In 1869, Iowa granted Arabella A. Mansfield a law license; it was the first law license received by a woman in the U.S. In 1870, Ada Kepley graduated from the Union College of Law (now Northwestern University) and earned the status as the first female to complete law school.1 Progress by women committed to a legal career seemed to have been made. However, at around the same time, Myra Bradwell was denied admission to the Illinois State Bar simply because Illinois did not believe that women were suited for a legal career; in 1873, the U.S. Supreme Court, via Justice Bradley's concurrence, agreed with the Illinois Bar, concluding that "The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother."2
A century later, women still comprised only 4.7 percent of all practicing attorneys in the U.S.3 Betty Friedan's proclamation that "The feminine mystique has succeeded in burying millions of American women alive,"4 had reinvigorated the women's movement and encouraged women to attempt entry into non-traditional careers such as the practice of law.5 Yet, despite the civil rights and women's movements of the 1960s, as well as passage of Title VII of the Civil Rights Act of 1964, women were still outsiders looking in the halls of justice.
As Latourette describes in her 2005 article, the first women lawyers confronted a culture that was hostile to the notion that women could or should participate in the domain of law as well as formal restrictions that made access to the legal profession exceedingly difficult.6 Unsurprisingly, therefore, in 1870 there were only five women lawyers. This number had increased to 75 in 1880. In contrast, the other 64,000 practicing attorneys in 1880 were men.7 In an era where cultural norms and economic reality prevented otherwise intelligent women from departing from the domestic sphere, those who chose to make that break suffered for it. Many women lawyers, like Myra Bradwell, were denied admission to state bars, most women were self-employed or employed in low level positions, and all women lawyers were barred from the male-dominated professional societies of the time.8
By 1960, the number of American women lawyers had grown to 7,543, or 3.5 percent of the total number of lawyers. In 1980, women accounted for 12 percent of all lawyers9 and, as of 2006, 30.2 percent of American lawyers were women.10 Despite the increase in the number of women attorneys, discrimination and gender bias in the legal field persists. For example, as of 2006, women occupied less than a quarter of the U.S. district court and courts of appeals seats, one woman sat on the Supreme Court, and only 20 percent of law school deans were women.11
At the same time, a large number of women are entering and graduating from law school. By 2003, women made up nearly half of the law school student body nationwide.12 For the 2006 entering class, that number had fallen slightly to 46.9 percent.13 The gap between the number of women entering/completing law school and holding prestigious legal positions indicates that contemporary women lawyers still face serious barriers to advancement and access to power.
Women lawyers at the Court
One of the most serious problems that women lawyers face is in gaining access to the U.S. Supreme Court. While society has come a long way since Bradwell v. Illinois, there remains a dearth of women lawyers participating in Supreme Court litigation. 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,14 the makeup of the Supreme Court Bar is of paramount importance. Moreover, to the extent that attorney gender affects judicial decision making, including Supreme Court decision making,15 the potential variation in the participation rates of male and female counsel is of substantive importance.
In addition, the gender diversity of the Bar is itself important given the Court's own pronouncement that diversity is a legally recognized compelling interest.16 Finally, to the extent that the High Court is the pinnacle of the legal profession, litigation experience before the Court is a powerful status symbol. Like mentoring, or prior U.S. Supreme Court clerkships, participation in Supreme Court litigation opens professional doors. If the door is not completely open to women, then it could be a barrier to success in the profession.
This study explores the attorney gender gap in the Supreme Court Bar in greater detail by employing a unique dataset of attorney characteristics collected on all attorneys participating before the Court over the 1993-2001 terms. Before we present our analysis, we turn our attention to previous research suggesting possible mechanisms of women's exclusion from the Supreme Court arena.
