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February 4, 2022

By James M. Thunder*

*Attorney, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC. B.A., University of Notre Dame; M.A., University of Virginia; J.D., Georgetown University Law Center. Co-author (and K. Chris Todd), The United States Attorneys for the District of Columbia 1801-2022 (49 illustrated biographies; forthcoming from the Historical Society of the D.C. Circuit); principal contributor, K. Chris Todd, ed., 225 Years (1789-2014): The United States Attorneys for the Southern District of New York (2014) (60 illustrated biographies).

This report for Oyez and the Cornell Legal Information Institute ("LII") ranks advocates before the United States Supreme Court based on their number of oral arguments (including rearguments), with a threshold for eligibility of 50 arguments. To allow future researchers to add, subtract or modify the research, I provide, for each advocate, a research memorandum, a spreadsheet identifying arguments/cases, and LexisNexis search results.

Background

In researching a book consisting of the biographies of the 49 men and women who have served as United States Attorney for the District of Columbia since the first in 1801, I learned that three had appeared a very large number of times in the United States Supreme Court: Walter Jones with as many as 317, and Francis Scott Key and Thomas Swann with about 150 each. The current quest started with an attempt to ascertain their numbers with precision and listing each case so that any debate over the number could be resolved by referring to specific cases. ¹ The next step was to determine where in the pantheon they were ranked. How did these three compare, for instance, to William Wirt, Daniel Webster, or John W. Davis?

After I did some research on over 50 advocates, tentatively identifying Jones, Key and Swann in the top eight, I provided a 40-page memorandum to the Cornell LII in June 2020 to see if it would be interested in providing assistance in refining and completing the research and publicizing the results. The Cornell LII, which sponsors Oyez, paid seventeen students, mostly Cornell Law students, on an hourly basis to assist. Their work has been acknowledged, by name of student, in Appendix 5.

Identifying Candidates to Be Researched

My June 2020 memorandum identified 53 advocates who were candidates for research. These names were generated from historical listings of top advocates (described below) and a listing of all Attorneys General and Solicitors General. We found more candidates as they came to our attention while reviewing Supreme Court cases associated with advocates from our initial list. We now have 67. Surely, we may have missed some and welcome suggestions.

In this connection, I want to make you aware of many advocates whom we thought might have made the 50-argument threshold but did not. I provide them in alphabetical order in Appendix 1. Unless their numbers were close to 50, their numbers were not as vigorously reviewed as with the others.

A Review of Attempts to Crunch the Numbers

I list, in chronological order, attempts by prior researchers/historians to quantify the number of oral arguments by various advocates.

Baxter’s 1966 Biography of Webster

In Maurice G. Baxter’s 1966 biography of Daniel Webster, Daniel Webster And The Supreme Court, Baxter stated that, based on a 1948 dissertation, Jones argued 317 cases. ² As to Webster himself, Baxter listed Webster’ cases ³. He gave his total, 168, not in his introduction to his list, but in his Preface. ⁴

Harbaugh’s 1973 Biography of John W. Davis

In his 1973 biography of John W. Davis, Lawyers’ Lawyer: The Life Of John W. Davis, Professor Harbaugh gave numbers for Jones, Webster and Davis. For Jones’ number of 317, he cited Baxter, without a specific reference. ⁵ For Webster’s number, Harbaugh oddly did not cite Baxter. Instead, Harbaugh provided an estimate of 185-200 given to him by Irving S. Konefsky who was then editing Webster’s papers. ⁶ For John W. Davis’ number, Harbaugh stated 141 ⁷ and provided a list. ⁸

Justice Powell’s 1974 Speech

Justice Powell delivered a speech in 1974 for which research was done to identify the advocates with the highest number of Supreme Court appearances: Walter Jones (“some 317”), Daniel Webster (“between 185 and 200”), and John W. Davis (“140”). These names and numbers, however, do not appear in the body of the speech as delivered but on page 2 in a numbered footnote of a draft, and in a memorandum dated May 21 initialed by “JCJjr”, ⁹ presumably John C. Jeffries, Jr., one of his law clerks from 1973-74 and a future dean of the University of Virginia School of Law.

