word count per argument has risen, and each justice now speaks more words per case than in earlier years. The study also notes that the concentration of advocacy among a limited group of specialist lawyers has intensified, a trend that coincides with the post-pandemic procedural reforms.

New York Times

Chief Justice Roberts’ 2016 remarks underscore a tension between preserving the diversity of advocacy styles and leveraging the advantages of seasoned specialists. The study’s authors suggest that while the court benefits from the technical proficiency of repeat advocates, the reduced variety may diminish the broader experiential insights that once enriched judicial deliberations.

New York Times