Selection of law clerks
One of the most prestigious jobs open to a new law school graduate is a U.S. Supreme Court clerkship. Not only are these clerkships highly coveted for their prestige, they are also desirable since it is well-known that former clerks are substantially more likely to subsequendy participate in Supreme Court Iitigation17and are presumed by the justices to be highly competent in that role.18
Traditionally, this penultimate opportunity has been essentially foreclosed for women. As Susan Estrich laments, "The clerkship group becomes an elite fraternity of its own, providing the kind of informal network from which women have long complained that we tend to be excluded."19 Indeed, it was not until 1944 that William O. Douglas hired the first female clerk, Lucille Lomen. Hugo Black hired the second female law clerk 22 years later in 1966, with Abe Portas (in 1968) and Thurgood Marshall (in 1971) following shordy thereafter.20 However, the rise in the number of women clerks has not matched the increase in the number of women law school graduates. Indeed, in the last three terms, the proportion of women clerks has consistently declined, from 15 of 35 for the 2004-2005 term, to 13 of 37 in 2005-200621 and, most recently, only 7 of 37 for 2006-2007.22
Solicitor General's Office
Another point of access to the Supreme Court Bar from which women appear to be disproportionately excluded is the Office of the Solicitor General (OSG). Working in the OSG offers young lawyers opportunities to engage in High Court litigation. As the third ranking office in the Justice Department, the OSG decides whether to seek review of lower court decisions involving the U.S. government in the Supreme Court. The solicitor generals themselves have always been male.23 The OSG also actively recruits and employs a significant number of former Supreme Court law clerks.24
Thus, the discrepancy between male and female hires in the clerk process is compounded when one considers selection for employment in the OSG. Since such a large portion of the cases before the Supreme Court involve the U.S. government, women who have never had a chance to work as either a Supreme Court law clerk or as an OSG attorney face yet another barrier.
Employment in elite firms
Just as the OSG engages in High Court litigation on a regular basis, so do a select subset of law firms. According to McGuire, there is an elite group of lawyers "who serve as gatekeepers to the Court."25 These lawyers, housed in prestigious firms in New York, Chicago, and predominantly in Washington, D.C., are the crème de la crème of all attorneys, plucked from the nation's top law schools (particularly Harvard26), courted as Supreme Court law clerks, and recruited from the OSG.27 They are typically white, in their mid-forties, appellate practice specialists, and mafe.28 The sustained presence of these elite attorneys in High Court litigation influences some of our country's most important policies.29
That women are sorely underrepresented in this elite group should be of no great surprise. The structure of the legal profession helps to explain the scarcity of women in the Supreme Court Bar. In many prestigious law firms (including those that specialize in Supreme Court litigation), the rules and norms of the legal culture exist to exclude women from the upward mobility track.30 In fact, in 2002, the odds of a woman making partner in a private firm were one third less than the odds of a similarlysituated male.31 Though women are entering both law schools and firms in large numbers, the attrition rate for women in law firms is high.32 Advancement to a partnership within larger firms typically occurs after an associate has spent 6 to 10 years at the firm; however, many women leave these practices by their fourth year.33 While part of the reason for women's disproportionate exodus may be women's preferences and life choices, personal choice is not the only factor accounting for the low representation of women on the partnership track. Disillusionment with and uncertainty about climbing the corporate law firm ladder, as well as the continuing presence of discreet discrimination, likely play a role.34
Despite previous work assessing women's relative position in the legal profession and studies that shed light on the composition of the Supreme Court Bar, we do not have a particularly detailed portrait of those women who have managed to join this distinguished group. However, much can be gained by an analysis of the participation of men and women attorneys before the Supreme Court and their background characteristics. Utilizing a unique dataset of the background characteristics of attorneys participating in Supreme Court litigation over nine terms, we seek to provide this crucial comparative analysis.
Specifically, we answer a number of important questions regarding the degree to which women attorneys participate in U.S. Supreme Court litigation: Are men more likely to participate? If there is an attorney gender gap, is it narrowing? Given the importance of "repeat player"55 (hereinafter RP or RPs) status, are women less likely to participate in multiple cases? Are women more likely to participate in certain types of cases? After answering these questions, we describe the characteristics of the typical Supreme Court attorney (e.g., legal education, clerkship background, employment setting), and the degree to which these characteristics vary by gender.
We examine all fully treated (orally argued, with a signed Opinion of the Court) cases from the 1993-2001 terms. The case data was derived from The Original United States Supreme Court Judicial Database.36 The names of the attorneys were identified from the briefs and published opinions. Gender was coded based on given names. For gender-neutral names, we utilized gender-specific tide or pronoun references by the Court or the attorney's employer. Clerkship data was provided by the Court's Public Information Office. Other attorney characteristics were collected from a combination of Martindale-Hubbell, Lexis-Nexis, and a manual search of law review mastheads.
As seen in Table 1, men outnumber women in the rates in which they participate as counsel in the nation's most important legal disputes. This gender disparity appears particularly stark when examining oral arguments." In the time period under study, the 1993-2001 terms, only 150 (13.91 percent) of the 1,078 orally arguing attorneys were women. Although not as severe, the table also reveals a gender gap in the participation rates of counsel "on brief for a party. Specifically, approximately 74 percent of attorneys participating on brief were men.
