Chapter 1: Actors in the Judicial Process
As the American public is becoming increasingly diverse (Keating and Karklis 2016) and aware of systemic discrimination, diversity is becoming a centerpiece of nearly every political discussion. On the heels of the 2018 midterm elections, the US Congress is more diverse than it has ever been (Cordes 2019). However, even in the historically diverse 116th Congress, women only make up 25 percent of the Senate and 23 percent of the House compared to 51 percent of the general population, and people of color compose 22 percent of Congress compared to over 40 percent of the general population (Hansen 2019).
Likewise, the federal judiciary also has a lack of diversity (Solberg and Diascro 2018), and this overall characterization is equally accurate at the highest level—the Supreme Court. The demographics of the Supreme Court have been quite consistent throughout its existence. There have only been six justices who have not been White men in the history of the Court (Campisi and Griggs 2018). All six of them have served since 1967, when Thurgood Marshall, the first African American male to become a Supreme Court justice, was appointed. Although the current Court is the most diverse Court in history, it is still demographically homogenous, with 67 percent male justices and 78 percent White justices. In addition to gender and race, the Supreme Court has historically been educationally homogenous. Of the fifty justices who have received a law degree, 32 percent graduated from Harvard, and 14 percent graduated from Yale (Dhillon 2014). The current Supreme Court is very similar in terms of education, with all nine of the justices attending either Harvard Law School or Yale Law School (Strauss 2018).
While there is an ongoing discussion about the diversity (or lack thereof) of the Court, there is almost no discussion about the diversity of the advocates who appear before it. Oral argument is open to the public and is the most visible aspect of the Court. Thus oral argument provides the best opportunity to examine the diversity of those who are influential to the Court’s functioning. Since today’s advocates are often tomorrow’s judges and justices, it is important that these individuals are included in the diversity discussion as well.
In order to practice before the Supreme Court, an attorney must first be admitted to the formal Supreme Court Bar. The barrier to entry is not high, and many lawyers will use it as a career marker even if they never intend to practice before the Court. Thus the formal Supreme Court Bar has many members. However, within the broader formal bar, a much smaller subsection exists: the lawyers who argue before the Court. These elite lawyers wield immense power and act as gatekeepers of the Court. They have the experience and relationships that allow them to shape the docket of the Supreme Court (McGuire 1995). Knowing the backgrounds and demographics of these attorneys is vital to understanding how they represent the overall populace as well as how the Supreme Court serves as a body of government. In order to get a complete understanding of how the Supreme Court works as an institution, we need to know about the justices and advocates.
There are three questions this investigation seeks to answer:
- How homogenous is the Supreme Court Bar? In order to assess this question, the Supreme Court Bar will be analyzed in terms of the following six characteristics: gender, race, law school attended, undergraduate institution attended, employment category, and Supreme Court clerkship status.
- Has the Supreme Court Bar changed since 1990? Comparisons between the current data and those from McGuire (1993) will be explored to look for any differences.
- How representative is the Supreme Court Bar? The demographics of the Supreme Court Bar will be compared to the national bar and to the US population as a whole to evaluate the representativeness of the body.
Before delving into the data, it is important to understand the historical background that contextualizes this analysis. There are four frames that must be examined. First, the concept of representation will be explored to establish the judiciary and the lawyers who argue before them as representative institutions. At the same time, I explore the impacts of descriptive representation both broadly and within the judiciary. Second, a history of the legal education system will explore the barriers to entry in the legal profession that continue to affect the makeup of the Supreme Court bench as well as the Supreme Court Bar. Third, the history of diversity within the legal profession will further explore barriers to entry and advancement in the field. Finally, the history of the Supreme Court Bar itself will be examined, including results of previous investigations into the homogeneity of the institution. Together, these four frames provide the context necessary to discuss homogeneity within the Supreme Court Bar and the resulting impacts.
Before evaluating the question “How representative is the Supreme Court Bar?,” it is critical to understand the functions and implications of representation. Hanna Pitkin’s 1967 book The Concept of Representation is often cited as the foundation for thinking about political representation. Pitkin lays out four different views of representation: formalistic, symbolic, descriptive, and substantive. Formalistic representation is simply the actual power granted from one entity to the representative. Both symbolic representation and descriptive representation center on the demographics of the representative body, exploring how accurately they mirror the public demographically and what the effects of that mirroring are. Substantive representation is concerned with how closely the representative mirrors the public in terms of his or her policy preferences and overall political ideology.
Pitkin limits political representation to elected positions, such as legislative bodies and, to some extent, the executive branch. This definition necessarily excludes judicial branch and nongovernment lawyers as a whole. However, this distinction does not serve well in systems that employ common law and where judges set precedents and make laws through their interpretations. In these systems, judges act on behalf of the state, and their actions can be ascribed to the state as a whole, which is how Hobbes viewed formalized representation (Pitkin 1967). Even lawyers in the private sector have a role in government. Alexis de Tocqueville viewed lawyers writ large as essential to a functioning democracy. Lawyers are the arbiters between the people and the government. They help the government ensure justice when citizens violate the law; conversely, lawyers also serve as a check on the government to ensure civil liberties are being maintained and that the government is obeying its processes (Diascro and Ivers 2006). In this sense, while not electorally representative, lawyers often act as representatives of the people and can therefore the Supreme Court bar can be evaluated in terms of its descriptive representation (Kenney 2013).
While lawyers may be representative, and Pitkin shows how we can evaluate representatives in terms of diversity, the bigger question is, Why should we? The effects of diversity are numerous. First, diversity is critical to the legitimacy and functioning of an institution. Second, descriptive representatives can serve as role models that show that institutions are accessible to people of their demographic group. Third, while not interchangeable, descriptive representation can often translate into substantive description through shared lived experiences.
Kenney (2013) argues that high levels of demographic diversity are essential for an institution in the same way that representation across geographic jurisdictions is essential. Using the example of the European Court of Justice, Kenney contends that the requirement to have one judge from every member country is a form of descriptive representation. In a hypothetical case in which one country is hurt by a ruling without a judge from that country weighing in on the decision, people within that country might be inclined to view the ruling, and the body as a whole, as illegitimate (Kenney 2013). In that same vein, Kenney asks, Why would qualities like gender and race be any different? In the United States, women and people of color are routinely affected by judicial rulings stemming from largely White and male benches. Thus it would follow that their perceptions of the judiciary as a whole would be injured in a similar way (Kenney 2013).
Empirical data backs up Kenney’s argument. Descriptive representation does increase positive sentiment toward the governing body (Tate 2003). When looking specifically within the judicial branch, Scherer and Curry (2010) found that there is a direct causal link between the amount of perceived representation of African Americans in the federal judiciary and the perceived legitimacy of the judiciary among African Americans. White people were less likely to support the judiciary if they perceived either Black people to be overrepresented or White people to be underrepresented on the judiciary (Scherer and Curry 2010). When an institution looks like you belong there, you grant it greater legitimacy and authority. Thus descriptive representation is extremely important to the legitimacy of the judiciary.
Another effect of descriptive representation is that it can provide role models. Having increased diversity within an institution signals to the citizens that the institution is not only for the dominant groups; it is for the marginalized communities as well (Sapiro 1981; Mansbridge 2003). This impacts the legitimacy of an institution, as discussed above, and breaks down barriers to entry for marginalized communities (Sapiro 1981). When people in marginalized communities see their own identities reflected in government institutions, they are more likely to see that position as an option for them in the future and are thus encouraged to pursue positions within the institution.