There are some problems with the statistics in this footnote. First, the footnote gave 1850 as Jones’ last case. Yet, there are cases with a “Jones” (without a first name or initial) appearing as late as 1856, when he was still alive and actively practicing law. Second, the number for Webster conflicts with that provided in the 1966 biography. Third, Davis is named as third highest.

Stern’s 1986 SUPREME COURT PRACTICE

This esteemed manual cited Justice Powell’s speech in its first edition of 1986 for the numbers of Jones, Webster and Davis. ¹⁰ In the 1993 edition, it added a number for Griswold (127). ¹¹

G. Edward White’s 1988 History

In a chapter entitled “Prominent Lawyers Before the Marshall Court,” in his multivolume The Marshall Court And Cultural Change, 1815-1835 (1988), G. Edward White identified a number of advocates before the Supreme Court with large numbers of cases: Jones (169 cases between 1815 and 1835), ¹² Wirt (170 between 1815 and 1835), ¹³ Swann (80 between 1815 and 1838), ¹⁴ John Sergeant (63 between 1815 and 1835), ¹⁵ and Luther Martin (25 between 1808 and 1813). ¹⁶ As indicated, with some exceptions, White limited himself to the number of cases decided between 1815 and 1835, the time period which was his focus. For some advocates, he did not state any numbers. Thus: Thomas Addis Emmet (no number), ¹⁷ Littleton W. Tazewell (no number), ¹⁸ William Pinkney (no number), ¹⁹ Robert G. Harper (no number although described as the most frequent advocate between 1800 and 1815), ²⁰ Webster (no number), ²¹ Ingersoll (no number), Francis Scott Key (no number), Henry Clay (no number), ²² Roger Taney (no number). ²³

Chief Justice Rehnquist’s 1989 Speech on Webster

On the occasion of the completion of Webster’s papers, Chief Justice Rehnquist delivered a speech at Dartmouth College and stated that Webster had argued 171 times. ²⁴

Chief Justice Rehnquist’s 1990 Speech

In a 1990 speech, Chief Justice William Rehnquist gave the following names, numbers, and rankings: Jones 317, Webster second (no number), Davis third (no number), Pinkney 84 (no ranking), Wirt (no number, no ranking). ²⁵ There was no description of the methods for computing these.

Shurtleff’s 1999 Article

In a 1999 article for The Supreme Court Historical Society Quarterly, Kathleen Shurtleff, then managing editor of the Quarterly and now Assistant Director of the Society, ²⁶ provided the following numbers: Jones (317), Francis Scott Key (152), Lawrence Wallace (141 as of December 1997, noted in court on the day by Chief Justice Rehnquist), Davis (140), Griswold (over 127). ²⁷ No sources were given and there was no description of the methods for computing these numbers.

2005 Supreme Court Compilation

The Supreme Court compiled an “Information Sheet: The Most Argued Supreme Court Cases” in August 2005. Among the contributors to this document were the Curator (or the Office of the Curator) of the Court, the Librarian of the Court, the Clerk of the Court, the Public Information Office (PIO) of the Court, Matthew Hofstedt (who had been, and perhaps was, in the Office of the Curator), and 1984 research by Professor Penny Hazelton, a professor law at the University of Washington School of Law who served from 1981-1985 as Assistant Librarian for Research Services, U.S. Supreme Court Library. ²⁸

This document lists, by name and number, the top 13 advocates of all time, with the lowest-ranked advocate at 63 arguments. Then it identified, by name and number, 43 advocates from the 20^th century through 2005, the top seven of which also appeared in the initial list of the top 13. It acknowledged the following discrepancies for four advocates:

Jones:
300+: Curator, citing Supreme Court Historical Society Journal, 2005 Vol. 30, No. 1, p. 8) ²⁹
169: Library, research by Penny Hazelton April 14, 1984
171: Remarks by Chief Justice Rehnquist at the Daniel Webster Symposium at Dartmouth

College, May 12, 1989, Supreme Court Historical Society 1989 Yearbook ³⁰ [in fact, this number concerned Webster, not Jones]

Webster:
249: Curator, citing Oxford Companion To The Supreme Court ³¹
170: Library, research by Penny Hazelton April 14, 1984
[No mention of Baxter’s 1966 biography. The “171” given by C.J. Rehnquist is placed under Jones, rather than Webster.]

