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So who can argue a case in front of the Supreme Court?

January 10, 2014 by NCC Staff


On Monday, Senate minority leader Mitch McConnell will be one of three people allowed to argue a case before the Supreme Court. So how unusual is it for a non-lawyer to appear before the nine Justices?

mcconnell320That is basically a trick question, because Senator McConnell is a lawyer by training. He has a law degree from the University of Kentucky and he was also a deputy assistant attorney general in the Gerald Ford administration.

McConnell had also received permission to appear before the Court in another case last year, the McCutheon case about campaign finance contributions.  Instead, attorney Bobby Burchfield argued the case for McConnell, as the senator sat in the courtroom.

In the newer case on Monday, Gibson Dunn & Crutcher LLP's Miguel Estrada is expected to argue the case for McConnell and 44 fellow Republican senators.

There is a precedent for a political figure to argue in front of the Supreme Court. For example, in 1840 former President John Quincy Adams argued before the Justices as a member of the House of Representatives in the Amistad case.

Adams was also a lawyer and he won his case before the Court. Richard Nixon and Abraham Lincoln also argued before the Court, as private attorneys, as did five other men who were eventually Presidents. (Chief Justice Roger Taney ruled against Lincoln in an 1849 case.)

But in the past 35 years, the Court has made it clear through custom and then through a rules change last year, that only lawyers are allowed to appear before the Justices.

In July 2013, the Court said it had updated the official Rules of the Court to make it clear that only attorneys are allowed to argue cases.

“Oral arguments may be presented only by members of the Bar of this Court,” says Rule 28.8. Exceptions can be made for other attorneys under another rule to argue pro hac vice (which means in Latin “for this occasion").

If an attorney hasn’t been admitted to practice in the past three years in a state or territory, a motion can be made stating the attorney’s qualifications, for the Court’s consideration.

The last person to argue a case in front of the Supreme Court who wasn’t a lawyer was Sam Sloan. In SEC v. Sloan, the Court ruled 9-0 in favor of Sloan in 1978.

Sloan filed his own brief with the Court and argued his own case about stock-trading issues.

Sloan was interviewed last year after the Supreme Court rule change.

‘‘It wasn’t on an ego thing or anything like that,’’ he told the Associated Press. ‘‘I wanted to win the case. I was convinced I couldn’t win the case in any other way but to argue my own case.’’

The AP also asked Supreme Court scholars about non-lawyers who appeared in the Court, and another example was found in 1948. Harrison Parker represented himself in court and lost his case about contempt charges in Illinois.

Almost as rare as cases argued by non-lawyers in front of the Court are cases that are accepted where the appeals are written by non-lawyers.

In 2012, the Court agreed to consider two of these cases, which observers said at the time seemed unprecedented. Both cases made it to the argument phase, and the non-lawyers (using court-appointed lawyers) won their cases.

The most-famous case involving a non-lawyer gaining a date in court and winning a case, using court-appointed counsel, involved a prisoner named Clarence Gideon.

The Court ruled in the landmark Gideon v. Wainwright case in 1963 that states must provide lawyers to defendants who can't afford a lawyer in state courts, just as the federal courts allow.

The Court appointed  attorney Abe Fortas to represent Gideon, who received an unanimous verdict from the Court. Fortas was named to the Supreme Court in 1965.

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