A third impact of diversity is that it has the potential to translate into substantive representation. It is certainly the case that descriptive representation does not automatically lead to substantive representation. After all, demographic groups are not monolithic, and individuals belonging to demographic groups can vary widely in their ideologies and values. Simply because there is a representative who is Black does not mean that the representative will represent the ideologies of all Black people. For example, Supreme Court Justice Clarence Thomas is the only Black justice currently serving on the Court, but he varies greatly from what the majority of Black Americans believe in terms of ideology (Clawson and Waltenburg 2009). There are instances in which Justice Thomas does draw on his identity in rulings, but they are few and far between. However, his presence on the Court still improves the legitimacy of the Court via descriptive representation.
There is mixed evidence as to the relationship between diversity and substantive judicial impacts. Kritzer and Uhlman (1977) indicate that male and female judges do not differ on overall sentencing behavior. Walker and Barrow (1985) find that there are no significant differences between male and female judges when it comes to how they view rights of the accused or how they rule on issues specifically designated as women’s issues. However, Spohn et al. (1985) found that female judges were twice as likely to incarcerate defendants.
It could be the case that although judges belonging to a certain demographic group do not always explicitly provide substantive representation for those groups, they do have a consciousness of the issues surrounding the identities they represent and can act as validators of the issues the group faces. Female judges tend to notice examples of gender bias and are more likely to agree with feminist propositions (Martin et al. 2002). Thus they are better able to identify and evaluate claims of bias against women. The same may be true of other identities.
Since oral argument is such a visible aspect of Supreme Court litigation, it stands to reason that the same three effects of descriptive representation listed above also apply to the advocates who appear before the Court. The attorneys act as representatives, and as such, examining how their identities may influence the legitimacy, accessibility, and substance of their work is crucial for this investigation.
In order to evaluate the homogeneity of the Supreme Court Bar, it is important to understand the pathway to the bar, beginning with law schools. Since law schools act as gatekeepers to the legal profession, demographics in law school shape the demographics of the legal profession.
The legal profession has undergone several key changes since the country’s inception that have transformed the field. One of these changes is the relatively recent development and subsequent importance of a formalized legal education known as law school. For most of the existence of the legal profession, people entered the field via apprenticeships with practicing attorneys. Although the legal academy was created in 1793 at the College of William and Mary (Moline 2003), it wouldn’t be until decades later that formalized legal education became the standard for entry into the profession. The early legal academy differed greatly in many aspects from the modern law school. First, the early legal academy was on the same level as an undergraduate degree. Upon formation in 1900, the American Association of Law Schools required that entrants needed only a high school diploma to enroll (Kirkwood and Owens 1961). Graduates of law programs would earn a bachelor of laws (LLB) degree rather than the now common juris doctorate (JD; Moline 2003). Second, early legal education programs differed in their focus. For most of the history of law schools, they were more focused on producing legal scholarship than on producing practicing lawyers. The education was more theoretical in nature and involved reading philosophical and religious texts (Moline 2003).
In the early nineteenth century, future Supreme Court Justice Joseph Story reorganized Harvard Law School to be more focused on teaching practical skills and treating law as a science rather than a craft (Moline 2003). By the 1870s, several other law schools followed suit. This would mark the beginning of the new approach to a legal education. Beginning in the early twentieth century, the legal academy took on the burden of training the next generation of practicing lawyers (Moline 2003). However, it would take decades for this change to permeate the field and for legal education to become the standard for all lawyers to receive prior to entering the workforce. The upper echelons of the legal profession, such as the Supreme Court, were slow to incorporate a legal education. It wasn’t until 1957, with the appointment of Justice Charles Whittaker, that every member of the Supreme Court received a formal legal education (Lat and Hill 2010).
In modern times, law school is a virtual necessity for any potential lawyer. While there are still some jurisdictions where a law degree is not a requirement for licensure, most require it (Farrell 2014). Even in those jurisdictions that do not require it, test takers coming out of apprenticeships are few and far between. In 2013, only 60 of the almost 84,000 (0.07 percent) bar examinees did not have a law degree. Only 28 percent of apprenticed lawyers passed a bar exam compared to 78 percent of people who went to a law school accredited by the American Bar Association (ABA; Farrell 2014).
Law schools have historically been dominated by White males. Upon opening, many law schools explicitly excluded women. Ada Kepley was the first woman to graduate from law school in 1870 from what would eventually become Northwestern Law (Northwestern Law 2017). However, several prestigious law schools continued their female exclusion policy well into the twentieth century. For instance, Harvard Law School didn’t begin admitting women until 1950 (Massari 2003). Once they began to be admitted, women remained a minority for decades. It wasn’t until the 1985–86 school year that women made up 40 percent of law school enrollees (American Bar Association 2013), and women didn’t become the majority in law schools until the 2016–17 school year, even though they make up 51 percent of the US population (Olson 2016).
People of color have also been systematically excluded from law school in the past. Historically, there was no real option for Blacks to get a legal education prior to the opening of Howard University in 1867 (Corbett 2008). However, enrollment was extremely limited, and it took nearly seventy years before other historically Black colleges and universities (HBCUs) would open law schools (Corbett 2008). It wasn’t until 1950 that law school became desegregated by order of the US Supreme Court in Sweatt v. Painter 339 US 629 (1950). In Sweatt, the Court ruled that there was no equivalence between a hastily established Texas law school for Blacks and the well-established White-only University of Texas (UT), and thus UT may not discriminate based on race (Corbett 2008). The ruling in Sweatt desegregated law schools on paper.
However, the legal desegregation of law schools did not remove all barriers to entry for people of color. The admissions process into most law schools greatly emphasizes the Law School Admission Test (LSAT; Randall 2006; Corbett 2008). The LSAT has been shown to be biased against minority groups and has been used as a reason to reject applicants of color (Randall 2006).
Affirmative action programs implemented in the 1950s and 1960s did help increase minority enrollment; however, there has been a stagnation of minority enrollment in the twenty-first century (Corbett 2008). Minority enrollment lagged behind the general population for many years, and in 2016, just 32 percent of all entering law students were ethnic minorities, though they compose 40 percent of the total US population (Corbett 2008; American Bar Association 2018).
Law schools have been making other efforts to increase the diversity of their student body in recent years. The designator “underrepresented minority” (URM) was created to try to counteract some of the implicit bias present in the utilization of the LSAT. Being a URM does increase one’s chances of admittance in law schools, and that advantage is higher in the higher tiers (Plainview 2017). However, those URM advantages don’t always correlate to an increase in the proportion of URM students in law schools. In fact, law schools with high LSAT medians (which tend to correlate with high rankings) were more likely to see a drop in the percentage of students of color between 2010 and 2013 (Taylor 2015). In that same time frame, bottom-tier schools have seen a sharp increase in the proportion of students of color attending (Taylor 2015).