As discussed below, there may be several reasons for this disparity. The last column of Table 1, which indicates the national bar percentage by gender, suggests one such possibility. Although a portrait of only one year, the statistic reveals a dramatic gap in the rates of men and women in the national bar. In 2000, males constituted 73 percent of the attorneys in the bar.38
It is important to note, further, that not only do men tend to dominate the overall participation rates before the Court, but male attorneys are also more likely to be RPs in oral arguments, thus accruing the benefits of Supreme Court litigation experience and repeated contact with the justices. Our analysis indicates that although the majority of male and female attorneys argued only once before the Court during the period studied, RPs tended to be men.
Eighty male attorneys, for example, gave two oral arguments, while only nine female attorneys gave two oral 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 totals well above this number. For instance, we identified five male attorneys that each argued more than 16 cases.
An analysis of attorney participation rates by term, moreover, does not paint a more optimistic picture. Figure 1 indicates the percentage of orally arguing and "on brief attorneys by gender for each term in the present analysis. As seen, male attorneys far outnumber female attorneys in the rate of participation in Supreme Court litigation in each of the terms. Further, the trend lines across both categories of participation are relatively flat, indicating that the gender gap in participation rates has not substantially narrowed under the period investigated. Interestingly, during this same period, as well as the prior 20 years, the pool of potential women Supreme Court litigators (i.e., the number of women in the profession) consistently increased (though the rate of increase has diminished).39
Our analysis of the proportion of women on litigation teams also reveals the presence of an attorney gender gap. As seen in Figure 2, not only is the participation of female counsel a rare event in and of itself, but most teams involve very few women. Teams with balanced gender composition among counsel are rare. Litigation teams dominated by female counsel are even more exceptional.
An obvious question might be whether women are more likely to participate in certain types of cases and whether women, when they do participate, are more likely to confront other female counsel. Table 2 addresses these questions with a percentage breakdown of attorney participation in oral arguments across women's issues,40 non-women's issues, and all issues combined.
As seen in the table, men dominate participation in oral arguments across all three categories of cases, and female counsel rarely square off against one another. Interestingly, the percentage of cases in which a woman orally argues on at least one side is higher in cases raising a women's issue. Almost 39 percent of the 18 cases involving a "women's issue" as operationalized here involved female counsel providing oral arguments on at least one side, while approximately 23 percent of non-women's issue cases involved female participation in oral arguments (on at least one side).
However, males dominate this form of participation before the Court. In fact, in all 18 women's issue cases, a male orally argued on at least one side and, in 11 of these cases, men argued on behalf of the petitioner and respondent. Thus, there are no instances in which a female attorney confronted another female attorney in oral arguments in a women's issue case. Similar patterns are revealed across non-women's issues cases. In short, it is rare for female attorneys to participate in oral arguments on at least one side. It is rarer to witness such participation on both sides.
When we examine participation to include participation as counsel on brief for a party as well, the story is much the same. We calculated the average number of women participating on the side of the petitioner, the respondent, and both sides across cases raising a women's issue, a nonwomen's issue, and all issues combined. The average number of women on the petitioner and respondent's legal teams is slightly higher in the context of women's issue disputes than in the other categories analyzed.
Specifically, in the context of cases raising a women's issue, the average number of women on the petitioner's side is 1.78, the average number of women on the respondent's side is 1.83, and the average number of women participating on both sides is 3.61. In the context of non-women's issue cases, these figures are 1.02, 1.01, and 2.03, respectively. Even though there is a slight increase in women's participation rates in women's issue cases, the participation rates of female counsel are quite small across the three categories. On either side of the litigation, the average number of women participating on brief never exceeds 1.83. Thus, while women lawyers take part in more women's issue cases, a gender gap still exists after controlling for the nature of the case.
With female participation as counsel in Supreme Court litigation a relatively rare event, one might be curious as to the background of those women attorneys who do participate. Do such women have to overcompensate in terms of their credentials? Does gender bias with respect to employment or other opportunities potentially shape an attorney's chances to participate before the Court?
Table 3 indicates the percentages of male and female counsel who attended elite law schools (i.e., top 15 programs as identified by Slotnick41) based on the total number of attorneys of each gender participating before the Court and the form of participation (i.e., oral argument or "on brief"). One thing that is obvious from the table is that many of the attorneys litigating before the Court, either via oral argument or on brief, attended elite educational institutions. The question is, however, whether women were more likely to attend an elite law school? Interestingly, the table does indicate that of 127 females participating in oral arguments before the Court, 62 (almost 49 percent) attended a top15 law school. Of the men presenting oral arguments, 45 percent had attended a top-15 law program. In other words, at best, the difference in law school backgrounds is marginal.
