Solicitor General Noel Francisco plans to step down when the Supreme Court term ends this summer, meaning one of nation’s highest profile non-White lawyers will no longer argue the government’s cases before the country’s most important court.
Francisco, who has argued 17 cases at the high court as solicitor general, is likely to return for more oral arguments in private practice, just less frequently. The small cadre of elite attorneys that argues a disproportionate share of Supreme Court oral arguments includes few other lawyers of color.
Despite being representative of 37% of the American population, Black, Latinx, and Asian lawyers made up just 5% of the attorneys arguing before the Supreme Court from 2005 through 2016, according to a recent study.
This term, minority attorneys argued 17% of cases, and Francisco did a quarter of them. No Black attorneys argued this term, which isn’t unusual.
“The numbers for attorneys of color are atrocious,” said Neal Katyal, a partner at Hogan Lovells, who served as acting solicitor general under President Barack Obama.
“The Supreme Court bar “should reflect the composition of America” said Katyal, whose parents emigrated to the U.S. from India. But the numbers show that the Supreme Court bar is “de facto closed to some portion of our society.”
Larger Challenges
The paucity of non-White lawyers arguing at the court is a reflection of the larger challenges minority attorneys still have gaining entry into elite law practices and the Supreme Court’s own internal diversity challenges.
Of 114 justices to have served on the court, only three have been Black or Latinx and two of them are on the bench right now. The justices record for hiring minority clerks isn’t much better. Tobi Young is believed to have been the first enrolled citizen of an American Indian tribe ever to serve as a clerk. She joined Justice Neil Gorsuch’s chambers for the October 2018 term.
The absence of attorneys of color at Supreme Court oral arguments is all the more glaring as the U.S. is convulsed by protests over police brutality and the Black Lives Matter movement.
Major corporations and law firms have all but tripped over themselves in trying to express empathy with the BLM movement while announcing new efforts to diversify their workforces. But, the Supreme Court’s nine justices have stayed mum while declining to take up a series of cases that would force them to reexamine a high court-born doctrine that often shields police and other public officials from liability for violating the rights of others.
It’s time for the “legal community, particularly the Supreme Court bar, to have an honest conversation about these racial disparities, including the role of implicit bias and how it impacts who gets to argue these cases,” said Juvaria Khan. Last year, she founded The Appellate Project to ensure that courts reflect their communities.
Explaining the Absence
There are “lots of pieces to the puzzle” of why there’s a lack of diversity among SCOTUS attorneys, Katyal said.
A major part of the problem is the Supreme Court bar, which has become more insular over the past couple of decades, said Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund. The tendency to bring in a “hired gun” who has already argued several cases means there’s less room for newcomers.
That creates a chicken-or-egg problem for minority lawyers who are passed over because they haven’t argued at the court before, Khan said.
“The Supreme Court bar is one of the most segregated spaces in our profession,” said Sam Spital, Director of Litigation at the NAACP Legal Defense & Educational Fund.
The lack of diversity extends beyond just the bar itself to the pipeline of clerkships, prestigious law schools, and elite law firms that set attorneys up to practice before the justices, Spital said.
“The elite, insular networks typically relied upon for recruitment and hiring, both by employers and in the clerkship process, means many otherwise highly-qualified law students and lawyers of color are excluded from the opportunities typically needed to position themselves for a future Supreme Court argument,” Khan said.
SG Pipeline
Katyal noted that attorneys often get their first high court argument while working in the solicitor general’s office, which participates in most of the court’s argued cases each term.
Leondra Kruger’s service as Katyal’s principal deputy in the SG’s office helped propel her to a seat on California’s Supreme Court and a spot on many shortlists to one day become the first Black female justice.
But the SG’s office in general is “woefully non-diverse,” Saenz said.
Going back to 1870, there have only been three Black SG’s: Thurgood Marshall, who held the post beginning in 1965 before joining the Supreme Court himself; Wade McCree, who was appointed by President Jimmy Carter, and Drew Days, who served under President Bill Clinton.
Francisco was the first Asian American confirmed to the post, though Katyal served as acting SG for over a year. Similarly, just one woman, now-Justice Elena Kagan, has held the job after Senate confirmation, though Barbara Underwood, New York’s current solicitor general, briefly served as George W. Bush’s acting SG.
Private practice, where a large number of attorneys who argued before the court come from, isn’t doing much better.
Only 2% of all law firm partners were black, according to a recent report, said Maggie Jo Buchanan of the Center for American Progress.
“There’s woeful inattention to diversity” at firms, Katyal said. When working on large cases with other firms, he said he’s often “the only diversity in the room.” But because the bar is so low on diversity at the high court bar, fairly quick progress can be made in this area, he said.
Katyal pointed to his own experience in the SG’s office. Prior to joining, he’d only argued two cases at the high court. While there, he argued 13 and has added 26 since leaving in 2011.
Earlier this term, Mitchell P. Reich, a senior associate working under Katyal, made his SCOTUS debut. In addition to arguing as an associate, his appearance was notable as it’s rare to have an openly gay attorney argue at the high court.
Katyal says he’s got his eye on a couple of non-White associates in his practice whom he’s hoping to get up to the lecturn “as soon as humanly possible.”
Just “one person can make a huge difference here,” Katyal said.
Why Diversity Matters
The absence of attorneys of color at Supreme Court arguments can discourage and deter young attorneys from aiming for these experiences in the future, Saenz said. Their presence can be a symbol to young lawyers of the opportunities available in their careers, he said.
In that way, increasing diversity among Supreme Court advocates could actually “improve diversity throughout the entire legal profession,” Buchanan said, by encouraging minority attorneys to seek out other elite positions within the field.
A diverse mix of attorneys can also impact the outcome of a particular case, said Saenz. “Lawyers of color can often bring a different perspective—one that’s often shared with others in the minority as a whole” yet overlooked by White attorneys.
Having that input adds legitimacy to the court and its decisions, Khan said. The court “issues rulings that directly impact many of the most intimate aspects of our everyday lives: how we vote, pray, police, immigrate, and so on.”
Attorneys of color should have input on how laws, which impact their communities, are interpreted by the Supreme Court, Katyal said.
Saenz said he was particularly disappointed that no Latinx attorneys argued earlier this term over the president’s plans to undo immigration protections for so-called Dreamers. Along with Francisco, two White attorneys—both male—argued instead.
The Supreme Court Thursday sided with Dreamers on narrow grounds, rejecting claims that the administration’s decision reflected animus toward the Latinx community.
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