Where are all the women SCOTUS litigants?

by Angela N. Johnson

At the time Tammy Sarver, Erin Kaheny, and John Szmer wrote The Attorney Gender Gap in U.S. Supreme Court Litigation, women occupied less than a quarter of the US. district court and courts of appeals seats, just one woman sat on the Supreme Court, and only 20 percent of law school deans were women (Sarver, Kaheny and Szmer 2008). Thankfully, the current statistics reflect some improvement, with women comprising roughly 1/3 of all judgeships (including 3/9 on the U.S. Supreme Court).  However, the number of women attorneys arguing in the United States Supreme Court continues to lag and the “leaky pipeline” seems to be at fault. While one may hastily conclude that the problem plagues only those women who have an interest in litigating in the highest court of the land, a closer look reveals that this disparity impacts all women (even nonlawyers, too!)  According to the authors, “Because the Supreme Court makes policies that affect the entire nation, and the attorneys that participate in litigation before the Court, in turn, influence the justices’ decisions, the makeup of the Supreme Court Bar is of paramount importance” Id. at 239.  To investigate the gender gap, the authors collected data on all attorneys participating before the Court over the 1993-2001 terms. Moreover, the authors explore some of the possible explanations for their findings.

First focusing on the possibility that law clerkships are pathways to the almighty status of Supreme Court litigator, the authors show that the number of women law clerks has not matched the increase in the number of women law school graduates.  From a historical perspective, Lucile Lomen was the first female to clerk for a U.S. Supreme Court Justice and was hired by Justice William O. Douglas in 1944. Yet it would be another 22 years before a second female clerk was hired. It is troubling to note, that the proportion of women clerks declined in the time period the researchers studied the Supreme Court (from 15/35 for the 2004-2005 term to 13/37 in 2005-2006, and 7/37 for the 2006-2007 term).  To supplement this article’s data, I offer the clerk data of the 2010-2011 U.S. Supreme Court term; 12 of the 36 (or 33%) clerks are women.  As is traditional practice, each justice hired four clerks.  No one justice hired more than 2 women.  Justices Roberts, Sotomayor, Breyer, Kagan, and Ginsburg each hired two women; Alito and Thomas hired just one woman, and Scalia hired no women.  In this article, the authors report that 38% of the cases analyzed from 1993-2001were argued by a former clerk on at least one side; at least one former clerk worked on brief of over 60% of the cases – proving that clerkships are a substantial “pipeline” to litigating in the Court.

Another pipeline to litigating in the U.S. Supreme Court is that of employment in one of the prestigious firms regularly litigating cases in the U.S. Supreme Court. According to the authors, this elite group represent the crème de la crème of all attorneys, plucked for the nation’s top law schools. Interestingly, a pipeline exists for obtaining employment at one of these prestigious firms – that pipeline is roughly the same as those seeking to litigate in the U.S. Supreme Court (attendance at one of the nation’s top law schools, Supreme Court clerkship experience, law review, etc.) Women are underrepresented in these firms, who are often excluded from the upward mobility track, the attrition rate for women in law firms is high.  Advancement in these firms occurs “after an associate has spent 6 to 10 years at the firm; however, many women leave these practices by their fourth year” Id. at 241.

The results of the study reflect the gaping-wide gender gap.  Between 1993 and 2001, men orally argued 86.09% of cases while women orally argued just 13.91% of the cases.  Of the attorneys representing a party “on brief” (the U.S. Supreme Court took the case but did not request an oral argument), men comprised 74.48% and women comprised 25.52% Id. at 241.  Given these statistics, it is unsurprising that male attorneys were more likely to have been “repeat presenters” in front of the court; “Eighty males gave two oral arguments, while only nine female attorneys gave two arguments.  Nineteen male attorneys participated in three oral arguments, while only one woman registered three oral arguments.  A dozen male attorneys each registered a total of four participations in oral arguments, while only one female attorney argued a total of four cases.  In fact, the highest total of oral arguments by a woman during this period was eight, whereas male attorneys registered well above this number.  For instance, we identified five male attorneys that each argued more than 16 cases” Id. at 243. Moreover, women were only slightly more likely to argue women’s issue cases.

In terms of the employment, the male litigants were more often from private practice, whereas the women attorneys were more often from government or legal aid entities. However, the majority of attorneys (both male and female) who worked in private practice and participated in oral arguments were from small firms and those who participated “on brief” were from mega firms.

Though the number of women litigants is low, the authors did find some positive indicators about women’s participation; women were not judged by higher standards when it came to assigning them to participate in Supreme Court litigation.  This was judged by the fact that they were not more likely than the male litigants to attend a nationally “top” ranked law school and the women litigants received fewer performance-based law school accolades.

Given the fact women have only recently comprised a significant number of women law students, it is not surprising that the authors found that the average age of the women litigants was lower than the male litigants.  This can also be contributed to the dropout rates of women in the legal profession and the partnership track problems women face. More specifically, “Almost 23 percent of all attorneys arguing before the Court for whom we could identify this information were men with over 26 years of bar experience.  Less than 2 percent of all attorneys arguing before the Court, however, were females with this amount of experience” Id. at 247.

In sum, it is clear the gender gap continues to exist despite the increase of women earning law degrees.  The leaky pipeline on the way to Supreme Court litigation is largely to blame, leaving fewer women in the informal eligibility pool.  The fact that “repeat presenters” are more likely to present again in the future further perpetuates the gender disparity in U.S. Supreme Court litigators.  It is important to remember that this disparity does not only affect aspiring women litigants but quite possibly society at large.

Source Citation: Sarver, Tammy A., Erin B. Kaheny, and John J. Szmer. “The Attorney Gender Gap in U.S. Supreme Court Litigation.” Judicature 91, no. 5 (March-April 2008): 238-20.

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