Table 3 also provides similar percentages of male and female counsel who wrote for a law review, graduated with honors, or were selected to the prestigious "Order of the Coif." Unlike the comparison of law school quality, there appears to be a more sizeable gap between male and female counsel with respect to these measures. However, the gap appears more notable with respect to orally arguing attorneys. For instance, of those males who participated in oral arguments before the Court, about 39 percent wrote for a law review, and about 47 percent graduated with honors or were selected to the Order of the Coif. On the other hand, of those women who participated in oral arguments, approximately 33 percent wrote for a law review, and almost 40 percent of such women were Coif members or honors graduates.
As seen in the table, the gap in these credentials is less evident among male and female attorneys participating on brief. It would seem that women are not judged by higher standards when it comes to assigning them to participate in Supreme Court litigation. Moreover, with respect to oral arguments, women participants are generally slightly more likely to attend prestigious schools, but less likely to have received performance-based law school accolades. In other words, there does not seem to be substantial evidence that the bar is placed higher for women lawyers.
Another oft-noted observation is the presence of occupational segregation within the legal profession.42 Indeed, the gender gap between male and female Supreme Court litigators might be a function of attorney employment backgrounds. Although our data do not permit comparison of the employment backgrounds of all male and female attorneys in the U.S., we can inquire as to the employment backgrounds of those who did participate before the Court. Thus, in Table 4 we present the employment background, by gender, of the orally arguing attorneys and those who participated on brief for a party for the time period under study.
The vast majority of male attorneys who participated in oral argument were private practice attorneys. Meanwhile, the second largest employment category for male orally arguing attorneys was state and local government. The other specific categories analyzed here (i.e., U.S. government, group/association, corporate counsel, legal aid/public defender, and law schools) each contained less than 5 percent of the male attorneys providing oral arguments.
As a proportion of all females participating in oral arguments, only 33 percent of such attorneys were private practice attorneys-half the proportion of their male counterparts. Of those who were not in private practice, a relatively large proportion participated as advocates of state and local governments and interest groups, or they were employed as legal aid attorneys or public defenders.
Similar employment patterns are exhibited among attorneys participating on brief before the Court. Again, most men were private practice attorneys. Specifically, of the 2,840 male participants with an identifiable employment background, 1,737, or about 61 percent, were private practice lawyers. For male attorneys, this employment category is followed by state and local government, U.S. government, corporate counsel, and group or association counsel.
Interestingly, the gender gap in the proportion of males and females employed in private practice is reduced somewhat in the context of brief participations. Even so, when compared to their male counterparts, this occupation does not include as high a proportion of female participants. Thus, a higher proportion of female attorneys participating on brief for a party before the Supreme Court in this time period were employed by state and local governments, the U.S. government, and groups and associations.
Within the category of private practice, there might also be important gender differences. Larger firms, for instance, might be able to better handle Supreme Court litigation. If male and female participants tend to be concentrated in different firm types, this might have implications for their ultimate success before the Court. It might also reflect, to some extent, occupational segregation within the Supreme Court Bar. Again, we present percentage breakdowns separately for each gender and for each form of participation examined in the study. The results are found in Table 5.
With respect to orally arguing attorneys, both genders are concentrated within small practice firms (i.e., 2-25 attorneys). Of the 608 men orally arguing before the Court for whom we could locate firm employment data, 240 (39.5 percent) were employed by small firms, while 22 of 50 (44 percent) female attorneys providing oral arguments during this time period were employed with small firms.
Female attorneys registered higher proportions of those from solo practice and a slightly higher percentage in medium firms (i.e., 2650 attorneys) than their male counterparts. However, of the male attorneys participating in oral arguments before the Court, almost 7 percent were representatives of large firms, and almost 32 percent of men participating in this manner were representatives of "mega" firms (i.e., those that made the National Law Journal's top 250 list for the nation's largest firms as of 2000-2001). Because of their higher concentrations in both small firms and solo practice, relatively smaller proportions of female orally arguing attorneys represent large and mega firms.
