The U.S. Supreme Court is more diverse than the lawyers arguing before it

The Supreme Court looks more like America than it ever has. The lawyers who plead before the highest court in the land? Not really.

The current two-week argument session includes 25 men and just two women, an imbalance so glaring that the Biden administration’s leading Supreme Court lawyer took it into account in her defense of gender-conscious college admissions. race monday.

Solicitor General Elizabeth Prelogar argued in court that extreme racial or gender disparities between certain groups “can cause people to question whether the path to leadership is open.”

Prelogar and Morgan Ratner, a lawyer in private practice, are the lone women who started arguments this week in the usual way lawyers do, “Mr. Chief Justice, and may it please the court.”

No women will argue a case during the second week of the hearing.

The glaring lack of women was an “example of common sense,” Prelogar said, which she hoped would resonate with the court, especially when women make up about half of law school graduates.

“And I think it would be reasonable for a woman to look at this and ask, is this a path open to me, to be a Supreme Court attorney? Are private clients willing to hire women to argue their cases in the Supreme Court? When there is this kind of glaring disparity in representation, it can matter and it is common sense,” she said.

The previous month was not much different. Eighteen men and four women, including Prelogar, argued eight cases.

The racial and ethnic disparity among the attorneys is also striking, at a time when there are four women, two African Americans and one Latina among the nine justices. Only one black man has appeared before the Supreme Court this quarter, and the last time a black woman appeared before the justices was in 2019.

Justices of the Supreme Court of the United States: seated from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson.

Prelogar is in the enviable position of choosing which cases to defend on behalf of the US government. The Solicitor General generally argues the most important case each month that the court sits. Prelogar is only the second woman to hold the position permanently, after current judge Elena Kagan.

The women are also Louisiana and New York’s top appellate attorneys and regularly plead in court.

Lisa Blatt, the woman in private practice who appears most often in court, gave her 43rd high court plea last month in favor of photographer Lynn Goldsmith in a dispute with the Andy Warhol Foundation. Blatt chairs the Supreme Court and appellate practice at the law firm of Williams and Connolly.

But as Prelogar noted, there are few women with similar authority in private companies and state offices.

This partly explains why so few Supreme Court lawyers are women and minorities. There is also a relatively small number of slots each year in a court that has heard about 60 cases per year recently.

Private parties whose cases are in court often choose lawyers with previous Supreme Court experience, which means the same lawyers show up in court again and again.

Christina Swarns, formerly director of litigation for the NAACP’s Legal Defense and Educational Fund, is one of the few black women to appear in court in recent years.

Although six years have passed since his successful appearance on behalf of a black death row inmate in Texas, Swarns said people “all the time, all the time, all the time” tell him, “I heard your argument. I saw your argument. I can’t tell you how proud you made us that day.”

Swarns said she was “extremely aware of the uniqueness” of her argument as a black woman and felt a pressure of “not wanting to falter” and felt that if she did, “it would make it harder for the people who came behind me”.

When Judge Sonia Sotomayor was asked in a court appearance earlier this year about the lack of diversity among lawyers, she said “to fix this we’re going to have to work at all levels.” Sotomayor, who became the court’s first Latin judge in 2009, said that means reaching out to minority students in law school to encourage them to apply for internships with judges, which will bring them into law firms. lawyers who can put them in a position to plead in court.

The Appellate Project, a nonprofit created in 2019, aims to create this pipeline to power minority lawyers in appellate legal work. This year, the Supreme Court’s own clerk class is about two-thirds male; six of the 38 court clerks appear to be minorities, according to research by court watcher David Lat.

But Sotomayor said the judges in particular have “the power and the responsibility to reach out to law school professors that we trust and tell them that we expect them to give us various recommendations” for the lawyers and that “we expect them to mentor students of color from their first day in law school.”

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