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

• Author: Jonathan S. Hack,Clinton M. Jenkins
• DOI: http://doi.org/10.1177/10659129211017231
• Published date: 01 September 2022
• Date: 01 September 2022
• Subject Matter: Articles

https://doi.org/10.1177/10659129211017231

Political Research Quarterly

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DOI: 10.1177/10659129211017231

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“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

man.3

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

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17231PRQXXX10.1177/10659129211017231Political Research QuarterlyHack and Jenkins

2

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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.

Email: cmjenkin@bsc.edu

The Attorneys’ Gender : Exploring

Counsel Success before the

U.S. Supreme Court

Jonathan S. Hack1 and Clinton M. Jenkins2

Abstract

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.

Keywords

gender and courts, oral arguments, U.S. Supreme Court, judicial decision-making

2022, Vol. 75(3) 632–645

Article