While in the aggregate law schools are becoming diverse, that will not necessarily translate into the upper echelons of the legal profession due to the stratification of law schools into different tiers and the implications for employment after graduating. While the most famous and widely cited rankings come from the US News and World Report (USNWR), several other rankings exist, such as the Above the Law Top 50 Law School Rankings, the Academic Ranking of World Universities, and the Times Higher Education World University Rankings, among others. Each of these rankings has a different methodology, yet they all tell a similar story: there are tiers of law schools. The highest tier includes the Ivy League, Stanford, and the University of Chicago. While the exact cutoff between Tier 1 and Tier 2 schools is difficult to ascertain, it is clear that these schools have a distinct advantage in placing their graduates into legal jobs in terms of both quantity and quality. The 2018 ABA employment reports indicate that the top twenty law schools (according to the USNWR) placed, on average, 87 percent of students into jobs that require passage of the bar compared to 64.7 percent on average for schools outside of the top twenty. Additionally, top-twenty schools placed 44 percent of their graduates into firms with over 500 people compared to 4 percent of graduates from schools outside of the top twenty. Firms with over 500 people tend to be the most prestigious and well-paid in the country. Eighty-eight percent of the Vault 50 and 79 percent of the Vault 100 most prestigious firms in the US have more than 500 lawyers, and the average number of lawyers at a Vault 100 firm is 1,176 (Vault 2018). With this in mind, it is clear that “elite” law schools have an outsized role in the legal profession. Thus an understanding of the diversity of these law schools is critical in order to understand the diversity of the upper tiers of legal employment.
When just focusing on the USNWR Top 20, the numbers shift slightly from the overall percentages. The proportion of women is slightly lower in the top twenty (50 percent) than in the rest of the schools (51.51 percent). There is a much greater disparity when looking at students of color. Students of color only make up 29 percent of the students in the top twenty, while they make up 32.7 percent of students in the rest of the schools (American Bar Association 2018). So while law schools appear to be representing students proportionally at face value, women and minority students are more likely to attend lower-ranked schools, which can affect bar passage chances as well as employment prospects. Lower-ranked schools do not provide the same opportunities to access the upper echelons of the legal profession, such as clerkships and appearing in front of the Supreme Court.
The legal profession, much like law schools, is a historically exclusive industry. Both women and people of color face several hurdles, explicit and implicit, in trying to enter the legal profession. While progress has been made, significant obstacles still exist.
Women were explicitly banned from practicing law for many years. Belle Babb Mansfield became the first woman admitted to a state bar when in 1869, Iowa admitted her (Morello 1986). At the time, Iowa was the only state bar that admitted women. In 1872, the Supreme Court heard Bradwell v. Illinois, 83 US 130 (1872), in which Myra Bradwell appealed a decision by the Illinois Supreme Court that had prevented her from being admitted to the Illinois state bar. The Supreme Court ruled in favor of Illinois, thus causing a major setback for women. The Court ruled that practicing law was not a right guaranteed by the Privileges and Immunities Clause of the Fourteenth Amendment, and thus Bradwell did not have a right to be admitted to the Illinois state bar (Bradwell v. Illinois). As her case was moving up to the Supreme Court, Bradwell and other feminist activists successfully pushed for a law in the Illinois state legislature that made gender-based discrimination in employment illegal (Willis 2017). Thus Bradwell and women at large were allowed into the Illinois state bar in 1872.
However, the simple removal of explicit barriers to enter bar admissions did not guarantee gender equality in the profession. In addition to the law school discrimination discussed above, women face implicit bias in the legal field. Even into the twenty-first century, the stereotype that women belong in the home more than the office continues to persist. This stereotype negatively affects women’s ability to enter and move up in the legal field especially (Negowetti 2015).
Currently, women still only make up around 36 percent of the national bar (American Bar Association 2017). While this is an improvement from ten years ago, when women made up only 32 percent, women still constitute a sizeable minority of lawyers, especially considering they now make up a majority of law school classes. With the recent arc toward parity in law school entrants and graduates, the barriers for entry into the field may be eroding. However, the barriers to advancement in the field remain firmly in place.
Many prestigious positions within the legal field remain heavily male-dominated. In private practice, men only make up 55 percent of associates yet constitute 82 percent of managing partners, 82 percent of equity partners, and 78 percent of partners (American Bar Association 2017). In 2016, only 35 percent of lawyers who were promoted to partner were female (Minority Corporate Counsel Association 2017). In-house counsels for major corporations are also male-dominated: 75.2 percent of Fortune 500 in-house counsels are male (American Bar Association 2017). Additionally, the wage gap is present in the legal field, with female lawyers making less than 90 percent of the wages of male lawyers.
The public sector sees much the same disparity that the private sector sees. While women made up 51 percent of total clerkships in 2009, they made up just 45 percent of the most sought-after federal clerkships (National Association of Law Placement 2010). In 2015, women made up just 38 percent of assistant US attorneys (Mukamal and Sklansky 2015). The pattern holds in the judiciary as well, with women being underrepresented in judgeships. In 2016, women made up 33 percent of the Supreme Court, 35.9 percent of the federal courts of appeal, and 33 percent of the federal district courts (American Bar Association 2017). State courts reflect a similar pattern, with 30 percent of state judgeships being occupied by women (American Constitution Society 2017).
People of color have also had a difficult time breaking through in the legal field. Although there hasn’t been the explicit discrimination by state bar associations that women faced, racist attitudes have long made it challenging for people of color to succeed in the legal profession. The first lawyer of color was Macon B. Allen, who was admitted to practice in Maine in 1844 (Conway 2017). However, Allen was not joined by many other Black lawyers. For instance, in Virginia, there were only 54 Black attorneys in 1900 despite there being more than 660,000 Black residents in Virginia at the time (Marshall 2003; US Census Bureau 1901).
Similarly to women, people of color face significant implicit bias in professional life. People of color in law firms face discrimination in the hiring process and lawyer evaluations. It has long been established that there is severe discrimination in job interviews, with people of color often receiving less interview time and eye contact than White applicants (Word, Zanna, and Cooper 1974). Traditionally White-sounding names will get more callbacks than traditionally Black or Hispanic names (Bertrand and Mullainathan 2003). These forms of discrimination are seen in the legal field, as the ideal law candidate tends to be described as having traits that are associated with White male professionals (Negowetti 2015).
Even after an attorney of color has been hired, he or she faces implicit bias in the workplace. In firms, associates of color will often receive lower-profile cases than similarly situated White associates (Negowetti 2015). The effect of this is twofold. First, it often disadvantages associates of color when it comes to partner promotions (Negowetti 2015). Roughly 25 percent of law firm associates are minorities, but only 10 percent of equity partners are (Minority Corporate Counsel Association 2017). Second, it negatively affects the ability of attorneys of color to make connections in the law firm, which causes high attrition rates (Negowetti 2015). Attorneys of color make up 27 percent of leaving attorneys despite only representing 16 percent of law firm attorneys (Minority Corporate Counsel Association 2017).
The ills of implicit bias in legal employment are not limited to law firms. In 2010, 16 percent of all clerkships and 14 percent of federal clerkships were held by people of color (National Association of Law Placement 2010). Judgeships are also hard to come by, as only 21 percent of federal judges (Federal Judicial Center 2017) and 20 percent of state judges are minorities (American Constitution Society 2017).
While the once-immense barriers to entry are being broken by women and people of color in the legal profession, these groups are still wildly underrepresented in prestigious positions.
