The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
If that seems unremarkable, spend some time at the Marble Palace. It is well known, of course, that only four women have ever served on the nation’s highest court, and that it wasn’t until Elena Kagan became the 112th justice in 2010 that the court had three women serving at the same time.
But the percentage of female advocates with résumé-making appearances before the justices is surprisingly low, as well. According to SCOTUSblog, less than 20 percent of the lawyers who have appeared before the court in recent years have been women.
That is what made the double-jeopardy case, Bravo-Fernandez v. United States, in which veteran Supreme Court practitioner Lisa S. Blatt squared off against Assistant Solicitor General Elizabeth B. Prelogar, so unusual.
Gender parity is a possibility because — with Senate Republicans refusing to move on President Obama’s nomination of Judge Merrick Garland to fill the seat of the late justice Antonin Scalia — the court has its lowest number of male justices in modern times.
But Adam Feldman, a scholar of the court who created the blog Empirical SCOTUS, can find only one other instance when the presence of two female advocates created the same dynamic, even when one of the male justices recused himself.
This term’s opening round of arguments made headlines because so many female lawyers made appearances. In the eight cases the court considered, 11 men and eight women were at the lectern.
“It’s incredible, isn’t it? It’s so great,” said Blatt, who added in a deadpan joke: “I think it’s an aberration.”
It is no surprise to find Blatt among the group. She has made more appearances at the Supreme Court — 34 — than any other woman. Now a partner at the law firm Arnold & Porter, she formerly worked in the Office of the Solicitor General, the federal government’s chief appellate lawyer. Blatt and almost every repeat Supreme Court advocate have argued most of their cases before the justices as government lawyers.
Blatt noted that only three of the women who argued this month worked for corporate law firms.
One of them was Kathleen M. Sullivan, who represented Samsung in a patent case worth hundreds of millions of dollars to the company. Sullivan is a constitutional expert and a former dean of Stanford Law School, who also holds another surprising distinction.
When her firm in 2010 added “Sullivan” to rechristen itself Quinn Emanuel Urquhart & Sullivan, she became, as the firm’s website puts it, the “only woman whose name is on the door at one of the 200 largest U.S. law firms.”
Sullivan is a familiar player at the Supreme Court, but one of the female lawyers making her first argument at the court this month was Christina A. Swarns, director of litigation at the NAACP Legal Defense and Educational Fund (LDF). Her organization did some research and believes she is the first African American woman to make an appearance at the court in three years.
Swarns was representing a Texas death-row inmate who says his sentencing was unconstitutionally marred by the racially discriminatory testimony of a psychologist whom his own attorney called to the stand.
Swarns said she had four months to prepare for the argument, had “extraordinary and enthusiastic support” and was following a tradition: The LDF’s former counsel, Constance Baker Motley, argued 10 Supreme Court cases in the 1960s.
Still, “I was acutely aware of the fact that I was one of a very small number of women of color who have been standing there,” she said in an interview after the argument.
It has been well documented that an elite group of Supreme Court specialists, many of whom have clerked at the court, has emerged to account for a growing number of the arguments made there. In the last term’s arguments, for instance, the advocates included 11 former Scalia clerks.
In addition, the court takes fewer cases than in the past, reducing the number of opportunities.
Blatt and Prelogar, adversaries in the Bravo-Fernandez case, are in a way representative. Blatt clerked for Ruth Bader Ginsburg when Ginsburg was on the U.S. Court of Appeals for the District of Columbia Circuit. Prelogar clerked for her at the Supreme Court and then stayed an additional year to work in Kagan’s chambers in her first year on the bench.
The justices to a person say oral arguments are overrated when it comes to determining the outcome of a case; the briefs filed beforehand are far more influential.
Still, there is something important and symbolic in standing before the justices. “I do think women sell themselves too short,” Blatt said.
Litigation in general and oral arguments specifically are combative and competitive environments that fewer women than men crave, she said.
Blatt wrote about the Supreme Court’s “gender gap” in a piece for the Green Bag Review in 2010.
“Male lawyers generally are more fearless in this type of verbal battle, even though from my experience many of those men are obviously clueless that they have no talent,” she wrote.
She added: “That anecdotal evidence is consistent with my experience from kindergarten through twelfth grade where, with one exception, I saw only boys getting into fist fights.”