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Richard J. Lazarus, Advocacy History in the Supreme Court, 2020 Sup. Ct. Rev. 423 (2021).

Abstract: Legal scholarship has not previously considered the role of advocacy history in Supreme Court advocacy and decision making in any of its iterations. Though well know to expert Supreme Court advocates, hiding in the shadows has been how both Supreme Court advocates and the Justices themselves rely on the advocacy underlying the Court's precedent — both the written briefs and oral argument — in discerning both the meaning of the Court's prior rulings and its precedential weight. The most recently completed Supreme Court Term is emblematic of the relevance to both Supreme Court advocates and the Justices themselves of the advocacy underlying the Court’s prior rulings. It also highlights the role that advocacy history is increasingly playing in the Court's controversial debates concerning whether a prior case should be overruled. This Article seeks to fill that void in existing legal scholarship by bringing out of the shadows the role advocacy history plays at the Court.