Supreme Court Bar
There are more than three hundred thousand lawyers admitted to the official bar of the US Supreme Court (Robinson 2016). Admittance is often viewed as a symbolic recognition of accomplishment in the legal field. In order to be admitted, a lawyer must (1) be admitted into and in good standing with the highest court in their state for three years and (2) be sponsored by two members of the Supreme Court Bar (Supreme Court 2018). As a result of the high rates of entry as well as the lack of purging of the bar, the official Supreme Court bar is massive. However, most of those individuals will never engage directly in litigation before the Supreme Court. Given the cumbersome and inaccurate nature of this official listing, most research into the Supreme Court Bar focuses on those who are actively engaged in Supreme Court litigation. McGuire (1993) defined the active Supreme Court Bar as those engaged in any stage of Supreme Court litigation, encompassing the certiorari phase, merits briefing, and the most visible stage: oral argument.
While McGuire’s definition does capture every aspect of Supreme Court litigation, when looking specifically at representation, I argue it should be limited to the most visible aspect of litigation: oral argument. Oral arguments are consistently displayed to the public in mainstream newspapers and blogs and other online articles (examples include Liptak 2018; Gray 2018). Since representation requires the body being represented (in this case, the people) to be aware of the representation, the focus on oral argument and the personalities involved make it the best arena for assessing representation.
In addition, advocates who appear in front of the Court multiple times act as gatekeepers who have disproportionate influence over the docket of the Court. Due to their reputations and experience litigating matters before the Court, these “repeat players” are often more successful and influential than “one-shotters” (McGuire 1995; Galanter 1974). Thus for the purposes of this chapter, the Supreme Court Bar will be defined as those advocates who appear in front of the Court in oral argument.
The biggest group of repeat players are members of the office of the solicitor general (OSG). Tasked as the official representation of the US government before the Court, this office is involved in most Supreme Court cases. The OSG has a great deal of influence during all stages of litigation. A brief from the OSG supporting a petition for certiorari can dramatically increase the odds of that petition being granted (Teger and Kosinski 1980; Caldiera and Wright 1988). Attorneys in the OSG are quite experienced in appellate litigation (DeSousa and Meyer 2013). Like the rest of the profession, OSG is heavily male-dominated. Until the appointment of future Supreme Court Justice Elena Kagan in 2009, there had not been a permanent female solicitor general (SG; Sarver 2008).
In the private sector, the legal field has been specializing rapidly to the point where there are litigators who almost exclusively practice appellate litigation (Marvell 1978). It isn’t uncommon for a case to change hands from one lawyer to another as it moves up in the appeals process (Marvell 1978). Many of the most frequent Supreme Court advocates, such as Carter G. Phillips and Paul Clement, are specialists and have experience in the OSG. Firms will often hire people out of that office to bolster their appellate litigation divisions (Alder 2018).
One way the Supreme Court Bar has been quite limited historically is by geography. Since the Court is in DC, lawyers in close proximity to DC had a “practical monopoly” for many years (Warren 1911). Although transportation is more readily available in modern times, the clustering of legal markets has caused this to be repeated in more modern times (McGuire 1993). In 1990, Washington, DC; New York; and Chicago were all overrepresented in the Court when compared to the percentage they make up of the national bar (McGuire 1993). The concentration of litigators is likely due to the types of cases that make it to the Supreme Court. The large firms located in these markets are more likely to have clients that will be subject to Supreme Court litigation (such as major corporations), and thus those firms are more likely to appear than smaller firms (McGuire 1993).
The Supreme Court Bar has also been historically limited in other demographics. Given the history described earlier, it is not surprising that male litigators far exceed female litigators in all aspects of the Supreme Court Bar (McGuire 1993). Men tend to dominate most of the traditional paths to Supreme Court litigation—federal clerkships and working in the OSG are stepping-stones to the world of high-level appellate advocacy (Sarver 2008). This has translated to a domination of Supreme Court litigation as well.
In 1990, women only made up 7.3 percent of the Supreme Court Bar despite making up 13 percent of the national bar (McGuire 1993). From 1993 to 2001, 98.38 percent of oral arguments had at least one male advocate; however, only 23.27 percent of oral arguments had at least one woman advocate (Sarver 2008). Through the first half of October term 2018, women constituted only 15 percent of Supreme Court advocates (Robinson and Rubin 2019).
In addition to gender, the Supreme Court Bar has been historically homogenous in terms of race. McGuire (1993) found that the Supreme Court Bar was 98 percent White. Part of this was due to low numbers of lawyers of color in the national bar (particularly among Hispanics). However, even when national bar proportions are taken into consideration, ethnic minorities are still underrepresented.
The Supreme Court Bar also tends to be elite in its education. Lawyers from “distinguished” and “strong” law schools have been overrepresented in the Supreme Court Bar. Harvard, the University of Michigan, and the University of Texas at Austin were the top three represented schools. All three of these schools are in the USNWR Top 20. Educational homogeneity was even more pronounced when just looking at the “inner circle of the Bar,” defined as those who participated in more than one merits case before the Supreme Court from 1977 to 1982. Within that group, 53.3 percent of lawyers went to “distinguished” schools, and 18.8 percent attended “strong” schools. Harvard, Yale, Columbia, and the University of Chicago are the top four schools represented in this “inner circle,” collectively making up 32.2 percent (McGuire 1993). These four schools are all within the top five of the USNWR rankings.
These four concepts combine to give the necessary context to this investigation and its importance. With those frames in mind, I will now go into the methods that will govern this investigation.
Data and Methods
All analyses employ population data of attorneys participating in oral arguments before the Supreme Court between October term 2005 and October term 2016. Six different characteristics were collected for each lawyer: gender, race, employment at the time of the argument, law school attended, undergraduate institution attended, and whether they had a Supreme Court clerkship. Law schools were grouped into tiers via the USNWR rankings: Tier 1 (one through twenty), Tier 2 (twenty-one through fifty), and Tier 3 (all remaining law schools). Undergraduate institutions were categorized as either public or private.
Throughout my analysis, I employ two different ways of measuring the membership of the Supreme Court Bar. The first measure is the total number of appearances at oral argument (N = 2,173). Since there are some advocates who appear before the Court multiple times in the period under study, the number of oral argument “slots” allows for accurate measuring for who the Court and the public see most often. The second measure is the individual lawyers (N = 876), which is simply just treating every lawyer, regardless of the number of times he or she has appeared, as one. For example, Paul D. Clement, who has fifty-eight appearances before the Court, accounts for fifty-eight slots but only one individual lawyer.
Slots measure the frequency of who the Court and the public see, so this measurement is more useful when evaluating representation. In order to determine if a group is under- or overrepresented, it is necessary to know not just whether the group is being represented but also the extent to which they are being represented. All three impacts of representation discussed in the previous section depend on visibility, which is determined by frequency of appearance.
However, looking at the individual level is still useful when it comes to assessing the level of access a group has to the institution, even if their representation does not reflect that access. McGuire (1993) uses individual-level data, so all comparisons to that data use individual-level data as well. Demographic information came from legal directories such as Martindale-Hubbell, official firm websites, or sites managed by the lawyers themselves (such as LinkedIn), with the Oyez Project and C-SPAN providing some pictures that were used to determine ostensible gender and race.
The characteristics are analyzed separately, and the three research questions will be analyzed according to the following explanations.
- How homogenous is the Supreme Court Bar? In order to assess this question, the Supreme Court Bar will be analyzed in terms of the following six characteristics: gender, race, law school attended, undergraduate institution attended, employment category, and Supreme Court clerkship status. Both slot-level and individual-level data are compared.
