SUPREME COURT BAR

The bar of the Supreme Court is not cohesive, and it is not active in any organizational sense. The number of lawyers admitted to practice before the Supreme Court is greatly in excess of the number who actually appear there.

The first rule of the Supreme Court with respect to admissions was adopted on February 5, 1790, three days after the Court opened in New York. The Court then made the provision, which continues to this day, that applicants for admission shall have been admitted "for three years past in the Supreme Courts of the State to which they respectively belong." The formula also provided, then and throughout the nineteenth century, that the private and professional character of the applicants "shall appear to be fair." As the American language evolved, the word "fair" acquired a dual meaning, and the use of the phrase in oral motions sometimes produced a laugh in the courtroom. So the wording was changed, and for most of the twentieth century the sponsor was required to say that he "vouched" for the applicant. Under the rule as it stands now, he affirms "that the applicant is of good moral and professional character." All motions for admissions were made in open court until about 1970. Now the whole procedure can be done by mail.

Under the first rule for admission, the applicant was required to elect whether he would practice as an attorney (office lawyer) or as a counselor (appearing in court), and he could not practice as both. If this rule had remained in effect (it was eliminated in 1801), the long-established division in England between solicitors and barristers would have been perpetuated in the United States and the bar of the Supreme Court would have been drawn from a much narrower group.

There is no published list of the members of the bar of the Supreme Court. Indeed, no one knows how many members there are. The clerk of the Supreme Court maintains a list of those admitted since October 1925. In early 1990 the number of those who had been admitted was about 185,000. But there is no record of those who have died or retired from active practice (though the list does record 800 names of lawyers who have been disbarred). By an estimate there are now 75,000 lawyers in the United States who have been admitted to practice before the Supreme Court and thus are members of its bar. No more than 300 of these actually present arguments before the Supreme Court in any year, and there are probably fewer than 5,000 living lawyers in the country (out of a total of close to 700,000 lawyers altogether) who have ever made a personal appearance before the Court.

The first member of the bar of the Supreme Court was Elias Boudinot of New Jersey, who was admitted to practice in February 1790. There was, of course, no one to move his admission. No procedure had yet been established for the filing of credentials. After a short interval, the Court turned to the attorney general, edmund randolph. Though he was never admitted to practice before the Court, he was treated as an officer of the Court. Before long, the practice was established of admission to the bar on motions of persons already admitted.

During the first ten years of its existence, the Supreme Court heard very few cases. alexander hamilton made his sole appearance before the Court in the case of hylton v. united states in 1796. john marshall made his sole appearance before the Court in ware v. hylton (1796). This was the famous British debts case, and Marshall was unsuccessful.

As time passed, and the country developed, the number of cases before the Court steadily increased. Thomas A. Emmet arrived in New York from Ireland in 1804 and was soon established as a leading lawyer. He appeared before the Supreme Court for the first time in 1815. The culmination of his career was his argument in the famous steamboat case of gibbons v. ogden (1824). Another of the early leaders was Littleton W. Tazewell of Virginia, who specialized in criminal law and admiralty. daniel webster wrote of him, "He is a correct, fluent, easy & handsome speaker and a learned, ingenuous & subtle lawyer"—a standard to which any Supreme Court lawyer might aspire. Others who appeared during the early years of the nineteenth century were luther martin, william pinkney, and Francis Scott Key of Maryland; Roger Griswold of Connecticut; Edmund J. Lee and william wirt of Virginia; john quincy adams, Samuel Dexter, levi lincoln, and Rufus G. Amory of Massachusetts; jared ingersoll and horace binney of Pennsylvania; and Edward Livingston of New York and Louisiana.

