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.
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.
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.
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.
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.
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.”
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.
“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.’ ”
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.
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.
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.
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.
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.”
“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 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.
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.)
“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.”
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 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.
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.
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.”
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.”
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.
“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.”
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