- Has the Supreme Court Bar changed since 1990? The demographics of the individuals who argued in front of the Court during the Roberts Court will be compared to those from McGuire (1993) in terms of gender, race, and law school attended.
- How representative is the Supreme Court Bar? The demographics of the Supreme Court Bar will be compared to the national bar and to the US population as a whole to evaluate the representativeness of the body in terms of racial and gendered makeup.
P-values represent the probability that the observed difference is caused by chance. This study uses a 95 percent confidence level, so any p-value that is less than 0.05 is considered statistically significant. All p-values in the tables are derived from results of difference in proportions tests. It is worth noting that the comparisons between these data and McGuire (1993) are imperfect due to the slight difference in the operational definitions of the Supreme Court Bar. However, due to the factors explained above, I believe that it is very likely that those who made it to the oral argument stage in 1990 were less diverse than the population of those participating in general. Thus if these differences have any effect on the conclusions of this investigation, they only serve to make the conclusions stronger due to the fact that any increases in diversity seen would likely have been even bigger if the two definitions were identical.
Results and Discussion
The Supreme Court Bar is still extremely male dominated (see tables 4.1.1 and 4.1.2). Despite the more than twofold increase in women’s proportion of the Supreme Court Bar from 1990 to the Roberts Court, women still only make up about 16 percent of the Supreme Court Bar. There are a couple possible explanations for this minor incremental change.
|Toal Argument Slots||Individual Attorneys||Difference (Slot-Indiv_||p-Value|
|Male||1804 (83.02%)||724 (82.65%)||0.36||0.81|
|Female||362 (16.66%)||145 (16.55%)||0.1||0.95|
|Unknown||7 (0.32%)||7 (0.80%)||-0.48||0.07|
|Non-SG Individuals (n=831)||McGuire (n=325)||Difference||P-Value|
|Oral Argument Slots||National Bar||Difference||p-Value|
|Oral Argument Slots||National Population||Difference||p-Value|
The first possible explanation is that while the change is small, it is commensurate with the shifts elsewhere in the legal profession ladder. Back in 1986, the national bar was about 13.1 percent women compared to 36 percent in 2017 (Curran et al. 1986 qtd in McGuire 1993; American Bar Association 2017). Women’s representation is increasing at a similar rate in both the national bar and the Supreme Court Bar. In the national bar, women make up 2.7 times the proportion they made in 1986 compared to women making up 2.3 times as much in the Supreme Court Bar. Additionally, there was no significant difference in the proportion of slots and bar membership, and men and women had no differences in the average amount of cases per person, suggesting that women and men participate at equal rates once they have made it to the Supreme Court Bar. If that is the case, then perhaps the increase is just a “trickle up” effect from women making up a larger share of the national bar and law schools. Under this theory, women’s representation in the Supreme Court Bar is likely to continue to increase, as women now make up the majority of law students (Olson 2016). Additionally, if this is the case, parity is not likely to happen anytime soon given the sheer size of the legal industry and the embeddedness of gender norms in the profession.
While it seems plausible, there is one major flaw in this explanation: in terms of frequency of appearances, men dominate both the top and bottom. The top ten most frequent attorneys before the Court were all men, with an average of thirty-nine appearances. The most frequent female attorney was the twelfth most frequent overall with twelve appearances. The top ten women were ranked twelfth, nineteenth, twentieth, twenty-third, twenty-ninth, thirty-third, thirty-fifth, thirty-sixth, thirty-seventh, and forty-fifth and had an average of fifteen appearances. At the other end of the spectrum, there were 653 attorneys who only argued one case, and 542 of them were men, which dramatically drags the average for male attorneys down. So even though appearances in oral argument is proportional to the overall membership of the informal Supreme Court Bar, a deeper dive into the data suggests that male attorneys make up the elite of the elite.
A second potential explanation lies in the OSG. This office makes up a full 30 percent of oral argument appearances. As part of the executive branch, the OSG is shaped by the president. The current investigation spans the last half of the George W. Bush administration and the entirety of the Barack Obama administration. President Obama has had a demonstrated commitment to increasing diversity in the government as a whole but especially in the judicial branch (Solberg and Diascro 2018). President Obama’s desire for diversity carried over into the OSG. Not only did he name the first female SG in Elena Kagan (Oyez 2019), but his hires were considerably more diverse than the prior OSG and the Supreme Court Bar overall. There were 266 oral argument slots that were argued by attorneys hired by the Obama administration. Of those 266, 107 (40.2 percent) were by women. For comparison, 23.76 percent of all OSG arguments and 16.66 percent of all oral arguments were performed by women. Female members of the Obama OSG argued nearly 30 percent of all oral arguments by women. If all Obama OSG hires are removed, women’s share of oral argument slots decreases from 16.66 percent to 13.42 percent, which is significant (p = 0.0397). So President Obama’s appointments did make a difference in the representation of women in the Supreme Court Bar.
|Total Argument Slots||Individual Attorney||Difference (Slot-Indiv_||p-value|
|White||1869 (86.01%)||728 (83.11)||2.9||0.042|
|Black||24 (1.10%)||11 (1.26%)||-0.16||0.71|
|Latinx||28 (1.29%)||15 (1.71%)||-0.42||0.37|
|Asian||123 (5.66%)||18 (2.05%)||3.81||<0.0001|
|Other/Unknown||129 (5.94%)||104 (11.87%)||-5.93||<0.0001|
|Non-SG Individuals (n=831)||McGuire (n=325)||Difference||P-Value|
Similar to gender, the Supreme Court Bar is still dominated by White lawyers, with 86 percent of oral argument slots and 83 percent of all lawyers (see table 4.2.1). At first glance, it appears that the Supreme Court Bar has been diversifying, though, with White attorneys’ share decreasing from 98 percent in 1990 (see table 4.2.2). However, there’s some reason to be skeptical of this assessment. Eleven percent of all lawyers in the Supreme Court Bar were not able to be identified with a certain race. Meanwhile, Asians were the only minority group to see any significant increase. Excluding lawyers whose race is unknown, White attorneys constitute 91.4 percent of oral argument slots and 94 percent of individual lawyers. So while there has been some progress in representation, the racial makeup of the Supreme Court Bar has not shifted nearly as much as it has in the case of gender.
The one group that has made significant progress is Asians. In 1990, there were no Asians in the Supreme Court Bar, but from 2005 to 2016, they made up 5.9 percent of oral argument slots and 2 percent of total lawyers. Asian lawyers are vastly overrepresented in oral argument given their total Supreme Court Bar membership. This is likely caused by the prevalence of Asian lawyers in the OSG. The top five Asian lawyers by frequency all had significant OSG experience and were among the lawyers who appeared in front of the Court the most. Those five made up 85 percent of all oral arguments performed by Asians as well as 60 percent of all oral arguments performed by attorneys of color.
Black and Latinx representation has remained pretty stagnant, with no significant differences in their percentages from 1990 to the Roberts Court. There has been one Black attorney with twelve appearances (from the OSG) and two Latinx attorneys with seven appearances each (one from the OSG, one solely from the private sector). Every single other Black and Latinx attorney had three or fewer appearances. Given the advances Black and Latinx people have made in the upper echelons of the professional world, this would seem to indicate that there are additional barriers in the legal field that prevent these two groups from increasing their representation.