William Wirt
170: Library, research by Penny Hazelton April 14, 1984
138: Curator, email from Matt Hofstedt

Erwin N. Griswold
118: 3 sources for this number: Clerk, Legal Times article, Public Information Office
124: Library, research by Penny Hazelton April 14, 1984
127: Curator

The 2005 Compilation says John Sergeant, with 63 arguments, was “US AG 1925-1929.” It confused the 19^th century John Sergeant with the 20^th century John Sargent (1860-1939).

Professor Richard Lazarus’ 2008 Law Review Article

Richard Lazarus, then professor at Georgetown University Law Center, and now at Harvard Law School, cited the foregoing 2005 compilation in a 2008 law review article and kindly supplied the author of this report with a copy of the 2005 compilation. ³² His article addressed Supreme Court practice as a specialty. He identified six advocates who appeared on one particular day in 2007 and calculated the number of cases in which each had made oral arguments prior to that date. He described in detail the care he took to obtain the number of cases with precision. ³³

In the course of his article, Professor Lazarus identified Jones, Webster, and Wirt but did not provide numbers or provide any citation other than the 2005 compilation. ³⁴ He named a few others who appeared with frequency in the 19^th century but, again, without providing numbers. ³⁵ He did the same for six attorneys in the 20^th century (John W. Davis, Charles Evans Hughes, Charles Evans Hughes, Jr., Thomas D. Thacher, Thurgood Marshall, Griswold, and Archibald Cox). ³⁶ Then he turned his attention to those lawyers who had worked in the Office of the Solicitor General who were currently appearing before the Court. ³⁷

It is commonplace to state that the reason so few lawyers appeared before the U.S. Supreme Court in the first half of the 19^th century, all of them from the District or nearby Maryland, Virginia, or Pennsylvania, was due to the difficulty of travel. The specifics of these difficulties are not mentioned or are glanced over. Charles Warren, writing in 1911, however, provided details, which are set out in Appendix 2. ³⁸

Harvard Professor Richard Lazarus argued in 2008 that, in recent decades, there has arisen anew a small number of Supreme Court practitioners consisting of current and former members of the Office of the Solicitor General. ³⁹

Search Methodology

Before or After December 31, 1850

We searched differently depending on whether a decision was reported between 1789 and December 31, 1850, or whether it was reported after 1850. For the latter cases, we used LexisNexis and searched for a name within the attorney segment. To determine the beginning and end dates of the search, we would use basic biographical material: birth year, death year, year of admission to bar, terms in office. For the 2,000 cases before December 31, 1850, however, there were so very many cases involving two or more of the same advocates, that I deemed it more efficient to review every case (in chronological order) one time, rather than have each case reviewed multiple times through advocate-specific searches. (We nicknamed the effort to review these 2,000 cases “Category 7 advocates” which referred to the ten most prominent advocates in these earliest Supreme Court years.)

Let me add here that we ran across some unreported decisions involving oral argument. See the memorandum from Brian Leffew dated July 8, 2021, as Appendix 3. We did not search for such cases, but if we found them in the course of our research, we added them.

Was There an Oral Argument?

The first question in looking at any case was to determine if there had been an oral argument. Obviously this is easy if the Report says “argued [date], decided [date]” or if it provides the names of counsel and identifies which ones argued, with others being “on the brief.” The Reports did not, however, always state there had been an argument. Some Reports’ opinions referred to “arguments made by counsel” and many stated in their conclusions that “arguments were heard by counsel” but not all such instances referred to oral argument as opposed to arguments submitted by written briefs. Many 19th century Reports provide a name followed by argument points made by that advocate, then another advocate name “contra,” and a third name “in reply.” These, too, are ambiguous since it is not clear that the points were being made orally. We generally believed these to be oral arguments and we would state in our Notes that we came to this conclusion by “structure” of the Report.

In addition, we could not presume that a Report of a decision on a motion in the 19^th century did not involve an oral argument; many of them did.

