Historically diverse Supreme Court hears disproportionately from White lawyers

The Washington Post / Theodoric Meyer, Tobi Raji

15:43 JST, October 31, 2022

When the White House held a celebration in April to mark Supreme Court Justice Ketanji Brown Jackson’s Senate confirmation, President Biden hailed the moment as one that would let the “sun shine on so many young women, so many young Black women, so many minorities.”

Jackson’s confirmation means the Supreme Court is now more diverse along racial and gender lines than ever before, with four female justices, two Black justices and one Latina justice.

The elite group of lawyers who argue before the justices, however, remains mostly White and male.

Black and Hispanic attorneys are starkly underrepresented among Supreme Court litigators, according to a Washington Post analysis of lawyers who have delivered oral arguments in recent years. Women are also significantly underrepresented. And there are particularly few women of color.

Vanessa Malone, a federal public defender in Akron, Ohio, was shocked when she learned while preparing to argue before the court in 2019 how few Black women had ever done so.

“What are we doing here?” she said. “Our benches are diversified, but the people who are coming before the benches are not.”

Since the start of the Supreme Court’s 2017 term, 374 lawyers have argued before the justices. Some have argued more than a dozen times, while others have done so only once.

To determine the demographics of this group, The Washington Post asked each of them to share their race or ethnicity, gender and other information about their backgrounds. More than 290 responded. The Post confirmed the race of seven more lawyers based on articles, speeches and interviews in which they described how they identify. The Post also confirmed lawyers’ gender identities based on their biographies on law firm and other professional websites and how the justices referred to them during oral arguments.

In total, The Post ascertained the gender identities of all 374 lawyers who have argued before the high court since the start of the 2017 term and the race of more than 80 percent of them.

Of those, nearly 81 percent are White, and 62 percent are White men. Nearly 9 percent are Asian American. While 19 percent of Americans and nearly 6 percent of lawyers in the United States are Hispanic, according to the American Bar Association, only 3.6 percent of the Supreme Court attorneys in the Post analysis were Hispanic. And while almost 14 percent of Americans and 4.5 percent of lawyers nationally are Black, only 2.3 percent of the lawyers in the Post analysis were Black.

Hispanic and Black lawyers were even more underrepresented when measured by the number of arguments they made. Hispanic lawyers have made 2.3 percent of Supreme Court arguments since the 2017 term, and Black lawyers made only 1 percent.

The gender disparity was also stark: While 38 percent of American lawyers are women, according to the ABA, women make up only 20 percent of those who argued before the Supreme Court, according to the Post analysis.

Women of color were particularly underrepresented: Just six Asian American women, two biracial women, one Hispanic woman and one Black woman have argued before the court since the start of the 2017 term.

When Lisa Blatt, who heads Williams & Connolly’s Supreme Court and appellate practice, accepted an award at Georgetown University in April, she decried the “appalling disparity” in the backgrounds of the Supreme Court bar. A lawyer at her firm, Luke McCloud, is one of the few Black men who have argued before the court in recent years.

“The numbers won’t change until we act instead of just talk,” said Blatt, who is White. “It cannot be that Luke is the only living superstar advocate at a law firm who happens to be a Black lawyer.”

As the Supreme Court grapples with several cases involving race, including affirmative action cases set to be argued on Monday, the paucity of Black and Hispanic lawyers who argue before the court spotlights how people of color are often excluded from the rooms in which decisions that affect them are made.

Randolph Ortega, 56, recalled how intimidating it felt to be the only Hispanic lawyer arguing in front of an appellate court early in his career. “When I walked into the hearing room with the three-person panel, all three judges were older White males, every advocate in the courtroom was an older White male, and I was a 20-something Hispanic male,” he said.

Decades later, as he sat in the lawyer lounge waiting to argue before the Supreme Court in 2019 about whether the family of a Mexican teenager killed by a Border Patrol agent could sue in U.S. courts, Ortega and his co-counsel were still the only Hispanic people in the room.

The dearth of women and lawyers of color who argue before the court reflects a system in which they are underrepresented at every level, even as the most prestigious law schools have moved to admit more students of color, and as many top law firms have boasted about their commitments to diversity, according to interviews with more than 50 lawyers who have argued before the court, law professors, former clerks and advocates.