Another interesting thing is the intersection between race and employment. Minority attorneys are more likely to represent interest groups. Appearances on behalf of interest groups only make up 3.3 percent of all oral arguments yet make up a significant portion of minority representation. Attorneys appearing as part of an interest group were more diverse than the bar as a whole, with 75.3 percent of them being White, 6.8 percent being Black, 4.1 percent being Latinx, and 6.85 percent being Asian. The trend becomes clearer when looking at the percentage of a racial group that interest group lawyers make up (see table 4.2.3).
|Race||Interest Group Lawyers||% of IG lawyers||% of Racial Group that are IG lawyers|
Only 2.9 percent of appearances by White lawyers are from interest groups compared to 20.8 percent of appearances by Blacks, 10.4 percent of appearances by Latinx attorneys, and 4.1 percent of appearances by Asians. So not only are interest group lawyers more diverse than the rest of the Supreme Court Bar, but they also constitute a significant percentage of minority appearances.
In the gender section, a theory was explored suggesting that President Obama’s commitment to diversity throughout his administration made a difference in the number of women appearing before the Supreme Court. In addition to gender diversity, President Obama was also dedicated to racial diversity. Did this translate into a racial diversification of the Supreme Court Bar through the OSG? Yes, although less so than for gender. During the Obama administration, several attorneys of color were hired, and oral argument appearances were more diverse than the Supreme Court Bar on average. Seventy-four percent of appearances in this category were White, 4.1 percent were Black, 3 percent were Latinx, and 9.4 percent were Asian. Obama hires to the OSG constituted a major percentage of appearances before the Court for minorities, with 45.8 percent of Black appearances, 28.6 percent of Latinx appearances, and 20.3 percent of Asian appearances. Overall, Obama administration hires made up 25 percent of all appearances by attorneys of color.
|Total Argument Slots||National Bar||Difference||p-value|
|Total Argument Slots||National Population||Difference||p-value|
Compared to the national bar and the national population, minorities are immensely underrepresented. White lawyers are actually at parity representation when compared to the national bar but are vastly overrepresented when it comes to the overall US population. Asian attorneys are overrepresented based on their proportion of the national bar but at parity representation with respect to their share of the US population. Both Black and Latinx lawyers are underrepresented compared to both the national bar and the US population.
|Argument Slots||Individual Attorney||Difference (Slot-Indiv)||p-value|
|Tier 1||1628 (74.92%)||484 (55.25%)||19.67||<0.0001|
|Tier 2||218 (10.03%)||126 (14.38%)||-4.35||0.0007|
|Tier 3||265 (12.20%)||224 (25.57%)||-13.37||<0.0001|
|Unknown||62 (2.85%)||42 (4.79)||-1.94||0.0104|
There is clear stratification among the different tiers of law schools. Those attending Tier 1 schools, defined as the top twenty schools in the USNWR rankings, made up just over half of the bar (55 percent) but about three-fourths of the oral argument (75 percent), making them vastly overrepresented in oral argument (p < 0.0001). Meanwhile, both Tier 2 (USNWR twenty-one through fifty) and Tier 3 (all other schools) are significantly underrepresented in oral argument. Attorneys from Tier 1 schools argued, on average, 3.36 times before the Court compared to 1.73 times for attendees of Tier 2 schools and 1.17 times for layers from Tier 3 schools. The top ten most frequent advocates all went to Tier 1 schools, averaging 39 oral arguments. The most frequent advocate from a Tier 2 school argued thirty times, and the most frequent advocate from a Tier 3 school argued twenty-four times. However, both of them were from the OSG. All of this suggests that while people are able to argue before the Court from all tiers of law schools, in order to be a repeat player, it is a virtual necessity to go to a highly ranked school.
Breaking down the tiers more, the data point to even more concentration at the top. the top three schools in the USNWR rankings (Yale, Stanford, and Harvard) are vastly overrepresented, with graduates making up 24 percent of the bar but 37 percent of the oral arguments (p < 0.0001). The top six schools (the top three plus Chicago, Columbia, and NYU) are also overrepresented, with 35 percent of the Supreme Court Bar and nearly half (49 percent) of oral arguments (p < 0.0001). Overall, there are three times as many appearances from graduates of Tier 1 schools than of all other schools combined.
Of the top ten most frequent advocates, nine of them are from USNWR top ten schools. Of these, three are from Yale, which has been number one every year since the rankings have existed.
|Non-SG Individuals (n=831)||McGuire (n=324)||Difference||P-Value|
On an individual level, the Supreme Court Bar seems to be even more top-heavy than it was in 1990 when it comes to individuals who are unaffiliated with the OSG (see table 4.3.2). Three different law schools experienced statistically significant changes between 1990 and 2005–16. The University of Michigan law school’s share of the Supreme Court Bar was nearly cut in half from 5.3 percent to 2.7 percent (p = 0.0438). The University of Alabama’s law school share dropped from 2.5 percent to 0.12 percent, having only one lawyer argue in the first twelve years of the Roberts Court (p < 0.0001). The only school that had a significant increase was Yale Law School, which saw its representation increase more than fivefold from 1.5 percent to more than 8 percent (p < 0.0001). Harvard Law School’s increase is squinting toward significance (p = 0.06303). Of the statistically insignificant changes from 1990, only three of them are increases, and all three of those schools are in the USNWR top 10.
Intuitively, it does make sense that an institution in the upper echelons of a field would require top-notch credentials and thus have proportionally more lawyers from the top-ranked law schools. However, when there is such a concentration of power at the very top as there is in the Supreme Court Bar, then those law schools effectively act as intellectual bottlenecks, and the schools themselves can have an outsized influence on the institution.
With that in mind, it would also follow that an office as prestigious as the OSG would be filled with people with high credentials—in this case, degrees from top law schools. The data bears this expectation out, with over 90 percent of oral argument slots and 82 percent of individual lawyers from the OSG coming out of Tier 1 law schools. While slots from Obama hires to the OSG were only 86 percent from Tier 1 law schools, it is still more than the overall Supreme Court Bar average, so President Obama didn’t significantly change the office in that regard.
|Total Argument Slots||Individual Attorneys||Difference (Slot-Indiv)||p-value|
|Private||1445 (66.50%)||499 (56.96%)||9.54||<0.0001|
|Public||627 (28.85%)||302 (34.47%)||-5.62||0.0023|
|Unknown||101 (4.65%)||75 (8.56%)||-3.91||<0.0001|
Undergraduate schools are polarized in the Supreme Court Bar, albeit to a lesser extent than law schools. Unlike law school, there is no predominant ranking system for undergraduate institutions, especially given the diversity of majors available. Thus this investigation is solely focused on public versus private undergraduate institutions. While not a perfect proxy, private institutions are commonly considered to be more prestigious than public universities (Wong 2018). Private undergraduate institutions are overrepresented in oral argument relative to their individual representation in the Supreme Court Bar, with 66.5 percent of the argument slots and only 57 percent of the individual lawyers. Likewise, public undergraduate institutions are underrepresented in oral argument.
Undergraduate institutions in and of themselves probably are not a great predictor of arguing in front of the Court. After all, there are 13.3 million college students in the United States, with around 3.4 million of them attending private universities (NCES 2018; NAICU 2018). With the many different types of undergraduate majors and programs available, simply going to a private school does not dramatically increase those chances. However, going to an elite school can often shape the opportunities one has after attending (Wong 2018). In that sense, it is important to see if elite undergraduate colleges translate to a more elite law school placement.
