Tuesday, May 24, 2016
A couple of times each term, the Supreme Court appoints a lawyer to argue a case before it as a friend of the court. Such appointments are a high honor, and they can turbocharge an already promising career.
Chief Justice John G. Roberts Jr.’s first Supreme Court argument, when he was 33, was as an appointed lawyer. That was a big break, and it was the result of a sort of patronage system, dominated by white male lawyers, that has received surprisingly little scrutiny.
“The court has this chit to give out,” Katherine Shaw, who teaches at Benjamin N. Cardozo School of Law in New York, said in an interview. “It has a lot of prestige. It can obviously be lucrative down the road. It can have significant impact on a lawyer’s future career advancement. The court is sort of anointing chosen individuals.”
Professor Shaw explored the court’s appointment practices in a study to be published in The Cornell Law Review. “The current approach,” she wrote, “permits the justices to dole out the valuable asset of a Supreme Court argument to friends and former employees, in a way that is reminiscent of the cronyism and patronage that characterized government employment” before the Civil Service reforms of the 19th century.
One of the study’s notable findings, Professor Shaw said in the interview, was that “gender and race diversity numbers for invited advocates lag behind even the already low overall numbers in Supreme Court advocacy.”
Professor Shaw found that about 10 percent of appointments went to women. By comparison, according to a tally by Tony Mauro of The National Law Journal last week, women presented 23 percent of the arguments over all this term.