Interestingly, the differences in the proportions of men and women attorneys found in each firm type category are reduced when one examines only those attorneys participating on brief. In some cases, the nature of the differential is reverse from that found with respect to orally arguing attorneys. Specifically, of the 438 firm-based female attorneys participating in this manner, almost 42 percent were employed with mega firms. On the other hand, 649 of the 1,737 male attorneys, or about 37 percent, were employed with mega firms. The percentage of women (out of the total number of firm-employed women attorneys) in solo practice was also lower than the comparable statistic for male attorneys. Thus, there appears to be some differences here in the relative concentrations of the genders across orally arguing attorneys and those whose "highest" form of participation before the Court involved participating on brief.
Not only are there important differences in the educational and employment backgrounds of male and female counsel participating before the Supreme Court, these actors also differ in terms of experience. And, as will be seen, these issues can influence the extent to which they participate in High Court litigation.
To begin, women litigators participating in oral arguments are younger. Of the four quartiles of the age range found in our data, the highest concentration of women fell into the lowest quartile (age less than 42 years). Males, however, were more dispersed across higher age ranges. Indeed, our analysis of the data across the 1993-2001 terms indicates that the vast majority of attorneys delivering oral arguments before the Court are men over the age of 41 (see Table 6).
Although there might be other factors that account for this, as discussed above, the dropout rates of women in the legal profession as well as the partnership track problems women confront may very well play a role in explaining these stark age disparities. Further, this could very well be a function of previous gender discrimination in American law schools. A middle-aged attorney in the data we analyzed would have likely graduated from law school in the mid-1960s. Women, however, accounted for less than 5 percent of law school enrollments in 1965 and, in fact, did not account for more than 10 percent until 1972.43
In addition to this age differential, there is a significant difference in the bar experience percentages for male and female attorneys presenting oral arguments. Although there are a number of male attorneys who have less than 14 years of bar experience, a significant number of men who argued before the Supreme Court in the 1993-2001 terms had far more experience.
Indeed, 326 of 1,264 male attorneys had anywhere from 27 to 57 years of experience. 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. Indeed, of those females who did participate, the largest concentration is within the lowest quartile of bar experience-between 1-13 years. As with our findings pertaining to age, these patterns might, to some extent, reflect institutional barriers to the profession that were previously in place for women. However, it is also likely that these figures reflect other obstacles that thwart women's ability to engage in longer legal careers.
Older and more experienced attorneys might very well be tapped more frequently to present oral arguments before the Supreme Court, but previous scholarship has also illustrated that attorneys with select forms of job experience may play a more prominent role in Supreme Court litigation, including the everimportant role of RP.
As noted above, those serving as OSG assistants have figured prominently in Supreme Court litigation.44 Since the OSG represents the United States before the Court when the federal government is a party to a lawsuit, the Solicitor General or OSG assistants become RPs when the U.S. litigates. Thus, an examination of the extent to which men and women represent this prestigious office before the Supreme Court should certainly shed light on the nature of the attorney gender gap in this legal arena.
As part of the present analysis, we tracked the number of times the OSG participated in litigation during the time period of our study and assessed the number of repeat participations for each OSG attorney by gender. Unsurprisingly, there is only one woman who, as a representative of the Solicitor General's Office, orally argued a total of eight times. Select male OSG attorneys, on the other hand, registered totals far beyond this number. For instance, five male attorneys representing this office provided more than a total of 15 oral arguments, one of which provided 25 oral arguments. Thus, the fact that women are underrepresented in this office to begin with coupled with its RP status before the High Court likely contributes to the underrepresentation of women attorneys in Supreme Court litigation.
In addition to the important role of OSG attorneys, prior scholarship also suggests that former Supreme Court law clerks are substantially more likely to participate in Supreme Court litigation.45 Indeed, in the time period we analyze, the average number of oral arguments given by all former clerks was 1.18. Of those former clerks who orally argued at least once, the average number of oral arguments was 2.94. When we consider participation in oral arguments or as counsel on brief, the average number of times a former clerk participates in Supreme Court litigation is 4.02. Indeed, 38 percent of the Supreme Court cases we analyzed were argued by a former clerk on at least one side, and over 60 percent involved participation of at least one former clerk on brief. Without a doubt, clerks have a notable presence in Supreme Court litigation.
Moreover, the legal entities that handle a substantial portion of the cases before the Court (e.g., the OSG; large firms and boutiques with Supreme Court litigation divisions) actively recruit and employ a significant number of clerks.46 For example, 56.6 percent of the oral advocates in the 1993-2001 period with OSG experience had prior Supreme Court clerkship experience.47 Thus, we must also examine patterns with respect to clerk selection and the participation rates of former clerks to see the extent to which gender inequality in clerk selection affects the gender gap evident in the Supreme Court Bar.