Daniel Webster made his first appearance in 1814. Early in his career he argued dartmouth college v. woodward (1818). The decision of the Court in this case, announced in 1819, relied on the obligation of contracts clause in the Constitution to uphold the charter of Dartmouth College against efforts of the legislature of New Hampshire to change it. The argument in Dartmouth College lasted for three days and was a great social event in Washington. Webster concluded with an emotional peroration that has become part of American folklore. He is supposed to have said, "It is … a small college. And yet there are those who love it." But there is no contemporaneous record of this passage. It first appeared in a eulogy on Webster spoken by Rufus Choate in July 1853, thirty-five years after the argument. Choate's source was a letter written to him in 1852 by Chauncey Goodrich, a professor at Yale University, who attended the March 1818 argument.

Webster (perhaps aided by geography and travel limitations of the times) was for more than thirty years the acknowledged leader of the Supreme Court bar. Indeed, he still holds the record for arguing the most cases before the Court—more than three hundred of them. The second largest total of cases argued was also achieved at this time by a little-known figure, Walter Jones, a District of Columbia lawyer. He appeared in more than two hundred cases before the Court. The next highest total of arguments, and the highest total in the twentieth century, was made by john w. davis, who was active from about 1910 to 1954. He argued a total of 141 cases. Davis was solicitor general of the United States from 1913 to 1918 and in 1924 was the Democratic presidential candidate. Today no one makes such a high number of arguments unless he is a solicitor general or a member of the staff of the solicitor general's office.

The first black lawyer to be admitted to the bar of the Supreme Court was Dr. John S. Rock, who was born of free parents in New Jersey in 1825. He was admitted on February 1, 1865, just short of his fortieth birthday. Before then, he had been a teacher, a dentist, and a doctor. He had moved to Boston in 1853 and was one of the founders of the Republican party in Massachusetts. In 1858 he wanted to go to France for medical treatment, but he was refused a passport on the ground that he was not a citizen. The Massachusetts legislature then passed a law providing for state passports, and this was accepted in France.

A year or so later, Dr. Rock returned to Boston where he read law. He was admitted to practice in Massachusetts in September 1861 and in the Supreme Court in 1865, shortly after the appointment of salmon p. chase as Chief Justice. It is interesting to note that this came before the termination of the civil war and before the adoption of the Thirteenth, Fourteenth and Fifteenth amendments—and with dred scott v. sandford (1857) still on the books. As the New York Times reported, "By Jupiter the sight was good." Rock's admission was moved by Senator charles sumner. The newspaper reporter observed that the "assenting nod" of the Chief Justice "dug … the grave to bury the Dred Scott decision."

The next of these significant events was the admission of the first woman to the Supreme Court bar. In bradwell v. illinois (1873) the Supreme Court refused to interfere with the action of the supreme court of Illinois, which denied admission to Myra Bradwell, publisher of a successful legal newspaper in Chicago. Bradwell relied in the Supreme Court on the privileges and immunities clause of the recently adopted Fourteenth Amendment, but persuaded only Chief Justice Chase.

Less than seven years later, however, Belva A. Lockwood became the first woman admitted to practice before the Supreme Court. This was on March 3, 1879. So quick was the change of view that this action evoked no opinion from any member of the Court. Indeed, Myra Bradwell herself, who had been denied admission in 1872, was finally admitted when she applied again in 1892.

Despite this opening of the door, it took fifty years, or until 1929, before the number of women admitted to the bar of the Supreme Court reached a total of one hundred. Some of the early admittees had distinguished careers in the law. These included Florence Allen, who became the first woman judge of a constitutional federal court; Mabel Walker Willebrandt, who was assistant attorney general under President herbert c. hoover; and Helen Carloss, who had a long and distinguished career in the Tax Division of the Department of Justice. The great increase in the number of women lawyers, however, has occurred in the past fifteen years. In another fiteen years, if present trends continue, they will constitute perhaps thirty percent of the members of the bar of the Supreme Court.

