U.S. Supreme Court
Photo: Roberto Westbrook/Legal Times
Since the days of Daniel Webster and Francis Scott Key, U.S. Supreme Court advocacy has been dominated by white men. It took until 1993 for a ladies' room to be installed near the lawyers' lounge at the Court.
But change has arrived in the upper echelons of Supreme Court practice. Last month's announcement that former acting solicitor general Walter Dellinger was turning over the reins of O'Melveny & Myers' prestigious appellate practice to Sri Srinivasan, born in India and raised in Kansas, is just the latest sign that diversity is blossoming where before there was almost none.
"When I look around at people of my generation [in the practice] I see white males," said Dellinger, who just turned 70. "Now I see women and diversity of every kind."
Women have come to the fore in unprecedented numbers in recent years: Lisa Blatt at Arnold & Porter; Patricia Millett at Akin Gump Strauss Hauer & Feld; Kathleen Sullivan at Quinn Emanuel Urquhart & Sullivan; Deanne Maynard at Morrison & Foerster. At Hogan Lovells, where storied lawyers such as E. Barrett Prettyman Jr. and John Roberts Jr. once reigned, Catherine Stetson is in charge. Maureen Mahoney, a pioneer among women in the Supreme Court bar, has stepped back from chairing Latham & Watkins' practice, but is still active.
Miguel Estrada, born in Honduras, co-chairs the appellate practice at Gibson, Dunn & Crutcher, which also recently hired James Ho, a former clerk to Justice Clarence Thomas who was born in Taiwan. Kannon Shanmugam, the son of Indian immigrants, is Williams & Connolly's top Supreme Court specialist. At Morgan, Lewis & Bockius, R. Ted Cruz, whose father was a Cuban immigrant, leads the Supreme Court practice, and Allyson Ho, James' wife, is co-chairwoman.
Another wave may come soon. Acting Solicitor General Neal Katyal, an Indian-American, is expected to head into private practice later this year, and others in the Obama Justice Department may do the same. Leondra Kruger, the acting principal deputy SG, and a rising star in the department, is African-American. Two white women may be rejoining the ranks too: Deputy Assistant Attorney General Beth Brinkmann, who preceded Maynard at Morrison & Foerster, and Pamela Harris, now principal deputy assistant attorney general in the U.S. Department of Justice's Office of Legal Policy. Harris was formerly a colleague of Dellinger and Srinivasan at O'Melveny.
To be sure, the most established titans of the private Supreme Court bar -- the ones with more than 50 arguments under their belts -- are all white males, most of whom show no signs of slowing down: Sidley Austin's Carter Phillips, with 71 arguments; Mayer Brown's Andrew Frey, who has argued 65; Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, who has appeared 59 times; 58 for Gibson Dunn's Theodore Olson; and Paul Clement, until recently at King & Spalding, who has argued 53 times. The National Law Journal's recently published Appellate Hot List was top-heavy with white males.
But for a variety of reasons, the demographics of the Supreme Court bar are changing. Part of it is generational. Mayer Brown and Sidley Austin launched the modern-day concept of specialized Supreme Court practices roughly 25 years ago, making today a natural time for a changing of the guard to a new pool of talent more populated with women and minorities. "We've been in the system for many years now, with sufficient momentum to convince clients to use us," said Hogan's Stetson, who added that Roberts encouraged her to stick with the firm for advancement. At Sidley and Mayer Brown, men still reign, though Sidley's Virginia Seitz and Mayer Brown's Lauren Goldman have played visible roles.
Dellinger said he had a generational shift in mind when he first joined O'Melveny in 1998 after his stint as acting solicitor general. Srinivasan was his first hire that year. In 2002, Srinivasan left for a tour in the SG's office, returning in 2007. Dellinger's plan was that some combination of Srinivasan, Harris and Jonathan Hacker would eventually take over. Harris left, but Hacker will play a leading role in the appellate practice along with Srinivasan. With some marquee wins at the Supreme Court last term -- Skilling v. U.S. and Hertz Corp. v. Friend -- Dellinger decided "Sri is exactly in the position to be head of this practice." Dellinger, who has been advising the Obama administration informally on the health care legislation and other matters, intends to write and to keep his hand in appellate litigation. "I'd rather do fewer cases and do them well," he said.
Also driving the increased diversity is the proliferation of Supreme Court practices in top firms. Even though the number of cases the Court decides each term has dropped drastically since the 1980s, firms with specialized high court practices have proliferated. Supreme Court practices bring instant prestige, if not profits, and they serve the increasing demand by clients for specialists. Clients once relied on hometown generalists for all their legal work -- including at the Supreme Court -- but not any more. "Much of the business is client-driven, and clients of all stripes have come to believe there is something to be gained by going to a firm with an appellate practice," said Srinivasan.
"More and more firms want appellate practices, and want to be perceived as players at that level," said Irving Gornstein, executive director of Georgetown University Law Center's Supreme Court Institute, formerly with O'Melveny.
This trend happened to catch on at a time when several women and minorities were leaving the solicitor general's office, and other SG veterans became available. For firms building new appellate practices and those that already had them, Blatt, Maynard, Millett, Shanmugam and Srinivasan brought ready-made expertise and credibility along with them.
Gornstein said the SG's office "has not done fantastically well on racial diversity" but it has clearly been the source of many of the women and other minorities who have risen to the top in recent years.
"The more you get diversity in the solicitor general's office, the more diversity you will get in the Supreme Court bar," said Blatt, who has argued 30 cases, more than any other woman, at the Supreme Court. Only recently, however, have there been many women in the SG's office. In her 13 years there, Blatt said she never had more than three female colleagues at any one time. Six of the 22 lawyers there now are women.
And if the SG's office has been the incubator of female and minority appellate talent of late, then the increase in diversity among Supreme Court law clerks has also played a role, said Shanmugam, who clerked for Justice Antonin Scalia in 1999.
"There was a time when you could go to the SG's office without a Supreme Court clerkship, but more recently it has become almost a prerequisite," said Shanmugam of Williams & Connolly.
Even though other kinds of diversity are flourishing, African-Americans are still a rarity at the high court, with Morrison & Foerster's Drew Days III, a former solicitor general, one of the few blacks seen at the lectern with any frequency. He has argued 24 cases at the high court. The dearth of African-Americans in the bar is matched in the ranks of high court clerks and in the SG's office as well. A 1991 African-American Harvard Law School graduate by the name of Barack Obama had a clear shot at becoming a Supreme Court clerk and appellate litigator, but he headed into another line of work.
For some women, said Arnold & Porter's Blatt, cultural barriers persist having to do with the combative intensity of Supreme Court arguments. "I've heard countless women -- but not a single man -- say to me, 'I could never stand up before the Supreme Court; it would be way too stressful,' " she said in a speech before the Chautauqua Institution last year. "But I've heard countless men, and very few women, say to me: 'I would love to argue in front of the Court; that would be so exciting.' "
Blatt added, "That anecdotal evidence is consistent with my experience from kindergarten through 12th grade where, with one exception, I saw only boys getting into fistfights."
