The Noteworthy Absence of Women Advocates at the United States Supreme Court

By Mika (Née Mullins, Jennifer Crystal | The American University Journal of Gender, Social Policy & the Law, January 1, 2017 | Go to article overview

The Noteworthy Absence of Women Advocates at the United States Supreme Court


Mika (Née Mullins, Jennifer Crystal, The American University Journal of Gender, Social Policy & the Law


I.INTRODUCTION

Arguing before the United States Supreme Court is considered one of the most prestigious accomplishments in a litigator's career. Those who make regular appearances before the Court are part of an even more elite group of advocates. In 2012, Kedar Bhatia collected information about advocates who had argued more than five times before the Court between 2000 and the end of the 2011-2012 term.1 Bhatia specifically noted that only 18% of this elite club were women.2 He also noted that 63% of the advocates had served as a law clerk for a Supreme Court Justice and 75% had current or previous experience in the Office of the Solicitor General (OSG).3

This article seeks to follow up on Bhatia's work to determine if women have become a larger subset of this elite club and the larger Supreme Court advocate community over the past five terms. To do so, it discusses data collected on all of the advocates who argued before the Supreme Court in the 2015-2016 term as well as data collected on the advocates who argued more than once in a given term since 2010. Section II describes the methodology used to collect this data. Section iii presents the resulting data. Section iV discusses the noticeable trends and briefly explores the possible causes in the continued deficit in women advocates. in sum, this article strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.

II.METHODOLOGY

For the purpose of this article, I collected and reviewed two specific data sets. First, I collected data on all cases argued during the 2015-2016 term. This data set was selected to capture a snapshot of the advocate demographic at the end of the 2015-2016 term. I recognize that a given term can be comprised of a myriad of different cases that may not provide a full picture of current trends. As a result, the second data set I collected is based on the data collected by SCOTUSblog on advocates who appeared more than once in a given term, which is included its Stat Pack4, for the last six complete terms.5 This data as a whole is not intended to specifically analyze who is classified as a "Supreme Court Expert."6 Instead, this data set is intended to capture both those advocates who could be termed experts as well as those who are in the process of developing the credentials for that distinction. This will provide a picture of how the Supreme Court Bar is evolving since Bhatia's initial work.

A. 2015-2016 Term Data

For the first data set, I reviewed the argument list for every month of the 2015-2016 term. This information is readily available on the Court's website.7 I cross referenced this list with the Granted & Noted List for the term.8 For each case, I pulled the names of the attorney scheduled to appear and noted the name of the party represented. I cross referenced this information with the advocates identified on the case page on SCOTUSblog to account for any instances where the person listed to argue did not actually argue.

Based on this list, I used internet searches to verify the gender of a given advocate.9 I also used internet searches to gather information about whether or not the advocate had clerked either for a Supreme Court Justice or any other state or federal judge.10 The vast majority of Supreme Court advocates have an internet presence, be it from one of the many legal blogs or websites or from a law firm biography. Even government attorneys have a presence through profiles on websites like LinkedIn or due to articles on law school websites. Because a clerkship with a Supreme Court Justice is generally considered a prestigious credential, it is reasonable to assume that if it was not included on one of these forums then the advocate did not have such a clerkship experience. once I collected this data, I used basic sorting and counting functions in Microsoft Excel to analyze the data.

I also used internet searches to identify the employer of each advocate. …

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