Tobi Raji and Theodoric Meyer, Washington Post, July 24, 2023
When Solicitor General Elizabeth B. Prelogar defended college affirmative action programs before the Supreme Court in October, she cited the lack of diversity in a group of people the justices know well: the lawyers who argue before them.
Just two of 27 lawyers who appeared before the court over the next two weeks would be women, Prelogar told the justices — a statistic that she argued could lead women to wonder whether they have a shot at arguing before the Supreme Court.
Prelogar cited only the dearth of women and not of Black and Hispanic lawyers arguing before the court, but her message in a case dealing with race-conscious admissions programs was clear.
“When there is that kind of gross disparity in representation, it can matter and it’s common sense,” she told the justices.
Her argument didn’t sway the court’s conservative majority, which ruled last month that Harvard and the University of North Carolina’s affirmative action programs were unconstitutional.
It did garner the attention of the court’s three liberal justices, who cited Prelogar’s remarks in a dissent, warning that “inequality in the pipeline to this institution, too, will deepen.”
But a similar lack of diversity to the one Prelogar pointed out in her argument has persisted for years in the solicitor general’s office, which is part of the Justice Department and represents the federal government before the Supreme Court.
Over the past dozen terms, nearly three-quarters of Supreme Court arguments made by lawyers in the office have been delivered by men, according to an analysis by The Washington Post.
More than 80 percent have been made by White lawyers, according to the analysis of the office’s attorneys whose race could be confirmed. No Hispanic lawyer has argued a case for the office since 2016. No Black lawyer has done so since 2012.
Prelogar has taken steps since the Senate confirmed her in 2021 to make the office more diverse.
But the years-long absence of Black and Hispanic lawyers from the office demonstrates the glacial pace of change even in an office whose leader says she is committed to diversity and who works for a president who has promised “to build an administration that looks like America.”
Among the challenges are federal hiring rules that forbid taking race or gender into account as well as a low turnover rate among lawyers in the office, the vast majority of whom are civil servants, not political appointees.
Critics argue that the office’s preference for hiring former Supreme Court clerks — who historically have been disproportionately White — has made it harder to achieve diversity.
Neal Katyal, who served as acting solicitor general during the Obama administration, said the office needs racial and ethnic diversity — along with diversity of political views, religion and sexual orientation — to make the best arguments before the court.
“You are arguing your case to nine justices who come from a variety of different perspectives,” said Katyal, who is Indian American. “And to have a workforce that is attuned to those differences in ideology, approach, outlook and background makes for much better advocacy strategy.”
Advocates for a more diverse Supreme Court bar also argue the solicitor general’s office has a special responsibility to reflect the country it serves.
“The solicitor general is often referred to as the tenth justice. The lawyers in the office represent us, the United States,” said Juvaria Khan, the founder of the Appellate Project, which seeks to help more lawyers of color do appellate work. “Because they represent the people, they should prioritize developing an office that reflects all our people and the diversity of the country.”
Lawyers and academics who follow the court closely said that diversifying the solicitor general’s office could have an outsize effect on the diversity of the broader group of lawyers who argue before the court, in part, because lawyers in the office appear so often. Lawyers who argue before the Supreme Court are disproportionately White and male.
The simplest way to diversify the Supreme Court bar “is to diversify the SG’s office,” said Noah Feldman, a Harvard Law School professor and former Supreme Court clerk.
There are about 21 lawyers in the solicitor general’s office, including five deputies and 15 or 16 assistants. Prelogar has filled five openings during her tenure.
One of them, Luke McCloud, is a Black man. He’s set to make his first Supreme Court argument since joining the office next term. Three of them — Yaira Dubin, Aimee Brown and Caroline Flynn — are White women. The fifth, Ephraim McDowell, is a White man.
The number of arguments delivered before the court by women in the office has gone up under Prelogar, in part because solicitors general typically argue many cases themselves. Women argued 40 percent of the office’s Supreme Court cases during the 2022 term, according to The Post’s analysis. That’s higher than the overall share of arguments delivered by women — 23 percent — before the court last term.
Racial diversity is another story.
White lawyers argued 84 percent of the office’s Supreme Court cases during the most recent term and Asian American lawyers argued 16 percent, according to an analysis of the attorneys whose race The Post was able to confirm. Prelogar and all five of her deputies are White.
Some conservatives have expressed skepticism that increasing racial and gender diversity would lead Supreme Court lawyers to make better arguments.
Still, advocates for diversity are becoming impatient with the pace of change.
“It’s really disheartening, especially around issues that acutely affect women of color, when there are no women of color arguing before the court,” said Fatima Goss Graves, the president and chief executive of the National Women’s Law Center.