External Sources

One source external to the Reports that we used with great frequency to help resolve the issue of whether there had been an oral argument was Dates of Early Supreme Court Decisions and Arguments. ⁴⁰ In August of 2006 (updated in December 2018), the Library of the Supreme Court prepared this list of argument and decision dates for U.S. Reports, volumes 2-107 (1791-1883). The Library used the original handwritten engrossed minutes from the National Archives. We treated this document as presumptively correct, but rebuttable. If it included a date, we seldom had grounds to disagree. If it did not include a date, this suggested that there was no oral argument, but that was not always correct.

Just as the Library of the Supreme Court utilized the minutes from the National Archives, we often referred to the scanned journals from 1889-1992. ⁴¹ We used the journals from 1993 on ⁴² at least once, for Feldman.

We limited the amount of time we spent looking at other external sources to help us make assessments. Additional external sources included newspaper articles, biographies, Supreme Court archival materials, and histories of the Court. We did not look at papers, letters, or diaries, all of which may be available with respect to any particular advocate or any particular decision.

Who Made the Oral Argument?

If we determined that there was an oral argument, we next had to decide who made it. There were many cases where the Reports would identify two, three or even more advocates on one side, without stating which of them argued.

The second problem which occurred innumerable times, especially in the 19^th century, is that the Report would give a last name of an advocate without a first name or initial. We explored whether there were two, or even more, advocates with the same last name during the same period of time.

A third problem occurred when a Report would provide a title (Attorney General or Solicitor General, or a deputy or assistant) without a name. In such instances, we would need to know both the date of the argument and the precise dates of tenure to determine which official argued the case.

Whenever we saw evidence of a reargument,⁴³ we sought to identify the dates of the arguments and the identities of the counsel on all sides. If an advocate under investigation argued and reargued, we always counted this as two arguments. On the other hand, if an advocate argued two or more cases at the same time (because the cases were closely connected), we counted this as a single argument.

External Sources

Again, we severely limited the time we took to look at external sources to determine if the advocate under investigation made or did not make the oral argument. This is why we have double-digit and even triple-digit number of cases that are labeled as “question” or “maybe”: Reverdy Johnson, Sr., with 173. Reverdy Johnson, Jr., with 167, Robert W. Johnson with 112 (note that they all have the last name “Johnson”), Joseph H. Bradley with 96, Charles E. Hughes, Sr. and Jr., each with 50, Edmund J. Lee, Sr., with 35.

Various Issues

Early Reports buried the names of advocates in the report of the argument (printed or oral). We sometimes missed such names that only appeared dozens of pages into the Report. For example, we missed a case involving Wirt in one of the “Category 7” (pre-1851) cases (but obviously found it later).

There are issues specific to searches in computerized databases, such as Westlaw, LexisNexis, and BloombergLaw. One issue is clerical errors, either in the original printed editions that are replicated in the digital versions, or entered erroneously into the digital versions. Thus, Jones has a digital report with Jons, Swann with Sweann and Swan, Coxe with Cox, and Wirt with Writ. Most notably, a LexisNexis search for attorney(key) did not result in Key’s first Supreme Court case, in which the newspaper reported he argued for an hour. (The reason for the LexisNexis error was that there was no space between Key’s name and the word that followed it.) A search in Westlaw for Dreeben argued failed to include the case of Johnson v. United States, 520 U.S. 461 (1997), whereas the results in Bloomberg had this language from the report: “William J. Sheppard argued the cause for petitioner. With him on the briefs were D. Gray Thomas and Elizabeth L. White. Deputy Solicitor General Dreeben argued the cause for the United States.” We found many instances in the past 40 years where LexisNexis failed to include cases that were correctly listed in Oyez.

A manual search involving paging through the Reports might be considered fail-safe, but Professor Harbaugh’s manual search did not identify John W. Davis’ earliest oral arguments. Furthermore, there is the anomaly that John Quincy Adams is not mentioned in the reports of the Amistad case he argued. ⁴⁴

Some names produced such voluminous numbers of computerized search results that we attempted various ways to obtain a more manageable number of cases to review. We will be happy to have future researchers utilize better methods. Thus, in some instances we narrowed a broad search by looking for Reports that used argued w/15 decided, but learned that in some instances, LexisNexis failed to use decided. In some instances, we narrowed a broad search by excluding certiorari pre/15 denied since we did not care about cases where the advocate petitioned for certiorari, but this unwittingly also excluded any case mentioning a case where certiorari had been denied.

