Perhaps moved by my recent viewing of the movie bio of Ruth Bader Ginsberg, On the Basis of Sex, in pondering how much we’ve progressed in gender equality in our own vocation since the days of her early battles as portrayed in that film, here’s a dispiriting article from Bloomberg law about how the chances of arguing in front of the Supreme Court if you are a woman appear worse than winning the lottery – woman have made up a whopping 17 of 112 appearances so far this year. Also not boding well for the future, of those 17, only six came from private law firms; the rest were from the government (versus 45 of the men from firms): Women Argue Only a Fraction of Supreme Court Cases (Bloomberg Law.com Jan. 30, 2019)
Why is this so?
The article says that one factor is that oldsters hog the podium, and that self-perpetuating group is largely male. But also, there’s been a big decline recently in women in the “feeder job” going into Supreme Court practice – the Solicitor General’s office. There are 16 assistants in that office. Not so long ago, half were women. Now it’s down to four, and one is probably leaving to sit on a trial court bench. All four current deputies are male.
Is all gloom and doom? 45% of federal appellate clerks are women, with historically only 35% clerking at the Supreme Court level. This year, it’s 51% at the Supreme Court. Justice Kavanaugh hired the first all-female class of clerks at that level. (Hmm…. I’m sure his decision was based solely on the merits, but might he have perceived he had a teensy image issue with some women?)
Given the itsy percentage of lawyers who ever argue at the Big Show, are these statistics really significant? Well, harking back to the Ginsburg movie, a chunk of it takes place at another elitist institution, Harvard Law School in the 1950’s. The antediluvian dean (played by Sam Waterston, who always seemed so nice on Law and Order – who knew?) does his best not only to keep his school free of those females who should be staying home vacuuming in their pearls taking care of Harvard men, but also tried hard to prevent the law as a whole from protecting women against discrimination.
The 2021 Harvard Law class is 49% women, with 44% students of color