Female attorneys have a long history arguing before the Supreme Court dating back to Belva Lockwood’s argument in 1880. While Lockwood’s argument helped proverbially break the glass ceiling for women to practice before the Supreme Court, such opportunities have proven difficult to come by as female attorneys only make up a small fraction of the attorneys that argue before the justices each term.
The disparate involvement of male and female attorneys arguing before the Supreme Court has been documented in the past, but perhaps not to this extent. While women are entering law schools at a rate approximately equal to that of men, this distribution has not made its way to Supreme Court oral advocacy. Along these lines, gender parity in an oral argument (with justices and attorneys combined) was reached for the first time in the 2016 case Bravo Fernandez v. United States. Below, I look at the previous five years of data on Supreme Court oral arguments to break down the participation and winning rates of male and female attorneys that argued before the justices.
If we look at all attorneys that have argued before the Court between the 2012 and 2016 Supreme Court terms (a total of 864 attorney arguments), females make up between 17% and 18% of the attorneys.
This is an increase from a 2011 study that found 15% of cases were argued by women. On the whole though, this increase does not bring the sexes to even near equal footing.
By grouping attorneys (above) into: (1) only those that argued on the merits, (2) only non-federal government attorneys that argued on the merits, and (3) only amici that argued, we see that while women make up almost 1/3 of amici, they make up only 13% of all merits arguers and only 11% of all non-governmental merits arguers. The differences in the three groups are mainly due to fact that women make up a larger share of the attorneys that argued on behalf of the federal government than they do of non-governmental attorneys that argued before the Supreme Court.
This disparity between male and female arguing attorneys is equally apparent when we look at the most frequent attorney participants in Supreme Court oral arguments. Between 2012 and 2016 Donald Verrilli, the ex-SG argued the most cases before the Supreme Court with 28.
Several other male attorneys argued more cases than the most active female attorneys – Nicole Saharsky and Sarah Harrington. As attorneys in the Office of the Solicitor General (OSG), Saharsky and Harrington were guaranteed arguments before the Court along with their governmental colleagues. Several male attorneys that did not work for the federal government had more arguments than Saharsky and Harrington over this time period including Paul Clement, Neal Katyal, and Jeffrey Fisher. If we look at all attorneys with five or more arguments before the Court between the 2012 and 2016 terms, Lisa Blatt (at five oral arguments) is the only female on this list that was not a federal government attorney during this period.
To get a clearer picture of female attorneys with multiple oral arguments during this period, the following chart shows female attorneys with more than one oral argument between the 2012 and 2016 including the attorneys in the previous chart. OSG attorneys are in blue and non-OSG attorneys are in green.
Wins and Losses
One reason for the difference in male and female participation levels that can be disregarded has to do with success before the Court. To the contrary, the statistics actually point to women performing better than men during these years.
While the male attorney win rate is at 51%, the female win rate is 8% higher at 59% (the reason both of these rates are over 50% has to do with the inclusion of arguing amici and multiple attorneys arguing for a side on the merits in several cases).
Looking at win rates across similar combinations of attorneys, we see that this disparity between female and male success in the Court generally holds.
On a per-attorney basis, women were more successful than men in the following categories: all attorneys on the merits, non-governmental attorneys on the merits, and amicus win rates. The only category where men outperformed their female counterparts was with governmental attorneys on the merits where men won 45% of their cases while women won 41% of theirs.
Looking at other combinations such as only the petitioners or respondents on the merits’ win rates by sex we that female attorneys were more successful than men.
These data reflect the disparity in female attorneys’ opportunities before the Supreme Court. They also show that most rational explanation for this disparity, that men outperform women, does not hold. Another explanation may have to do with lack of interest, although statistics on women joining the bar discredit this claim as well. Additional fine-grained analyses could help inform our understanding of the male to female oral argument disparity. The message, however, is clear: namely that no reasonable statistical explanation can account for the difference in participation between male and female attorneys before the United States Supreme Court.
On Twitter: @AdamSFeldman
Wins coded based on the United States Supreme Court Database’s partyWinning variable