Presentation of Our Conclusions

I present our conclusions in Appendix 4A (alphabetical) and 4B (numerical). We state the number of oral arguments (including rearguments). I will upload the following materials for each of the 67 advocates to a Google Drive:

• a Word document that describes the research;
• a spreadsheet listing cases. These appear in a worksheet labeled “clearly argued” and a second worksheet labeled “maybe argued” or “question.” We typically also list cases in a worksheet labeled “not argued” where we resolved any issues in favor of that conclusion. We certainly invite any information that would affect our evaluation on any case; and
• LexisNexis search results and occasionally some other highly relevant materials.

I treat all oral arguments equally:

• no matter their length; in the early years, there were many arguments extending over more than one day;
• arguments on motions are treated the same as arguments on the merits; and
• as noted, a “reargument” is treated the same as an original argument. For every case that was reargued, we sought to identify the counsel on both sides at each argument. Sometimes the advocate being researched made both; sometimes just one. If the advocate argued twice, the case appears twice on the spreadsheet.

Appendix 1

A List of Advocates Who Did Not Meet the Minimum Threshold

While satisfied that the number of oral arguments made by the advocates named below did not reach 50, the precise numbers were not as vigorously reviewed as with the others—unless they were near 50. The names of the advocates are in alphabetical order.

Some advocates are identified as serving, or having served, as Attorney General, Solicitor General or in the office of the Solicitor General, but the number of oral arguments encompass their entire career.

The list immediately below consists of nine advocates who are practicing and may reach the 50-argument threshold in the future:

Blatt, Lisa S. (42)
Farr, H. Bartow, III (Assistant to the Solicitor General) (32)
Gold, Laurence (E. and S.) (44) ⁴⁵
Gornstein, Irving (Assistant to Solicitor General) (40)
Jones, Kent L. (46)
Katyal, Neal (Solicitor General) (45)
Rothfeld, Charles A. (Assistant to the Solicitor General) (32)
Starr, Kenneth (Solicitor General) (31) ⁴⁶
Tribe, Laurence H. (36)
Bender, Paul (Deputy Solicitor General) (22) ⁴⁷
Berrien, John M. (Attorney General) (25 at most)
Bonaparte, Charles (Attorney General) (19 at most)
Bork, Robert (43)
Carloss, Helen R. (19)
Clark, Ramsey (Attorney General) (18 at most)
Clay, Henry (29)
Cox, Hugh B. (about 18)
Daugherty, Harry M. (Attorney General) (33 at most)
Davis, Henry E. (47)
Days, Drew, III (Solicitor General (28)
Donovan, William J.
Emmett, Thomas Addis (13 arguments; 1815-1826)
Fried, Charles (Solicitor General) (31)
Frierson, William (Solicitor General; Assistant Attorney General) (42)
Garre, Gregory (Solicitor General) (43 at most)
Geller, Kenneth S. (Deputy Solicitor General) (41) ⁴⁸
Gilpin, Henry D. (Attorney General) (48 at most)
Griggs, John W. (Attorney General) (39 at most)
Hoar, Ebenezer R. (Attorney General) (40)
Hughes, William J., Sr.
Hughes, William J., Jr.
Ingersoll, Charles Jared (36 to 43)
Jackson, Robert H. (Attorney General) (22)
Johnson, William G. (35 at most)
Jones, Keith A. (Deputy Solicitor General (21)
McReynolds, James C. (Attorney General) (35 at most)
Marshall, Thurgood (28) ⁴⁹
Martin, Luther (48 at most)
Mason, John Y. (Attorney General) (23 at most)
McCree, Wade (Solicitor General) (33 at most)
McKenna, Joseph (Attorney General) (30 at most)
Meredith, William M. (36 at most)
Miller, William H.H. (Attorney General) (35 at most)
Moody, William H. (Attorney General) (39 at most)
Morrison, Alan B. (18) ⁵⁰
Nelson, John (Attorney General) (42)
Olney, Richard (Attorney General) (22 at most)
Perlman, Philip (Solicitor General) (31)
Rankin, Lee (Solicitor General) (29)
Ridgely, Harry S.
Roberts, John (39) ⁵¹
Rodney, Caesar A. (Attorney General) (21)
Rosenberg, Beatrice (27; perhaps over 30)
Shapiro, Stephen M. (Deputy Solicitor General; Assistant to the Solicitor General) (28)
Stanley, J. Frank (about 11)
Taney, Roger (about 40)
Thacher, Thomas (Solicitor General) (43)
Underwood, Barbara (first woman to act as Solicitor General) (22)
Underwood, Harry L. (about 40)
Walker, Robert J. (43 at most)
Wheaton, Henry (the reporter from 1816-1827) (28 cases 1816-1827)
Whipple, R.H. (20)
White, J.M. (47 at most)
Wickersham, George W. (Attorney General) (43 at most)
Willebrandt, Mabel Walker (Assistant Attorney General) (39)
Winder, William H. (39 arguments from 1803 to his last one in 1824)

