The SCOTUS Attorney Switcheroo: The Lawyer Who Argued Your Appeal Probably Isn’t the One Who Went to the Supreme Court
When cases travel from the appeals courts to SCOTUS, the attorneys often don’t make the trip with them. The pattern of who gets replaced, and when, reveals a great deal about Supreme Court practice.
When the Fifth Circuit ruled in favor of George Jarkesy in 2022 — holding that the SEC had violated his Seventh Amendment right to a jury trial by adjudicating fraud charges in-house — the government’s case in New Orleans was handled by agency counsel and line attorneys from the SEC’s Office of General Counsel. By the time Securities and Exchange Commission v. Jarkesy reached the Supreme Court, the team had changed as the SG’s office took over. Solicitor General Elizabeth Prelogar appeared as counsel of record on the government’s petition, and the advocacy was reconfigured around the Office of the Solicitor General. On the respondent’s side, S. Michael McColloch remained as counsel of record, but the strategic architecture of the case had fundamentally shifted. It was now a blockbuster: a potential structural blow to the administrative state, argued in November 2023 and decided 6-3 in June 2024.
Jarkesy is not an outlier. An examination of 71 cases drawn from the October 2023 and 2024 terms — cross-referenced against the Supreme Court Database — shows that attorney rosters change in a substantial majority of cases as they travel from the circuit courts to the Supreme Court. In 56 of those 71 cases, or 79 percent, at least one meaningful attorney change occurred: a new counsel of record, a Supreme Court specialist parachuting in, or a clinic supplanting lower-court counsel. The personnel shift is pervasive. And it is not random. The data reveal three overlapping patterns: the switch depends heavily on what kind of case it is, on how high the stakes are, and on which elite players are waiting in the wings.