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Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women.

Mika also accumulated revealing data regarding the employers of the men and women who argued before the Court. During the 2015-2016 term, of the women who argued, 35% were from the Office of the Solicitor General, another 35% were employed by other federal government entities (for example, attorneys from various divisions of the Department of Justice) or state governments, and 25% were in private practice. This distribution contrasts sharply with the distribution of men: only 12% were from the Office of the Solicitor General, 16% were employed by federal or state governments, and 67% were from private practice. In other words, women were much less likely than men to argue before the Supreme Court from private practice. Indeed, only four of the 80 repeat advocates since 2010 were from private practice.

From there, Mika suggests possible explanations for the disparities. Here, the essay is admirably restrained: legal scholars often try to point to a single factor as the explanation for the phenomenon they are discussing. Mika, on the other hand, emphasizes that the explanations for the disparity are likely multiple and that her discussion is likely incomplete. Rather than attempting anything like an exhaustive explanation, she focuses on two possible causes.

The first and more persuasive explanation is the paucity of women partners at private law firms. A woman in private practice who argues before the Supreme Court will most likely be a partner, not an associate. And since women are dramatically underrepresented among partners at private law firms, it is statistically less likely that clients who seek representation from the private sector will select a woman advocate rather than a man. Of course, this explanation merely leads to another question: why are there fewer women than men who are partners at law firms? Since many law firms now hire men and women in equal numbers, the disparity at the partner level is due to attrition. A significant literature has contemplated the causes of this attrition, with plausible hypotheses ranging from the “old boys club” atmosphere of some firms, to a lack of female mentorship, to parental leave policies that disadvantage women, to subtle and perhaps subconscious bias against women that creates a negative work environment, to straightforward discrimination because of gender.

Whatever the cause of the dearth of women partners, Mika does not contemplate an interesting and related question. Suppose that the numbers of men and women partners at private law firms were equal. Would the disparity in the number who argue before the Supreme Court disappear as well? One can think of reasons that perhaps it might not. For example, even if women partners are available in equal numbers, biases among private sector clients might lead to a preference for men as Supreme Court advocates. Moreover, the most relevant comparison is arguably not to law firm partners as a whole, but to the subset of law-firm partners running the appellate practice subgroups in large law firms or working at boutique appellate litigate firms. This specialized subset of partners is disproportionately comprised of former Solicitor Generals or Deputy Solicitor Generals, who also tend to be men—indeed, the only female former Solicitor General, Justice Elena Kagan, is for obvious reasons conflicted out of arguing before the Court.

Somewhat less persuasive is Mika’s evidence for a clear causal link between clerking and becoming a Supreme Court advocate. Most Supreme Court advocates have clerked, and of those a not-insignificant subset have clerked on the Supreme Court. Mika observes that—of repeat advocates since 2010—53% of women advocates and 65% of men advocates have clerked on the Supreme Court. She reasons: “[w]hile Supreme Court clerkship experience does not appear to directly impact an advocate’s likelihood of becoming a Supreme Court advocate generally, it does appear to be an important experience for attorneys interested in becoming a frequent Supreme Court advocate and, by extension, a Supreme Court expert.” She further observes that fewer than one-third of Supreme Court clerks have been women in each year since 2010. While the connection among clerking, clerking on the Supreme Court, and becoming an advocate before the Supreme Court is intuitively plausible, the data suggest there is a relationship between the latter two, but that a Supreme Court clerkship is by no means a requirement. Nearly half of women and over a third of men who become repeat advocates before the Court do so without a Supreme Court clerkship. Still, Mika’s framing of the possible connection is appropriately limited, and she notes that future research may illuminate—or eliminate—the possibility of a causal link.

More broadly, Mika explains that her essay “strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.” The goal is admirable given that many people are determined not to have conversations about gender disparities in general, and gender disparities within the legal profession in particular.

A decade ago, when I was a third-year law student, I noticed a striking gender disparity in the notes published in the Stanford Law Review each year. As a member of that journal, I sought information from my fellow editors about the number of men and women who submitted notes for publication. I reasoned that a publication disparity that tracked a disparity in the number who submitted notes would suggest one explanation, while a publication disparity greater than the submission disparity would suggest another. But the issue remained unexplored: my fellow editors informed me that providing me with the information I sought would raise “confidentiality concerns.” Of course, that explanation could not be the real explanation: someone had the information about who had submitted notes each year, and all I needed was the total number of men and of women who submitted notes, not their actual names.

Dialogue resistance continues today. Not long ago Brian Leiter published a set of his citation rankings, and I wrote up a blog post in which I considered why most of the most cited academics are men. A senior white male professor vehemently insisted to me on social media that obviously men are cited more than women because men publish more than women. When I responded with some data indicating a disparity in per-paper citations, he dismissed it by saying that men and women were both cited “between eight and sixteen times per paper.” Without picking up my calculator, I was pretty sure that the difference between eight and sixteen was a fairly substantial one—and I was pretty sure my interlocutor knew it—but he was tenured and at the time I was not. So I let it go.

The larger point is simply that we should not let the dialogue go. We should not be afraid of asking hard questions, of collecting data and allowing those data to lead us to the most plausible conclusions. My sense is that many well-credentialed white men are, on some level, afraid of examining gender disparities because they are afraid of what it might say about their own achievements. Investigation might well reveal that their accomplishments are due not only to intelligence, skill, and hard work, but also to social factors ranging from implicit bias to workplace leave policies. Admitting that the playing field might not be entirely level forces us to confront the possibility that at some point, some of us might have gotten things we did not earn purely on merit. That is a hard thing to confront. But a fear of the truth is not a reason to avoid dialogue about gender disparity.

Mika’s paper presents interesting and important data and discusses those data in a thoughtful way. Future investigators would do well to build upon her research. Her work contributes to the gender disparity dialogue, and I liked it a lot.

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Cite as: Nancy Leong, On Gender Disparity and Dialogue, JOTWELL (June 16, 2017) (reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN), https://courtslaw.jotwell.com/on-gender-disparity-and-dialogue/.