Appendix 2

Travel Conditions in First Decades of Supreme Court

From Charles Warren, A History of the American Bar 254-56 (1911)

For those who were members of the intimate Supreme Court bar, there was great conviviality. Here is Charles Warren’s 1922 description of February 1818: ⁵²

Appendix 3

Unreported Supreme Court Cases

Memorandum

July 8, 2021

Appendix 4A

Alphabetical Listing of Top Advocates

• Ashton, Joseph Hubley
• Beck, James M.
• Bibb, George M.
• Black, Jeremiah S.
• Bradley, Joseph H.
• Brent, Robert J.
• Butler, Benjamin F.
• Claiborne, Louis F.
• Clement, Paul D.
• Conrad, Holmes
• Cox, Archibald
• Coxe, Richard S.
• Crittenden, John J.
• Cushing, Caleb
• Davidge, Walter D., Sr.
• Davis, Henry E.
• Davis, John W
• Davis, Oscar
• Dreeben, Michael R.
• Evarts, Maxwell
• Evarts, William M.
• Ewing, Thomas
• Fahy, Charles
• Feldman, James A.
• Frederick, David C.
• Frey, Andrew
• Friedman, Daniel M.
• Garland, Augustus H.
• Griswold, Erwin N.
• Harper, Robert G.
• Hoyt, Henry M., Jr.
• Hughes, Charles E., Jr.
• Hughes, Charles E., Sr.
• Ingersoll, Jared
• Johnson, John G.
• Johnson, Reverdy, Jr.
• Johnson, Reverdy, Sr.
• Johnson, Robert W.
• Jones, Walter F., Jr.
• Key, Francis Scott
• Key, Philip Barton
• Kneedler, Edwin S.
• Lee, Charles
• Lee, Edmund J., Sr.
• Lee, Rex
• Maxwell, Lawrence, Jr.
• McKenney, Frederic D.
• Minear, Jeffrey P.
• Mitchell, William D.
• Ogden, David B.
• Olson, Theodore B.
• Phillips, Carter G.
• Phillips, Philip
• Phillips, S.F.
• Pinkney, William
• Sergeant, John
• Stanbery, Henry
• Stern, Robert L.
• Stewart, Malcolm L.
• Swann, Thomas
• Verrilli, Donald, Jr.
• Wallace, Lawrence G.
• Waxman, Seth P.
• Webster, Daniel
• Wheat, Alfred A.
• Williams, George H.
• Wirt, William

Appendix 4B

Numerical Ranking of Top Advocates

The advocates are ranked based on the number of oral arguments described as “clearly argued.” The second column has the number of possible additional oral arguments where it is unclear whether or not there was an oral argument or whether it is unclear if the particular advocate made an oral argument.

Ten of these advocates are living and practicing. Their number of oral arguments may increase. (Indeed, their numbers are probably now out of date.) They are: Clement, Dreeben, Feldman, Frederick, Kneedler, Olson, Phillips (Carter), Stewart, Verrilli, and Waxman.

Appendix 5

Acknowledgements

I thank these students for their work. They are listed in alphabetical order.