Supreme Court’s Career-Enhancing “Friend of Court” Appointments Overwhelmingly Favor White Males

Tuesday, May 17, 2016
(photo: David and Janice Frent Collection)




By Adam Liptak, New York Times


WASHINGTON — 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.”


Shaw explored the court’s appointment practices in a study (pdf) 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, 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.”


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.


About 5 percent of the invited lawyers appeared to be black or Hispanic. “Like the gender figure,” Shaw wrote, “this figure lags behind the overall percentage at the court.” About 10 percent of the lawyers who argued most frequently before the court between 2000 and 2012 were not white, according to another study.


In all, Shaw identified 59 lawyers who had been invited to argue as a friend of the court, typically to press an argument embraced by neither party. The phenomenon is recent and seems to be accelerating.


Shaw counted 54 appointments in the last 50 years, with 19 in the last decade. In the 2012 challenge to the Affordable Care Act, there were two appointed lawyers.


Of the last 26 appointments, 25 went to former Supreme Court clerks, underscoring the clubby nature of the practice. (The other one went to a lawyer who had served as a law clerk to Justice Samuel Alito Jr. when he was an appeals court judge.)


What is not required is experience in arguing before the Supreme Court. Most appointed lawyers were making their Supreme Court debuts.


Shaw applauded the effort to enlarge the small group of lawyers who dominate Supreme Court arguments.


“Giving a young lawyer early in their career this opportunity is an affirmative good,” she said, “but I just think there should be a broader pool from which the justices draw when they’re handing it out.”


She said the court should invite applications from all qualified lawyers, much as anyone can apply for a Supreme Court clerkship.


“A more open application process would inevitably result in a more diverse pool of advocates,” she said. “It would expand it beyond individuals with whom the justices have some existing personal relationship, which does feel something like patronage.”


Appointed lawyers are unpaid, and they can spend months writing briefs and preparing for arguments. They can offer the justices great help in puzzling through, say, a difficult jurisdictional problem. They lose more often than they win, which is to be expected, given the general difficulty of their assignments.


Roberts was an exception, and he alluded to that fact in April after asking one of the lawyers who had argued the last case of the term to return to the lectern.


“Our records reflect that this was your 100th oral argument before the court,” the chief justice told the lawyer, Deputy Solicitor General Michael R. Dreeben. “You are the second person to reach that rare milestone this century.”


“I distinctly recall your first argument, in January of 1989,” the chief justice said, in a sly allusion to the fact that he had been the lawyer on the other side, also arguing before the Supreme Court for the first time.


The young Roberts, who had served as a law clerk to Chief Justice William H. Rehnquist, won the case. He persuaded the court to rule unanimously that the Constitution’s double jeopardy clause applied not only to criminal penalties but also to some civil fines. He may have done his job too well — the court disavowed that decision less than a decade later.


Shaw said Roberts would have reached the apex of his profession whether or not the Supreme Court had given him an early boost. But she urged the justices to be more open in dispensing invitations to other young lawyers.


“The court expands the power and influence of these people,” she said. “But the process of getting this benefit is a closed one that has biases built into it.”


To Learn More:

Friends of the Court: Evaluating the Supreme Court’s Amicus Invitations (by Katherine Shaw, Cornell Law Review) (pdf)

White Men Make Up 79% of Elected State and Local Prosecutors (but only 31% of Population) (by Noel Brinkerhoff, AllGov)

University Professors more Likely to Meet with White Males than with anyone else Requesting Help (by Noel Brinkerhoff, AllGov)

House Republican Committee Leaders: White Men 19; Everyone Else 0 (by Noel Brinkerhoff, AllGov)


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