Lost Ground

• Author: Mark Walsh
• Pages: 20-21

Lost Ground

The number of women arguing before the court has fallen o steeply

By Mark Walsh

In this year’s popular documentary RBG, Justice Ruth Bader Ginsburg refl ects

on, among other things, her years during the 1970s as an oral advocate before

the Supreme Court, where she won fi ve of the six cases she argued as a champion

of women’s rights.

“I did see myself as kind of a kindergarten teacher in those days because the judges didn’t

think sex discrimination existed,” Ginsburg refl ects in the fi lm, which includes audio clips

of sexist and patronizing comments by members of the then all-male court.

There has been change , of course, with four women

having been appointed to the cour t, three of them

serving toget her now. And female advocates at ora l

argument are not the rar ities they were when Ginsburg

last appeared in 1978.

However, Justices Ginsburg, Sonia Sotomayor, Elena

Kagan and their ma le colleagues saw fewer women

arguing before them in t he 2017-18 term, and the fewest

to participate in ora l argument in at least seven years.

During the recently completed t erm, there were 19

appearances at oral a rgument by women, or about 12

percent of the total 163 appearanc es, according to

statistics kept by Ked ar Bhatia for SCOTUSblog. (There

were 113 di erent advocates who argued for par ties

or amici in the 63 argue d cases, with several lawyer s

appeari ng more than once.)

The 12 percent fi gure wa s a steep drop from the pre-

vious term (2016-17), when 21 percent of appearances at

oral argument were by women. In the prev ious fi ve year s

to that term, the par ticipation rate for women ranged

from a low of 15 percent to a high of 19 percent.

“The thing that’s most dist urbing to me is the consis-

tency in the data,” says Jennifer Cr ystal Mika, an adjunc t

professor at American Universit y’s Wa shington College

of Law in the nation’s capital, who has studied the i ssue

of female advocates before t he high court. “There has

never been much more than 20 percent female advoc ates

over the last 20 years.”

SAME WORK, LESS PAY

It’s a bit of an old story to some prominent female

Supreme Court advocate s, but one even they admit is

worthy of cont inued discussion.

“I would have thought this would have been fi xed by

now,” says Lisa S. Blatt, a partner with A rnold & Porter

Kaye Scholer who has argued 35 c ases—more than any

other woman—before the Supreme Court.

In 2010, in the Green Bag online law journa l, Blatt

wrote an ar ticle about arguing before the justices in

which she observed that men of the elite Supreme

Court bar are more li kely than women to represent

corporate clients, whi le “the women I see arguing before

the court are public interest l awyers, public defenders

represent[ing] the crimi nally convicted or government

lawyers. Translation: Women are doing the same work

but for less pay.”

Today, Blatt holds to her view that one reason men

have maintained a stronghold on oral a dvocacy is that

the courtroom is a batt lefi eld where verbal jousti ng and

sparring wit h the justices is rewarded.

“You have to be not just fearless but aggressive,” she

says.

Pamela S. Karlan, a St anford University law professor

who has argued eight time s before the high court, says

a certain level of ag gressiveness is needed not only at

the lectern but in seeki ng out argument opportunities.

“I think it is hard to ge t a fi rst a rgument, and

without getting a fi rst argument it is hard to get more

arguments,” she says. “There is a n aggressiveness in

rainmaki ng that not all men have, but most of the people

who have it are men.”

She says there are aspect s of business development at

fi rms that c an feel “arrogant and pushy,” characteristics

that “fewer women than men have.”

“I feel completely comfortable arg uing before the

court, but I often fe el di dent about pushing myself

as the person who should argue the c ase,” Karlan says.

Karlan, like Blat t, has been refl ecting on the issue

for years. In 2010, she participated in an e vent at

Georgetown Universit y Law Center about female oral

advocates before the high c ourt that included Justice

Ginsburg, as well as s ome other prominent female

attorneys. Ginsburg m ade the point that while oral

argument is an impor tant part of the court’s deliberative

process, it is also “a show” and t he briefi ng in a ca se is

much more import ant.

Karlan arg ued and won a case this past term, Lozm an

v. City of Rivieria Bea ch, Florida, in which the cour t

held that her client, Fane Lozman, a spea ker who was

arrested at a cit y council meeting, could pursue his First

Amendment retaliation suit des pite the existence of

probable cause for his arrest .

Supreme

Court

Report

20 || ABA JOURNAL AUGUST 2018

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