The people who secure the opportunities that prepare lawyers who argue frequently before the court – clerking for Supreme Court justices, working in the U.S. solicitor general’s office and serving as a state’s solicitor general – are disproportionately White and male. And law firms’ clients with cases before the Supreme Court often insist on being represented by the lawyer at the firm who’s done the most arguments in the past – who is usually a White man.

While some justices have made a point of hiring women and lawyers of color as clerks in recent years, they have said little about the lack of diversity among the lawyers who appear before them. All nine were presented with The Post’s findings through the court’s press office. They all declined to comment, said Supreme Court spokeswoman Patricia McCabe.

Without addressing diversity, some justices have praised the emergence of a group of five or six dozen lawyers who regularly appear before them, some of whom the justices also know socially.

“One of the things that has happened over the last 20 years or so at the Supreme Court is the development of a kind of ‘Supreme Court bar’ – people who are repeat players, and who have been there before, and who know what the whole enterprise is about, know the way we think, know the kinds of questions we ask, know the kinds of things that matter to us as we reach a decision,” Justice Elena Kagan said in 2015. “And I think it’s an unqualified good for the court.”

Many conservatives are skeptical of institutional efforts to increase racial diversity. But some have chafed at what Arizona Attorney General Mark Brnovich, a Republican whose parents immigrated from the former Yugoslavia, described as Supreme Court lawyers’ “smugness and arrogance.”

“There are a lot of great advocates who may be men, may be women, may be from diverse economic backgrounds or diverse cultural, racial backgrounds, that we have kind of excluded because they didn’t go to Ivy League schools, or didn’t work in the solicitor [general’s] office, or didn’t clerk for a Supreme Court justice,” Brnovich said. “And that’s the problem.”

The impact on the Court

Several lawyers and civil rights advocates argue the country would be better served by a more diverse group of lawyers arguing before the court. And greater diversity of perspective and experience could inform how lawyers present and frame arguments for the justices.

“That’s ultimately what we do as lawyers – tell stories and get people to try to relate to them and understand our perspective,” McCloud said.

In the case McCloud argued earlier this year, which concerned sentencing for drug crimes, “the vast majority of the people affected by the law were Black men,” he said. “And so I think that having the opportunity to be a voice for those Black men in an environment where there’s not many Black men to begin with was a real honor – and hopefully an opportunity that more diverse attorneys will get, especially when it comes to matters that affect diverse individuals in our country disproportionately.”

Several lawyers referenced Thurgood Marshall’s oral argument in Brown v. Board of Education, more than a decade before he became the first Black American on the court in 1967.

“There was a moment in his rebuttal, his closing argument, when he started to describe what segregation looks like,” said Amir Ali, the executive director of the MacArthur Justice Center, who is North African and Middle Eastern and has argued before the court several times. “And he starts talking about kids walking to school together, White and Black, getting along and laughing together, and then having to part ways suddenly when they reach the corner and one has to go to the White school and one has to go to the Black school. And in describing this, he pauses and he says, ‘I’ve seen them do it.’ “

“The power of that, for him to be able to say, ‘I’ve seen it’ – I think in part what he’s implicitly saying is, ‘You may not have seen that, but I have,’ ” Ali added.

But others argued that it’s not clear whether more diverse lawyers would lead the justices to rule any differently. While it was “symbolically significant” that Marshall argued the case, it’s unlikely that it would make a difference for the current bench, said Noah Feldman, a Harvard Law School professor. “That was in a different era,” he said.

The role of clerkships

Supreme Court lawyers place a heavy emphasis on credentials, and perhaps no credential is more crucial to arguing before the court than clerking for a justice.

More than half of arguments since the 2017 term have been made by former clerks. Clerking is also increasingly a prerequisite to working in the solicitor general’s office: Solicitor General Elizabeth B. Prelogar and all but four of the 21 other lawyers in her office are former Supreme Court clerks.

And those clerkships have been disproportionately White and male.

In 1998, Tony Mauro, a reporter for USA Today, found that of the 394 law clerks hired by the Supreme Court justices at the time during their tenures, fewer than 2 percent were Black. Four justices had never hired a Black law clerk. Fewer than a quarter were women.

When Mauro repeated the study in 2017 for the National Law Journal, he found that clerks had become marginally more diverse: 85 percent of clerks hired between 2005 and 2017 were White. Only a third were women.

The Supreme Court doesn’t track the racial or ethnic backgrounds of its clerks, but a Washington Post review of the 197 clerks hired since Mauro’s study found the gender disparity has continued to shrink. Fifty-four percent were men and 46 percent were women, according to an analysis of the 171 clerks whose gender The Post ascertained.