Figure 3 presents a comparison of the percent of women law clerks for the Court from 1966-200248 and the percent of women in the pool of potential clerks (people that graduated from a U.S. law school a full year prior to the beginning of the corresponding Court term).49 The percentage of recent law school graduates never decreased during that time period and generally rose steadily from less than 5 percent in 1966 to 47 percent in 2002. Similarly, the percentage of female Supreme Court law clerks generally increased over time, though with some fluctuations from year to year.
Comparing the two curves, it looks like a gap grew over time, though it may have narrowed in recent years. From the early 1970s through the end of the decade, the percentages were relatively similar, both curves roughly increasing at similar rates. However, by the 1980s, the slope of the law clerk curve remained steady or dropped, while the rate of change in the percentage of women in the estimated pool of potential clerks increased. While the latter slope decreased in the 1990s, the gender gap remained in place.
How does this gap play out in Supreme Court litigation? As noted above, previous clerkship experience with a Supreme Court justice may affect one's chances of participating in Supreme Court litigation. Table 7 indicates the percentage breakdown of those attorneys participating in the time period of our study with and without previous Supreme Court clerkship experience. Almost 9 percent of all orally arguing attorneys were males who had once served as a Supreme Court clerk. However, less than 2 percent of all orally arguing attorneys were females with such experience. The gender gap in this form of experience did not seem to be as prevalent across male and female attorneys participating on brief. However, even here, a higher percentage of "on brief attorneys with this experience were men than women.
To gain an even better understanding of the gender gap in the participation rates before the Supreme Court, we present key characteristics of 35 attorneys participating in five or more arguments during the 1993-2001 terms in Table 8. The list is dominated by male counsel and, thus, it is apparent, yet again, that male attorneys are more frequently RPs before the Court.
Those attorneys at the top of the list with the highest number of total oral arguments during the designated time period are exclusively men. There is only one woman who provided the Court with at least eight oral arguments. In fact, there are only four women on this entire list. Further, those frequently litigating in the Supreme Court Bar often represent the OSG, have had previous OSG experience, or represent large firms well known for their presence in Supreme Court litigation. Almost all of the attorneys graduated from elite law schools, and all but eight served on law review. Finally, the table highlights the important role of a previous clerkship with a Supreme Court justice. Of the 35 individuals making this prestigious list, 19 had previously served as a Supreme Court clerk.
When President George W. Bush ultimately nominated a male to fill the seat of Supreme Court Justice Sandra Day O'Connor, many expressed concern over the lack of female representation on the U.S. Supreme Court. Indeed, in O'Connor's absence, Ruth Bader Ginsburg remains the sole female justice on a traditionally male Court. While the implications of this underrepresentation may be significant, it is not the only gender gap present at the Supreme Court level. The attorneys who are debating the nation's most important legal questions before the justices have also been historically male. And, while females may be entering the legal profession in greater numbers, there appear to be obstacles in providing women full access to the range of legal careers, including elite careers in the Supreme Court Bar.
Our analysis of attorneys participating before the Court during the 1993-2001 terms confirms what has likely been suspected by many. With respect to Supreme Court litigators, men participate more frequently than women both in terms of oral argument and as counsel on brief for a party. The discrepancy in participation levels was most notable in the context of oral argument. The vast majority of the Supreme Court cases analyzed in our study were orally argued by men. Further, to the extent that attorneys are given the opportunity to provide repeat performances before the Court, such opportunities tend to benefit male counsel. Indeed, women are dramatically less likely to participate in more than one oral argument than male attorneys.
Participation on law review and membership in prestigious law school honor societies are attributes more commonly associated with those male attorneys participating before the Supreme Court. Additionally, while most of the men arguing were employed post-law school with private law firms, women participants, as a group, were not concentrated in this particular sector as much.
Rather, those who orally argued a case were nearly as likely to be representatives of state and local governments, and relatively high proportions of women served as counsel for groups and associations and as legal aid representatives. With respect to women participating "on brief," there was also not as notable of a concentration for women as men employed in private practice. Although 45 percent of women participating on brief were employed by private firms, a number of others represented the federal and state governments as well as interest groups.
Anodier distinction between the sexes appears with regard to age; the women participating before the Supreme Court tend to be younger. While at first blush this may appear to be a positive indication of women's early entry into the field, a more plausible explanation could be that women have a much higher attrition rate than men from the legal profession. This might also be a function of historical practices that excluded women from law school admissions.
