WASHINGTON – The Supreme Court looks more like America than it ever has. The lawyers who argue at the nation's highest court? Not so much.
The current two-week session of arguments features 25 men and just two women, an imbalance so stark that the Biden administration's top Supreme Court lawyer made a point of it in her defense of race-conscious college admissions Monday.
Solicitor General Elizabeth Prelogar argued to the court that extreme racial or gender disparities between certain groups “can cause people to wonder whether the path to leadership is open.”
Prelogar and Morgan Ratner, a lawyer in private practice, are the lone women who began arguments this week as attorneys customarily do, “Mr. Chief Justice, and may it please the court.”
No woman will argue a case in the second week of the court session.
The glaring lack of women was a “common sense example," Prelogar said, that she hoped would resonate with the court, especially when women make up roughly half of law school graduates.
“And I think it would be reasonable for a woman to look at that and wonder, is that a path that’s open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter and it’s common sense,” she said.
The month before wasn’t much different. Eighteen men and four women, including Prelogar, argued eight cases.
The racial and ethnic disparity among lawyers also is stark, at a time when there are four women, two African-Americans and a Latina among the nine justices. Just one Black man has made a Supreme Court argument this term, and the last time a Black woman appeared before the justices was in 2019.
Prelogar is in the enviable position of choosing which cases to argue on behalf of the U.S. government. The solicitor general typically argues the most important case each month the court is in session. Prelogar is only the second woman to hold the position on a permanent basis, following now-Justice Elena Kagan.
Women also serve as the top appellate lawyers for Louisiana and New York and argue regularly before the court.
Lisa Blatt, the woman in private practice who appears most frequently at the court, delivered her 43rd high court argument last month in support of photographer Lynn Goldsmith in a dispute with the Andy Warhol Foundation. Blatt chairs the Supreme Court and appellate practice at the Williams and Connolly law firm.
But as Prelogar noted, there are few women with similar authority at private firms and in state offices.
That partially explains why so few Supreme Court advocates are women and minorities. There also are a relatively small number of slots every year at a court that has been hearing around 60 cases a year recently.
The private parties whose cases are before the court often pick lawyers with previous Supreme Court experience, which means the same lawyers come before the court again and again.
Christina Swarns, formerly the litigation director of the NAACP’s Legal Defense and Educational Fund, is one of the few Black women to argue before the court in recent years.
Though it's been six years since her successful appearance on behalf of a Black death row inmate in Texas, Swarns said people “all the time, all the time, all the time” say to her: “I heard your argument. I saw your argument. I can’t tell you how proud you made us that day.”
Swarns said she is “acutely aware of the singularity” of her argument as a Black woman and felt pressure “not wanting to falter” and feeling that if she did, “it would make it harder for the people who came behind me.”
When Justice Sonia Sotomayor was asked at an appearance earlier this year about the lack of diversity among advocates, she said that “to fix this problem we’re going to have to work at every level.” Sotomayor, who became the court's first Latina justice in 2009, said that meant reaching out to minority students in law school to encourage them to apply for clerkships with judges, which will get them into law firms that can put them in a position to argue before the court.
The Appellate Project, a not-for-profit created in 2019, aims to create that pipeline to feed minority lawyers into appellate legal work. This year, the Supreme Court's own clerk class is about two-thirds male; it appears six of the 38 clerks are minorities, according to research by court watcher David Lat.
But Sotomayor said judges in particular have “have the power and have the responsibility to reach out to law school professors whose judgment we trust and to tell them that it is our expectation that they will give us diverse recommendations” for law clerks and that “we expect them to actually mentor students of color from their very first day in law school.”
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