Some justices hire more women than others. More than half of the clerks hired by Justices Brett M. Kavanaugh and Sonia Sotomayor between 2018 and 2022 were women. Slightly more than a quarter of those hired by Justice Neil M. Gorsuch were.

Among the conservative justices, Kavanaugh is credited with making the most effort to diversify his clerks. “The only reason that I applied to the Supreme Court was because he encouraged me to do that,” said McCloud, who clerked for Kavanaugh when he was a judge on the U.S. Court of Appeals for the D.C. Circuit and went on to clerk for Sotomayor.

Lawmakers have pressed the justices for years during congressional budget hearings on the lack of diversity among clerks. The justices have responded by saying they’re doing better than their predecessors or arguing that it’s tough to hire diverse clerks because clerks on the appeals courts from which they hire are disproportionately White and male.

“We receive what the law schools prepare,” Justice Clarence Thomas told lawmakers during a 2009 hearing.

“Each of us have had minority law clerks with whom we were very satisfied and [who] have done outstanding jobs,” Thomas added. “But there’s not a plethora coming from the band that we select from in law schools. It’s as simple as that.”

There are nascent efforts to diversify Supreme Court clerkships and the appellate bar more broadly. Juvaria Khan founded the Appellate Project in 2019 to pair law students interested in appellate work with mentors such as former solicitor general Donald B. Verrilli Jr., Roman Martinez and Michael Dreeben, all whom argue often before the Supreme Court.

The law firm Orrick recently started hiring a handful of associates each summer to work in its Supreme Court and appellate practice. The firm helps them apply to become a clerk “as a way to break the cycle of racial disparity in prestigious clerkships,” said E. Joshua Rosenkranz, who leads the practice and has argued 20 times before the court.

But winning Supreme Court clerkships and the appellate clerkships that lead to them often depends on forming relationships with well-connected “feeder” professors who can guide students and write letters of recommendation, Khan said.

“Yes, it’s your grades. Yes, it’s your school. Yes, it’s your appellate clerkship. But it is also your relationship with certain professors who have influence and power,” said Brook Hopkins, who clerked for Justice David Souter from 2010 to 2011 (retired justices typically hire one clerk per term). “Those people tend to be White men.”

Laurence Tribe, a Harvard Law School “feeder professor” who has argued dozens of cases before the Supreme Court and once taught Chief Justice John G. Roberts Jr. and Kagan, said that some justices have cared more about diversity than others.

“Justice [William J.] Brennan [Jr.] – even though very liberal and very inclusive and very much in favor of diversity and affirmative action – for almost the entirety of his tenure on the court never had a female law clerk,” Tribe said. “He, being of an earlier generation, used to say that he would be uncomfortable working late into the night with a female law clerk, and I would try to persuade him that he shouldn’t feel that way.”

The role of the solicitor general

The easiest way to rack up Supreme Court arguments as a young lawyer is to work in the solicitor general’s office, which argues on behalf of the federal government. All but five of the 31 lawyers who have argued most often since the start of the 2017 term are veterans of the solicitor general’s office or currently work there.

Prelogar is the second woman to be confirmed as solicitor general, but only seven of the 21 lawyers who work under her are women. All five deputy solicitors general – one of whom is a political appointee and the rest of whom are civil servants – are White men. (There have been four Senate-confirmed solicitors general of color: Marshall, Wade H. McCree Jr. and Drew S. Days III, who were all Black, and Noel Francisco, who is Filipino American.)

Four of the lawyers in the solicitor general’s office are Asian American, but there don’t appear to be any Black or Hispanic lawyers, nor any women of color. (While the Justice Department declined to provide a breakdown of the office’s lawyers by race and ethnicity, The Post confirmed how all but one identify.)

Prelogar declined an interview request.

“As the second woman confirmed to serve as Solicitor General in the 152-year history of the office, I am especially mindful of the importance of all forms of diversity in the Office of the Solicitor General and the Supreme Court bar as a whole,” Prelogar said in a statement to The Post. “While we have as many women lawyers in our office today as there have been at any point in the office’s history, I know there is more work to be done to ensure that we reflect the American people as we represent them before the Court.”

More and more states have moved to hire their own solicitors general in recent years, creating another opportunity for young lawyers eager to argue before the Supreme Court. Texas Solicitor General Judd Stone II, 39, racked up five Supreme Court arguments last term alone.

