Perhaps one of the most widespread practices that goes (relatively) unnoticed beyond Supreme Court aficionados and obsessives is what I call the “SCOTUS attorney switcheroo.” This is the change in counsel as a case travels from the lower courts to the Supreme Court. Although this may not – on the surface – seem like a very big deal, it has implications not only on the nature of what the court hears but what actually gets decided by the justices.

An elite bar, quietly in control

This phenomenon has deep structural roots. As Richard Lazarus documented in a landmark 2008 article in the Georgetown Law Journal, the past several decades have seen the consolidation of Supreme Court advocacy in the hands of a small group of specialists – former solicitors general, partners at appellate boutiques, and Supreme Court clinic directors – who dominate the court’s docket to an extent not seen since the early 19th century, “when a few extraordinary attorneys” similarly “dominated oral argument before the Court.” That bar has only grown more entrenched since Lazarus’ analysis. The same persons – Paul Clement, Lisa Blatt, Jeffrey Fisher, Noel Francisco, Seth Waxman, Neal Katyal, Gregory Garre, Adam Unikowsky – appear repeatedly, arriving at the Supreme Court stage in cases that were argued in the lower courts by someone else entirely.