The Special Edition of Early 202: Historically Diverse Supreme Court Hears Disproportionately White Lawyers

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Hello, first readers. Happy Sunday and welcome to a special edition of The Early 202. Well, maybe we should have called today’s newsletter “The Late 202”. Tips: [email protected]

The Supreme Court is more diverse than ever. The lawyers who plead before her are still mostly white men.

The Supreme Court’s approach to race issues will make headlines again on Monday when the justices hear two cases involving affirmative action, months later President Biden delivered on his promise to diversify the court by appointing the first black female judge.

Judge Ketanji Brown JacksonThe addition of the court means that it is now more diverse than ever in terms of race and gender.

But the elite group of lawyers who plead before judges remains overwhelmingly white and male.

Black and Hispanic lawyers remain significantly underrepresented among Supreme Court litigants, according to an analysis by The Early 202 of lawyers who have delivered oral arguments in recent years. Women are also significantly underrepresented. And there are especially few women of color.

As the court grapples with affirmative action and other cases involving race, the scarcity of black and Hispanic lawyers appearing in court highlights how people of color are often excluded from the rooms in which decisions that concern them are made.

Since the start of the Supreme Court’s mandate in 2017, 374 lawyers have appeared before the justices. Some have argued more than a dozen times.

To determine the demographic characteristics of this groupthe Early 202 asked each of them to share their race or ethnicity, gender and other information about their origins. Over 290 responded. The Post confirmed the race of seven other lawyers based on articles, speeches and interviews in which they described how they identified themselves. The Post also confirmed the attorneys’ gender based on their biographies on law firm and other professional websites and how the judges mentioned them during closing arguments.

In total, The Post has determined the gender of the 374 lawyers who have appeared in the High Court since the start of the 2017 term and the race of more than 80% of them.

  • Almost 81 percent of lawyers whose race we have confirmed are white, and 62 percent are white men.
  • Almost 9 percent are Asian Americans.
  • Whereas 19 percent of Americans and nearly 6 percent of lawyers in the United States are Hispanic, according to the American Bar Associationonly 3.6% of the Supreme Court attorneys in the Post’s analysis were Hispanic.
  • And while almost 14 percent Americans and 4.5% of lawyers nationwide are black, only 2.3% of lawyers in The Post’s analysis were black.
  • Whereas 38 percent of US attorneys are women, according to the ABA, women make up just 20% of those who have argued cases before the Supreme Court, according to Post analysis.
  • Women of color were particularly underrepresented: Only six Asian American women, two biracial women, one Hispanic woman and one black woman have appeared in court since the start of the 2017 term.

None of the judges responded to a request for comment for this story.

Several lawyers and civil rights advocates we spoke to identified two reasons why a more diverse group of lawyers would better serve the court and the country:

Representation in a multiracial democracy: “It’s not a good message to send out to society as a whole” that most lawyers appearing in court are white males, said Samuel Spitalthe Legal Defense Funddirector of litigation and former clerk of the Supreme Court.

Greater diversity of perspectives and experiences: Many referenced lawyers Thurgood Marshallthe pleading of Brown v. Board of Educationmore than a decade before becoming the first black American in the field in 1967.

  • “There was a moment in his rebuttal, his argument, when he started to describe what segregation looks like,” said Amir Alithe executive director of the MacArthur Justice Center, who is of North African and Middle Eastern descent and has appeared in court on several occasions. “And he starts talking about kids walking to school together, white and black, getting along and laughing together, then suddenly having to separate when they reach the corner and one has to go to the white school and the other has to go to the Black School. And in describing that, he stops and he says, “I saw them do it.”
  • “The power of that, for him to be able to say, ‘I saw it’ – I think part of what he’s implicitly saying is, ‘You may not have seen this, but I did'” Ali added.

To learn more on the role that articling, the Department of Justice Solicitor General’s office, and large law firms play in a system that has produced so few black and Hispanic lawyers and a disproportionate number of women lawyers, read our full story.

Thanks for reading. You can also follow us on Twitter: @tobiaraji, @theodoricmeyer and @LACaldwellDC.

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