But state solicitors general who argue before the court are also mostly men.

Of the 49 state solicitors general and deputy solicitors general who have appeared before the court since the 2017 term, fewer than a quarter are women.

Five of the 35 solicitors general and deputy solicitors who argued before the court and confirmed their race or ethnicity with The Post are Asian American. Michigan Solicitor General Fadwa Hammoud is Arab American; Tera Heintz, Washington state’s deputy solicitor general, is biracial; and Jesus Osete, who argued before the court while serving as Missouri’s deputy solicitor general, is Hispanic. None of them are Black.

The role of firms

The lack of diversity among Supreme Court clerks and in the offices’ of solicitors general help to explain why more women and lawyers of color don’t work in law firms’ appellate practices, but it doesn’t account for why some of those at firms rarely argue before the court.

“The most significant problem in my view is the clients,” said Cate Stetson, the co-director of Hogan Lovells’s appellate practice.

Many companies say they value diverse representation. When they have a case before the Supreme Court, though, it’s tempting to go with the lawyer who has done the most oral arguments in the past – who tends to be an older White man. As one lawyer put it: No corporate general counsel has ever been fired for hiring Paul Clement – a former solicitor general who’s argued more than 100 cases before the court – even if the company loses.

Some Supreme Court practice heads said they encourage clients to take a different route.

WilmerHale has been “aggressively promoting to the clients our younger, more diverse lawyers so our clients get a measure of comfort with them,” said Seth Waxman, a former solicitor general who is White and who chairs the firm’s appellate and Supreme Court litigation practice. “Then when it comes time to decide who’s going to argue the appeal, who’s going to argue in the Supreme Court, we’re not genuinely in the position of asking the company to make any sacrifices at all.”

“I have a rule: Any Supreme Court case I can give to an associate I will,” said Neal Katyal, a former acting solicitor general who leads Hogan Lovells’s appellate practice with Stetson.

Still, Katyal, who is Indian American, estimates that he’s only succeeded five times in the past five years. “At the end of the day, clients will sometimes say, ‘Nope, I want the person who’s argued many times before to argue my case,’ ” he said.

Not every lawyer who heads a top Supreme Court practice appears to have made securing arguments for less-experienced lawyers a priority.

Lawyers at Kirkland & Ellis argued 30 Supreme Court cases since the start of the 2017 term – more than any other firm. Clement, who left Kirkland in June to start his own firm, argued all but six of them. Just two were argued by women.

Clement didn’t respond to requests for comment. Kirkland said in a statement the firm was “committed as an institution to promoting diversity, equity and inclusion (DEI) both within our Firm and across the legal profession more broadly.”

Other firms have better track records.

Three of the five lawyers at Williams & Connolly who have argued before the court since the 2017 terms are women. The fourth, Kannon Shanmugam, who left the firm in 2019 to lead Paul, Weiss, Rifkind, Wharton & Garrison’s Supreme Court and appellate practice, is an Indian American man. The fifth, McCloud, is a Black man.

And of the eight WilmerHale lawyers who have argued before the court since the 2017 term, three are women and two are biracial. Still, Waxman argued six of WilmerHale’s 14 cases himself – far more than any other lawyer at the firm. Waxman is representing Harvard in Students for Fair Admissions v. President and Fellows of Harvard College, one of two affirmative action cases the court is set to hear on Monday.

The pace of change

When Verna Williams, who is Black, argued a Title IX case before the Supreme Court in 1999, she said she felt like an outsider. The justices frequently interrupted her. She likened her experience to a sparring match.

When she returned to the court eight days later to watch the arguments in another Title IX case, Williams saw a veteran White Supreme Court lawyer engaging in friendly banter with the justices.

His name? John Roberts.

“It was clear that he had a relationship with the justices and they had inside jokes,” with the justices encouraging Roberts to finish his thoughts, she said. “My experience couldn’t be more different.”

Williams won her case, but like many attorneys of color, she never delivered another argument before the Supreme Court. She went on to lead the University of Cincinnati’s law school and started last month as the chief executive of Equal Justice Works, a nonprofit. She expressed dismay at how few Black women have argued before the court in recent years.

“You’d think we could make more progress,” she said. “But the reality is that the barriers to transforming the legal profession into something that resembles the nation are enormous and compounded the higher up one goes in the system.”