After the “A Closer Look” section of our May 8 newsletter indicated that Chief Justice John Roberts “argued 39 cases before the Supreme Court, winning 25 of them,” we got this question: Is it typical that Justices argue cases before the Supreme Court before being appointed as a Justice?
In short, not necessarily. In addition to Roberts, three other current justices – Samuel Alito, Elena Kagan, and Brett Kavanaugh – argued cases at the court before joining it.
Alito argued 12 cases, winning 10. Perhaps most memorably, he stepped up to argue one with just two days’ notice after a death in the family of the lawyer who had been slated to argue.
While serving as the U.S. solicitor general during the Obama administration, Kagan argued six cases before she was elevated to the Supreme Court. Her first argument in any court was the landmark Citizens United v. Federal Election Commission, in which the justices struck down restrictions on independent campaign contributions by corporations.
Kavanaugh argued one case, in 1998: Swidler & Berlin v. United States, in which he (on behalf of Ken Starr and the Office of Independent Counsel in the Whitewater investigation) asked the court to hold that an attorney can be required to turn over notes he took during an interview with a client after the client’s death. By a vote of 6-3, the court rejected that argument, ruling that the attorney can refuse to turn over those notes.
Some other justices in the past few decades have also argued before the court. Justice Ruth Bader Ginsburg argued six times, in cases involving gender discrimination law, between 1972 and 1978.
And Justice Thurgood Marshall argued before the court 32 times, winning 29 of those cases, including the 1954 landmark decision in Brown v. Board of Education, striking down the principle of “separate but equal” facilities in education.
But the justice with the most arguments before the court was Justice Robert Jackson, who argued there a whopping 44 times, winning 38 of those. Jackson was also the last justice who did not have a law degree. He did not go to college at all; after completing one year at Albany Law School, he served as an apprentice with a practicing lawyer before being admitted to the New York bar at the age of 21.
