Justice Ketanji Brown Jackson’s addition to the court means it’s now more diverse along racial and gender lines than ever before.
But the elite group of lawyers who argue before the justices remains mostly White and male.
Black and Hispanic attorneys remain dramatically underrepresented among Supreme Court litigators, according to an analysis done by The Early 202 of lawyers who’ve delivered oral arguments in recent years. Women are also significantly underrepresented. And there are particularly few women of color.
As the court grapples with the affirmative action cases and others involving race, the paucity of Black and Hispanic lawyers arguing before the court spotlights how people of color are often excluded from the rooms in which decisions that affect them are made.
Since the start of the Supreme Court’s 2017 term, 374 lawyers have argued before the justices. Some have argued more than a dozen times.
To determine the demographics of this group, The Early 202 asked each of them to share their race or ethnicity, gender and other information about their backgrounds. More than 290 responded. The Post confirmed the race of seven more lawyers based on articles, speeches and interviews in which they described how they identify. The Post also confirmed lawyers’ gender based on their biographies on law firm and other professional websites and how the justices referred to them during oral arguments.
In total, The Post ascertained the gender of all 374 lawyers who have argued before the high court since the start of the 2017 term and the race of more than 80 percent of them.
- Nearly 81 percent of the lawyers whose race we confirmed are White, and 62 percent are White men.
- Nearly 9 percent are Asian American.
- While 19 percent of Americans and nearly 6 percent of lawyers in the United States are Hispanic, according to the American Bar Association, only 3.6 percent of the Supreme Court attorneys in The Post analysis were Hispanic.
- And while almost 14 percent of Americans and 4.5 percent of lawyers nationally are Black, only 2.3 percent of the lawyers in The Post analysis were Black.
- While 38 percent of American lawyers are women, according to the ABA, women make up only 20 percent of those who argued before the Supreme Court, according to The Post analysis.
- Women of color were particularly underrepresented: Just six Asian American women, two biracial women, one Hispanic woman and one Black woman have argued before the court since the start of the 2017 term.
None of the justices responded to a request for comment for this story.
Several lawyers and civil rights advocates we spoke to identified two reasons 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 society as a whole” that most of the lawyers arguing before the court are White men, said Samuel Spital, the Legal Defense Fund’s director of litigation and a former Supreme Court clerk.
A greater diversity of perspective and experience: Many lawyers referenced Thurgood Marshall’s oral argument in Brown v. Board of Education, more than a decade before he became the first Black American on the court in 1967.
- “There was a moment in his rebuttal, his closing argument, when he started to describe what segregation looks like,” said Amir Ali, the executive director of the MacArthur Justice Center, who is North African and Middle Eastern and has argued before the court several times. “And he starts talking about kids walking to school together, White and Black, getting along and laughing together, and then having to part ways suddenly when they reach the corner and one has to go to the White school and one has to go to the Black school. And in describing this, he pauses and he says, ‘I’ve seen them do it.’”
- “The power of that, for him to be able to say, ‘I’ve seen it’ — I think in part what he’s implicitly saying is, ‘You may not have seen that, but I have,’” Ali added.
To learn more about the role clerkships, the Justice Department’s Office of the Solicitor General and big law firms play in a system that has produced so few Black and Hispanic lawyers and a disproportionally low number of women lawyers, read our full story.
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