In the Supreme Court Bar, there is an association between tier of law school and type of undergraduate institution. Sixty-nine percent of those from private undergraduate schools went to Tier 1 schools compared to just 41 percent from public undergraduate schools. Additionally, of those from Tier 1 law schools, 71 percent went to private institutions and 25 percent to public institutions. For Tier 2 law schools, the proportions are exactly the same, with 48.4 percent of them coming from private institutions and 48.4 percent coming from public institutions. In Tier 3 law schools, only 41 percent come from private and 51 percent come from public schools. This would suggest that the path to the Supreme Court Bar starts even before matriculating into law school.
|Total Argument Slots|
|Federal Government||684 (31.48%)|
|State and Local Government||233 (10.72%)|
|Vault 100 Firm||620 (28.53%)|
|Other Firm||316 (14.54%)|
|Public Defenders||77 (3.54%)|
|In-House counsel||5 (0.23%)|
As has been noted previously, the OSG dominates oral argument slots, claiming 31.5 percent. The impact of the OSG is not limited to its direct representation, though—several of the top private Supreme Court litigators had experience in the OSG. The next biggest group is Vault 100 firms, which make up 28.53 percent of the slots. Of the twenty-six lawyers who argued ten or more cases, twenty-three of them spent at least some of their slots representing the OSG. The other three also had OSG experience, including one SG; they just did not spend time there during the Roberts Court. Attorneys such as former SG Paul Clement, former SG Theodore Olson, and former acting SG Neal Katyal have all left the OSG to join lucrative practices in Vault 100 firms, which are the second-most represented employment category.
|Non-SG individuals (n=831)||McGuire (n=325)||Difference||P-Value|
|State and Local||19.45||16.61||2.84||P=0.296|
Once the OSG is removed, the attorneys from both Vault 100 and non–Vault 100 firms make up a majority of the Supreme Court Bar. However, the share of private practice attorneys has actually decreased by 31 percent since 1990. With the exception of in-house corporate lawyers, every other category saw an increase, with all but one being statistically significant. Legal aides and public defenders saw the biggest increase, jumping from 1.54 percent to 8.42 percent. Some of this increase could be due to the changing nature of the Supreme Court docket. From 1978 to 1997, cases about criminal procedure represented 23.98 percent of all cases, while from 1998 to 2017, they represented 27.75 percent, which is a significant increase (two-sided p-value = 0.004; Spaeth et al 2018). Since public defenders and legal-aid clinics focus on criminal cases, an increase in the proportion of the docket would naturally result in an increase in the number of slots that they would occupy. Coupled with the fact that most public defenders will only appear once (five of the seventy public defenders who appeared before the Court had multiple arguments, and two of those five were solely due to a second oral argument in the same case), a significant increase in the proportion of criminal procedure cases is very likely to have contributed to the rise in proportion of public defenders.
The next largest increase was organized interests, such as the American Civil Liberties Union (ACLU) or the Judicial Crisis Network. Interest groups are nothing new to the Court, with groups such as the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund consistently turning to the Court to advance their causes (Collins 2008). Additionally, interest groups such as the Federalist Society and the Heritage Foundation have massive power in the nomination process of not only the Supreme Court but also the rest of the federal judiciary (Baum and Devins 2017; Kelly 2018). The American public is looking toward the Court (rather than Congress) to resolve certain issues, such as abortion or gerrymandering (Tavernise 2018; Daley 2018). The Supreme Court has even become a campaign issue, with candidates in both the Democratic and Republican Parties creating litmus tests for judges they would nominate (Debenedetti 2016; Wolf 2016). The increasing view of the Supreme Court as a political institution, combined with the lack of productivity in Congress, might be driving the movement toward using the judiciary to enact policy, which would explain the increase in interest groups.
Academic representation has also increased significantly, from 1.85 percent in 1990 to 5.30 percent in 2018, which is driven by the rise in clinical education. Passed in 2016, ABA standard 303(b) requires law schools to offer substantial opportunities to participate in clinical work (Stark and Hunt 2018). Clinical education offers law students the opportunity to get experiential training in legal work by participating in real legal cases (Stark and Hunt 2018). Clinics often focus on a type of practice, such as housing law or family law. Appellate clinics have become quite popular and have taken cases to the Supreme Court (Fisher 2013). Both Stanford Law School and the University of Virginia School of Law have had multiple arguments in front of the Roberts Court, with Stanford’s clinic boasting seven different appearances.
|Total Argument Slots||Individual Attorneys||Difference (Slot-Indiv)||p-value|
|Yes||945 (43.49%)||169 (19.29%)||24.2||<0.0001|
|No||1228 (56.51%)||707 (80.71%)||-24.2||<0.0001|
Relative to their share of individual lawyers in the Supreme Court Bar, attorneys with a Supreme Clerk clerkship are overrepresented, with 43.5 percent of the oral arguments and only 19.3 percent of individual lawyers. A Supreme Court clerkship is one of the most sought-after and prestigious law positions in the country. With only thirty-five to forty clerkships annually, these positions are extremely competitive and will all but guarantee a long and thriving legal career for those who get one (Lat 2018). Given its prestige and its relation to the Supreme Court, it is no surprise that former clerks enjoy success as Supreme Court litigators. Seven of the top ten most frequent advocates had a clerkship.
As they are so prestigious, clerks in the Supreme Court tend to come from elite law schools and move to elite positions afterward. Of those who argued with a clerkship, 88.7 percent came from a Tier 1 school. However, table 4.6.2 demonstrates that even when accounting for law school, a clerkship is associated with far more appearances.
|Law School Attended||Average # of appearances with clerkship||Average # of appearances without clerkship|
It appears that the two most significant predictors of arguing in front of the Court are working at the OSG and having done a Supreme Court clerkship. However, these are not necessarily independent events. Since the OSG is exclusively about Supreme Court litigation, it stands to reason that experience as a Supreme Court clerk would be strongly desired. The numbers bear this out to a certain extent. Attorneys with a Supreme Court clerkship make up 60 percent of the appearances and 51 percent of all individuals from the OSG. So while someone from the OSG is more likely to have a Supreme Court clerkship than an individual representing a different litigant, it is far from a necessity to have a Supreme Court clerkship to enter the OSG.
The first research question this investigation seeks to answer is, How homogenous is the Supreme Court Bar? Very. Of the six qualities investigated, a clear majority of the bar shared the same characteristic on all but the completion of a judicial clerkship. The Supreme Court Bar is dominated by White men who attended private undergraduate schools and top law schools and are employed by Vault 100 firms. Even though only 19.3 percent of attorneys within the bar have a Supreme Court clerkship, 43 percent of oral arguments were performed by a former clerk, so there is still a concentration of power.
The second research question is, Has the Supreme Court Bar changed since 1990? Although the Supreme Court Bar has become more diverse than it was in 1990, it is still extremely homogenous. It remains a White, male-dominated, and elite institution and is certainly not representative of the people. Not only are there barriers of entry to joining the Supreme Court Bar, but even within the Supreme Court Bar, historically dominant and elite groups have huge advantages in appearing in front of the Court.
The third research question is, how representative is the Supreme Court Bar? Compared to both the national bar and the population at large, the Supreme Court Bar is not very representative.
