It's not just Clarence Thomas and Antonin Scalia

For all the talk about representation on the high court, SCOTUS has a bigger problem with women no one mentions

By Marin Cogan
Published July 16, 2013 11:44AM (EDT)
Clarence Thomas, Antonin Scalia                          (AP/Randy Snyder/Reuters/Brendan McDermid)
Clarence Thomas, Antonin Scalia (AP/Randy Snyder/Reuters/Brendan McDermid)

It didn’t last long, but for a moment at the end of the Supreme Court’s history-making term last month, there was a brief examination of the role of gender in the court. Ruth Bader Ginsburg, “the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace,” the Washington Post reported, “when [Justice Samuel] Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.”

While a short-lived discussion played out as to what this gesture conveyed, the interpretations over Alito's intra-court antics obscured another point worthy of exploration: There are still few women in a position to attest to his demeanor on the bench. It’s not just his fellow justices, but the people who argue before it.

According to a recent analysis by the Associated Press, women made around 17 percent of the arguments before the high court this term. (The numbers were even starker for African-American representation: just one lawyer, Debo Adegbile, delivered an argument in defense of Section 5 of the Voting Rights Act this term, for only 11 minutes.) Lisa Blatt, the head of Arnold and Porter LLP’s Supreme Court practice, who in 2011 earned the distinction of giving more arguments before the court than any woman in history, is a comparatively rare figure in the exclusive circle of lawyers who argue before it.

“There’s a very small and elite Supreme Court bar that argues very regularly before the court. I can pick off on 10 fingers who they are, and almost all are men,” says Lisa T. McElroy, an associate professor at Drexel University who has written for the New York Times and SCOTUSblog.

Many of the lawyers in that group started as Supreme Court clerks or worked in the solicitor general’s office, or both — serving in positions that, until relatively recently, were given almost exclusively to men. Since the mid-1990s, the number of women serving the justices as clerks has grown to a third or more in some terms. Until 1972 there were no women working as attorneys in the solicitor general’s office; Elena Kagan, the first woman to head the office, served just over a year before being nominated to the court. But women who have served as deputies or assistants in that office have had some of the best opportunities to argue before the SCOTUS.

“The solicitor general's office is a launching point for many Supreme Court advocates, and there are now a number of great women in that office,” says Deanne Maynard, a former assistant to the solicitor general who has argued 13 cases before the court. Of the few women who frequently appear from a private practice, many of the most prominent, like Maureen Mahoney and Patricia Millett, once served in key roles there.

The women who have made it to the high court describe the current numbers breakdown as a vast improvement in the context of the profession’s mostly male history. The first woman to ever argue before the Supreme Court, Belva Ann Lockwood, was initially denied entrance on account of her sex; she went to Congress and successfully lobbied them to write legislation forcing the court to recognize her in 1879. The first African-American woman to argue a case before SCOTUS in 1962, Constance Baker Motley, drew crowds of courtroom gawkers at the beginning of her legal career.

Compared to Lockwood's and Motley's perseverance and what they later accomplished — Lockwood won a massive claim for Cherokee Indians forced to march the Trail of Tears; Motley played a major role in Brown v. Board of Education and won Meredith v. Fair, the case that desegregated the University of Mississippi — the more recent courtroom cultural debates about gender may seem relatively minor. According to Nina Pillard, who has written about her own experiences arguing before the SCOTUS, the number of oralists who were women grew by about 5 percent each term since the mid-1960s. Maureen Mahoney said she never felt unwelcome serving as a law clerk for then-Associate Justice William Rehnquist, though at the time very few women were being hired to do so, and Rehnquist’s liberal colleague William Brennan pointedly refused to hire women.

After one case in 1996, Beth Brinkmann, then an attorney in the solicitor general’s office, received a letter from Chief Justice William Rehnquist informing her that her brown skirt suit was inappropriate for court. Brinkmann’s boss defended her by noting not enough women had worked in the solicitor general’s office yet to have established standards for women’s dress.

There are a number of theories offered by women at the top of the profession about why their numbers aren’t bigger.

In 2010, just before Obama picked Kagan to succeed Justice John Paul Stevens, a panel of women lawyers who had practiced before the Supreme Court gathered with Justice Ginsburg at Georgetown University to discuss the cultural forces preventing more women from rising to prominence. They talked about their own difficulties engaging in the aggressive self-promotion needed to acquire high-profile corporate cases and deliver oral arguments. And while they were split on whether women lawyers needed to conform to male-dominated law culture or whether their presence could change it in ways that would create new opportunities for more women to participate in it, all agreed that role models and mentors were the change agents who could encourage more women to rise through the ranks --  one reason why having three women on the court is important, even if the justices are a lopsided reflection of the elite circles at the top of the profession.

Even after all of her cases in front of the court, Blatt says seeing women on the dais inspires and encourages her. She looks up to them the way an aspiring future member of the Supreme Court bar might look up to her (Blatt won all three of her cases before the court this term). There are many inferences to be made from Alito’s conduct and the culture of the court, but the most important may have been that, as he rolled his eyes, Ginsburg continued reading her dissent — a defense of the rights of plaintiffs to bring sexual harassment cases — an issue that defined her pre-SCOTUS legal career.

Marin Cogan

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