The Attorneys’ Gender: Exploring Counsel Success before the U.S. Supreme Court

AuthorJonathan S. Hack,Clinton M. Jenkins
Published date01 September 2022
Date01 September 2022
Subject MatterArticles
Political Research Quarterly
© 2021 University of Utah
Article reuse guidelines:
DOI: 10.1177/10659129211017231
“Intrinsic professional competence alone matters. The name
or fame of counsel plays no part whatever in the attention
paid to argument, and is wholly irrelevant to the outcome of
a case.”
—Individual Statement of Mr. Justice Frankfurter, in Dennis v.
US, 340 US 887 (1950)
Reflecting on her career practicing before the Court,
Lisa Blatt noted, “women have a harder time than men
successfully arguing before the Court.”1 This is not sim-
ply the view of Ms. Blatt. There is a widely held belief
that these hurdles and discriminatory practices exist in
the courtroom, resulting in women attorneys fairing
worse than men before the Court (Gleason, Jones, and
McBean 2019; Karpowitz and Mendelberg 2014; Patton
and Smith 2017; Szmer, Sarver, and Kaheny 2010).2
Associated claims suggest that men attorneys force out
women attorneys from getting Supreme Court cases
(Mencimer 2016), that women are less interested in argu-
ing before the Supreme Court (Brinkmann 2003), and
that they are less successful advocates. A growing litera-
ture on gender and courts has investigated how these
challenges manifest in America’s judicial system.
In this paper, we focus on an under-investigated area:
How attorney gender might influence Supreme Court
outcomes. Extant work has found mixed evidence to sup-
port notions of a gender bias. We revisit this topic, asking:
Do women advocates disproportionately lose before the
Court? By constructing an original data set of all orally
argued cases with a signed opinion from 1946 to 2016,
we find no systematic differences in the likelihood of
petitioner success when represented by a woman or a
Our approach offers an expanded time frame,4 which
is positioned to explore how women have fared over time
as well as whether women’s increased presence in the
Court has led to changes in gender-based success rates.
Moreover, by exploring attorneys’ personal-level profes-
sional attributes, we show that professional stature is
more important for understanding decisional outcomes
and sheds light on research explaining how attorneys are
treated during oral arguments.
Beyond this, our findings have implications for
research exploring gender and judicial decision-making.
As we illustrate, the women who argue before the
Court are in many ways a class unto themselves. Near-
universally, their careers as litigators before the Court
start as government lawyers arguing cases on behalf of
the Office of the Solicitor General. Given the unique role
17231PRQXXX10.1177/10659129211017231Political Research QuarterlyHack and Jenkins
1Lehigh University, Bethlehem, PA, USA
2Birmingham-Southern College, AL, USA
Corresponding Author:
Clinton M. Jenkins, Department of Economics and Political Science,
Birmingham-Southern College, Box 549007, 900 Arkadelphia Rd.,
Birmingham, AL 35254, USA.
The Attorneys’ Gender : Exploring
Counsel Success before the
U.S. Supreme Court
Jonathan S. Hack1 and Clinton M. Jenkins2
Stereotypes are powerful heuristics structuring decision-making, with research suggesting that gender-based stereotypes
place women at a professional disadvantage. This paper tests whether attorneys’ gender influences Supreme Court
outcomes. We construct an attorney-focused data set combining personal and professional attributes with case-level
characteristics from 1946 to 2016. Our approach brings clarity to previous findings, enabling a longitudinal analysis
of women participation before the Court. We find that attorney gender does not influence party success. In doing
so, we show that a more nuanced approach is needed when studying the intersection between judicial outcomes and
attorney traits.
gender and courts, oral arguments, U.S. Supreme Court, judicial decision-making
2022, Vol. 75(3) 632–645

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