There have been periods when relatively few lawyers were widely recognized as leaders of the bar practicing before the Supreme Court. There were the orators of the nineteenth century, starting with Daniel Webster and continuing through John G. Johnson of Pennsylvania. There was such a bar in the 1920s and the 1930s, when charles evans hughes, Owen D. Roberts, John W. Davis, George Wharton Pepper, and William D. Mitchell made frequent appearances before the Court. By this time, oratory had become passé. The presentations were less flowery, but they were mellifluous. Davis showed great skill in persuasion, though his record of wins over losses was not especially high, reflecting the fact that the cases in which he was retained were often especially difficult. There is one case that brought together three of these giants. In United States v. George Otis Smith (1932) the question was whether the Senate could reconsider its confirmation of a presidential nomination after the President had acted on it by making the appointment. The Senate retained Davis as its counsel. Attorney General William D. Mitchell appeared for the United States, essentially representing the President, and George Wharton Pepper represented Smith, the nominee. That argument was one of the high points of advocacy in this century.

One group has long provided the backbone of the Supreme Court bar: the solicitor general and his staff, and his associates in the Department of Justice. This office has long maintained a high standard and a great tradition. It appears, in one way or another, in nearly half the cases heard on the merits by the Court and in a high percentage of all applications for review.

A considerable number of cases are now brought to the Supreme Court by parties representing particular interests. The National Association for the Advancement of Colored People was first represented by one of the country's great lawyers, charles h. houston—work carried on with great ability by thurgood marshall. Other similar work has been done by lawyers representing groups interested in the rights of women, in other civil rights, in the environment, and in other causes.

The bar of the Supreme Court can never be assembled, nor is it possible to take a consensus of the bar. It is clear that it plays an important role in the work of the Court. Yet the demands on the Court are such that the bar has difficulty in making its full contribution. In 1935, arguments were heard five days a week for a total of about seventy-five days a year. Now the Court hears arguments on about forty-five days during the year. Fifty years ago, the time made available for oral argument was an hour on each side, and there were frequent substantial allowances of additional time. Now the time allotted is thirty minutes on a side, and additional time is rarely granted. This inevitably presents problems for oral arguments and requires a wholly different type of argument from that customary even fifty years ago. The advocate today can rarely present his case as a case. He has to pick out certain salient points and hope that with questioning by the justices he will still have time to deal with the matters he regards as vital. The printed briefs filed by counsel today appear to be much better than they were fifty years ago, probably more greatly improved than is commonly recognized. But oral argument remains a difficult and tantalizing field.

The Supreme Court moved into its new building in 1935. According to newspaper articles, the first words spoken by Chief Justice Hughes in the new courtroom were "Are there any admissions?" Thus was the bar recognized, and thus has it been recognized at every session since.

The bar of the Supreme Court, diverse and divided as it is, plays an important part in the work of the third branch of American constitutional government. Though Alexander Hamilton called the judiciary "the least dangerous branch," its role is central to the effective operation of our federal system. If the work of the Court is central to American government, the efforts of the Supreme Court bar may well be regarded as an essential buttress to the Court.

Erwin N. Griswold
(1992)

(see also: Supreme Court's Work Load; Women in Constitutional History.)

Bibliography

Contee, Clarence G. 1976 The Supreme Court Bar's First Black Member. Pages 82–85 in Supreme Court Historical Society Year Book, 1976. Washington, D.C.: Supreme Court Historical Society.

Harbaugh, William H. 1973 Lawyer's Lawyer. New York: Oxford University Press.

O'D onnell, Alice L. 1977 Women and Other Strangers Before the Bar. Pages 59–62 in Supreme Court Historical Society Year Book, 1977. Washington, D.C.: Supreme Court Historical Society.

Warren, Charles (1908) 1970 History of the Harvard Law School and of Early Legal Conditions in America. New York: DaCapo.

——(1911) 1980 A History of the American Bar. Boston: Longwood.

White, Edward G. 1988 The Marshall Court and Cultural Change, 1815–34. New York: Macmillan.