The path to becoming a Supreme Court litigation specialist begins early in life, going back at least as far back as the beginning of undergraduate studies. There is a small and narrow path that favors members of historically privileged communities, who flow through elite law schools and clerkships, both of which are less diverse than average (American Bar Association 2018; National Association of Law Placement 2010).
The pipeline to the Supreme Court Bar is riddled with exclusivity. Every step along the way, from attending an undergraduate institution to practicing as an attorney, acts as a barrier to entry that works against women and people of color. Each new step compounds the difficulty for historically marginalized communities to move on to the next step.
The OSG does offer hope that the tides will be changing soon. Given that the OSG often acts as a springboard for lucrative appellate practices, with the more diverse set of lawyers hired by Obama, it would be expected that some will go on and continue to practice after leaving the OSG. For example, five women who have recently left the OSG have gone into private appellate practice (Alder 2018). These women, along with the attorneys of color, will be able to use the advantages of being a former member of the OSG and continue arguing at high rates, which would be expected to further diversify the Supreme Court Bar.
The impacts of the homogeneity of the Supreme Court Bar go beyond just symbolic representation and the lack of role models. Supreme Court specialists are significantly more likely to win their cases than nonspecialists (Lazarus 2008). Since descriptive representation can translate into substantive representation, the demographics of the Supreme Court Bar could easily translate into the substance of the types of cases they argue.
For example, female judges are more likely to recognize types of gender bias than male judges (Martin et al. 2002). Using that same logic, perhaps male Supreme Court specialists will be less likely to believe the merits of a gender discrimination claim. Since men are the majority of Supreme Court specialists, that claim has a greater chance of being brought by a nonspecialist (and therefore having less of a chance of succeeding, regardless of merit) if it gets brought at all. Thus substantive areas of law can be greatly affected by the diversity reflected within the Supreme Court Bar.
Additionally, the direction of the Supreme Court’s docket can be influenced by a small number of people, many of whom have strong ideological leanings. For example, Paul Clement, who appeared the most of anyone in the study period, is very public about his conservative ideology and is an active member of the Federalist Society. There is a plethora of discourse, both public and academic, about how the Court has been steadily shifting to the right. These pieces usually focus on the ideology of the justices—especially after the relatively moderate Justice Kennedy was replaced with the very conservative Justice Kavanaugh. However, because of how familiar conservative advocates like Paul Clement and Theodore Olsen (thirty-eight appearances) are, they are able to get more of their cases docketed. The Supreme Court gets around eight thousand petitions each year and grants around eighty of them (Supreme Court 2019). So people like Clement and Olsen who get multiple cases docketed each year have the ability to actively shape the agenda of the Court. Further research should examine the ideologies of all the advocates before the Court to look for possible effects.
Further research could also look into the litigants and how they influence the demographics of the bar. This analysis focuses heavily on the “supply” side of the bar—that is, factors that influence an individual’s ability to gain entrance. But the supply side is not the whole picture; the demand side could also contain key insight into how people get into the Supreme Court Bar. Since everyone in the Supreme Court Bar is hired by a client, the criteria for entry are determined by a market. For example, research could look into whether certain types of litigants prefer certain types of attorneys and how that might influence who is desirable in the market. If clients’ demand about who they want to represent them in the Supreme Court skews toward people with the traditionally sought after elite credentials (top-tier law school, Supreme Court Clerkship, etc.), it would help clarify the path to the bar and strategies to diversify the bar moving forward.
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1. What would be some viable strategies for increasing the diversity of the Supreme Court Bar?
2. If you are a client seeking to appeal to the Supreme Court, what qualifications would you look for in a potential attorney?
- For the purposes of this study, identities are treated distinctly. While I recognize the validity of intersectionality and how individuals belonging to multiple marginalized groups (such as women of color) experience oppression that is greater than the sum of its parts, the data in this study do not allow for an intersectional analysis. Only 12 of the 876 lawyers in the Supreme Court Bar are women of color, which makes a rigorous statistical analysis of intersectional identities next to impossible within the confines of this study. ↵
- The article was written in 2014 and thus does not account for the placement of Justices Gorsuch and Kavanaugh—who graduated from Harvard Law School and Yale Law School, respectively—on the Court. The percentages have been adjusted for these two additions. ↵
- Justice Ginsburg attended Harvard Law School for two years before transferring to Columbia Law School for her final year. ↵
- There is also work done on the rest of the federal judiciary and state high courts. See Solberg and Diascro 2018, Federal Judicial Center 2018, and American Constitution Society 2017 ↵
- In Justice Thomas’s concurrence in Capitol Square and Advisory Board v. Pinette 15 US 753 (1995), he gives a great deal of historical background into the Ku Klux Klan’s tradition of burning flags, informed in part by his lived experience as a Black man from the South. ↵
- There has been a backlash to affirmative action programs and court rulings stopping some programs that may be contributing to the stagnation. ↵
- The Ivy League has five law schools: Yale, Harvard, Columbia, University of Pennsylvania, and Cornell. ↵
- The stereotypes affecting women’s careers are not limited to the legal field. Women also see similar discrimination in science, technology, engineering, and math (STEM) jobs (Sekaquaptewa 2011); corporate positions; and politics. Only 5 percent of Fortune 500 companies have a female CEO (Zarya 2018). Only 20 percent of the US Congress are women (Manning 2018), and there has never been a female president or vice president of the United States. On the state level, 12 percent of governors (Center on the American Governor 2018) and 25.4 percent of state legislators are women (Center for American Women and Politics 2018). ↵
- Since people of color were systematically excluded from a large number of law schools, there was no need for bar associations to explicitly prohibit them. ↵
- The difficulties of finding employment for people of color due to implicit bias are hardly contained to the legal field. People of color often experience similar difficulties in the business world, where 27 percent of senior executives at Fortune 500 companies are people of color (Jones 2017). While that appears proportional at first glance, when broken down further into racial categories, a wide disparity is observed. Twenty-one percent of senior executives are Asian, 3 percent are Latino, and 2 percent are Black (Jones 2017). A similar pattern occurs in high-profile public-sector jobs. Congress currently consists of 21.6 percent people of color; 9.4 percent are Black, 8.5 percent are Latino, 3.3 percent are Asian / Pacific Islander, and 0.36 percent are American Indian (Manning 2018). There has only been one president of color and no vice presidents of color. In 2015, people of color only made up 18.1 percent of state legislators (National Conference of State Legislators 2015). Six percent of governors are minorities, with two Latino and one Asian governor (Center on the American Governor). ↵
- Outside of opinion announcement, oral argument is really the only visible aspect of the Court’s functioning. Oral argument also serves as the only direct interaction between the justices and the attorneys. ↵
- Barbara Underwood briefly served as the acting solicitor general at the beginning of the George W. Bush administration (Groll and Yiang 2009). ↵
- At the time of this data collection, these were the only years of the Roberts Court. ↵
- It is worth noting that all five of these Asian lawyers (Neal Katyal, Anthony Yang, Sri Srinivasan, Kannon Shanmugam, and Pratik Shah) are all men. ↵
- Each active justice (nine) gets four clerks, so there are thirty-six clerks. Each retired justice gets up to one clerk per term. The number of retired justices changes periodically, but there are currently four. Thus in total, there are about forty Supreme Court clerkships annually. ↵
- Examples of public discourse include Bazelon (2018) and Sherman (2018). An academic example of such discourse is Perkins et al. (2007). ↵