Finally, our analysis indicates the importance of a Supreme Court clerkship and experience in the Solicitor General's Office in obtaining access to the Court. Since more men were employed as former clerks and attorneys in the OSG during the time period we studied, it is of no surprise that the advantages of such professional experience did not accrue to the women in our sample.
While women attorneys have made great strides over the last 50 years, there are still many barriers to gender equality in the profession. This is apparent in our examination of the Supreme Court Bar. Women are significantly less likely to participate in Supreme Court litigation as justices, clerks, and litigators. The inequality is partially a function of the dearth of women law school graduates historically, but as the number of graduates approaches 50 percent, the gender gap still exists, and has either remained static over the last 15 years (in terms of women litigators), or has increased (in terms of women justices and clerks).
Women lawyers still face serious barriers to advancement and access to power, as illustrated by the dearth of women lawyers participating in Supreme Court litigation
Myra Bradwell was denied admission to the Illinois State Bar simply because Illinois did not believe that women were suited for a legal career; in 1873, the U.S. Supreme Court agreed with the Illinois Bar.
President Clinton's Solicitor General, Seth Waxman, argues before the Supreme Court. Another point of access to the Supreme Court Bar from which women appear to be disproportionately excluded is the Office of the Solicitor General.
Susan K. Ullman argues Board of Regents v Southworth in 1999. But she was an exception-between 1993 and 2001 only 150 of the 1,078 orally arguing attorneys were women.
In addition to an age differential, there is a significant difference in the bar experience percentages for male and female attorneys presenting oral arguments.
While females may be entering the legal profession in greater numbers, there appear to be obstacles in providing women full access to the range of legal careers, including elite careers in the Supreme Court Bar.
1. Virginia G. Drachman, WOMEN LAWYERS AND THE ORIGINS OF PROFESSIONAL IDENTITY IN AMERICA (Ann Arbor, Michigan: University of Michigan Press, 1993).
2. Bradwell v. Illinois, 83 U.S. 130 at 141 (1873).
3. Betsy C. Smith, BREAKTHROUGH: WOMEN IN LAW (New York: Walker & Co., 1984).
4. Betty Friedan, THE FEMININE MYSTIQUE 325 (New York: Dell Publishing Co., 1963).
5. Audrey W. Latourette, Sex Discrimination in the Legal Profession: Historical and Contemporary Perspectives, 39 VAL. U.L. REV. 859-909 (2005).
8. Drachman, supra n. 1.
9. Smith, supra n. 3.
10. American Bar Association, COMMISSION ON WOMEN IN THE PROFESSION, 2006.
12. LSAC, DATABOOK ON WOMEN IN LAW SCHOOL AN6 IN THE LEGAL PROFESSION. (Newtown, PA: Law School Admission Council, 2003).
13. American Bar Association, supra n. 10.
14. Timothy R. Johnson, Paul J. Wahlbeck , and James F. Spriggs, The Influence of Oral Arguments on the U.S. Supreme Court, 100 AM. POL. Sei. REV. 99-113(2006).
15. See John J. Szmer, Tammy A. Sarver, and Erin B. Kaheny, "Have We Come a Long Way Baby? Female Attorneys Before the United States Supreme Court." Paper presented at the 2007 Conference of the Midwest Political Science Association, Chicago, IL.
16. Gratter v. Bollinger 539 U.S. 306 (2003).
17. Kevin T. McGuire, Lawyers and the U.S. Supreme Court: The Washington Community and Legal Elites, 37 AM. J. POL. Sei. 365-390 (1993); Karen O'Connor and John R. Hermann, The clerk connection: Appearances before the Supreme Court by former clerks, 78 JUDICATURE 247-249 (1995).
18. Johnson, et al., supra n. 14.
19. Susan Estrich, " Lack of Supreme Court Women Law Clerks Shows Unconscious Discrimination," Foxnews.com, August 30, 2006, http:// www.foxnews.com/stoty/0,2933,211379,00.html.
20. Cynthia F. Epstein, WOMEN IN LAW, (Urbana and Chicago: University of Illinois Press, 1993).
21. Tony Mauro, High Court Clerks, Still White, Still Male, Legal Times, May 25, 2006.
22. Linda Greenhouse, Supreme Court Memo: Women Suddenly Scarce Among justices' Clerks. N. Y. Times, August 30, 2006.
23. An official list of the U.S. Solicitors General can be found at the U.S. Department of Justice Web site http://www.usdoj.gov/osg/aboutosg/ sglist.html. One woman did serve in an interim capacity for a short period of time. Barbara Underwood, Deputy Solicitor General under President Bill Clinton, served as Acting Solicitor General during the early part of President George W. Bush's administration, from January 20, 2001 to June 11, 2001. 531 U.S. iv; 533 U.S. iv.
24. Tony Mauro, High Court Clerks Show Market Clout as Firms Boost Bonuses, Legal Times, June 21, 2004.
25. Kevin T. McGuire, THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY 5. (Charlottesville and London: University of Virginia Press, 1993).
26. It is interesting to note that Harvard Law School did not open its doors to women until 1950. Mary J. Mullarkey, Two Harvard Women: 1965 to Today, 27 HARV. WOMEN'S LJ. 367-79 (2004).
27. McGuire, supra n. 25
30. Mona Harrington, WOMEN LAWYERS: REWRITING THE RULES. (New York: Penguin Group, 1993).
31. Equal Employment Opportunity Commission, Diversity in Law Firms, available at: http://www.eeoc.gov/stats/reports/diversitylaw/ index.html. (2003)
32. Latourette, supra n. 5
33. Cynthia F. Epstein, Robert Saute, Bonnie Oglensky, and Martha Gever, Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession, 64 FORDHAM L. REV. 306-449 (1995). see also, Mary C. Noonan and Mary E. Corcoran, Within the Professions: The Mommy Track and Partnership: Temporary Delay or Dead End?, 596 ANNALS 130 (2004). Survey data from 1972 to 1985 University of Michigan Law School grads revealed that while 82 percent of women and 87 percent of men surveyed chose private practice after law school, 67 percent of these women attorneys stayed with the firm after 4 years, whereas 79 percent of men stayed. Only 27 percent of the women surveyed made partner, while 52 percent of the men surveyed made partner. Finally, also see Virginia Valian, The Cognitive Bases of Gender Bias, 65 BROOKLYN L. REV. 1037-1061 (1999).
34. Latourette, supra n. 5
35. Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Social Change. 9 LAW & SOC'Y REV. 95-160 (1974).
36. Harold Spaeth, The Original United States Supreme Court Judicial Database. The database and documentation may be downloaded from the Web page of The S. Sidney Ulmer Project. Lexington, KY: University of Kentucky Department of Political Science,
37. These figures and those below consider the participation rates of counsel for parties on the merits of a case. Attorneys participating on behalf of an amicus are not examined in the present analysis.
38. Clara N. Carson, THE LAWYER STATISTICAL REPORT: THE U.S. LEGAL PROFESSION IN 2000. (Chicago, IL: American Bar Foundation, 2004).
40. Women's issues were operationalized to include claims involving sex discrimination in and out of the employment context, abortion and contraceptive rights, and issues involving marriage, family, and property. The Supreme Court did not decide an affirmative acu'on case involving gender during the time period of our analysis and, thus, gender-specific affirmative action decisions could not be included in this context.
41. Elliot E. Slotnick, Federal Trial and Appellate Judges: How Do They Differ? 36 W. POL. Q. 570-578 (1983).
42. Marjorie E. Kernhauser, Rooms of Their Own: An Empirical Study of Occupational Segregation by Gender among Law Professors, 73 U. MISSOURI-KANSAS CITY L. REV. 293-348 (2004); Valian, supra n. 33.
43. A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES - FALL 1980 (Chicago: American Bar Association, Section on Legal Education and Admission to the Bar), reprinted in Epstein, supra n. 20.
44. McGuire, supra n. 25
45. Id.; O'Connor and Hermann, supra n. 17.
46. Mauro, supra n. 24
47. Szmer, et al., supra n. 15.
48. Since there was only one female clerk prior to 1966, the graph begins at that point.
49. For this purpose, we used the population of people that graduated a full year prior to the term because most of the law clerks, at least those from 1975-2002, were selected after serving for one year on a lower appellate court Of course, this is not a perfect measure of the actual pool, since some law clerks are selected more than one year after graduation, while many of the law clerks that served between 1966-1975 started straight out of law school. However, the former subset of law clerks is fairly small, while the error resulting from the latter subset would actually minimize the disparity since it would result in a smaller estimate of the proportion of women in the "pool" of potential clerks (since the pool would actually come from the preceding year, and the number of law graduates increased monotonically over that time period).
TAMMY A. SARVER
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ERIN B. KAHENY
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