The Supreme Court is more diverse than ever. But the lawyers who argue before it? Mostly white men.

WASHINGTON – When Associate Justice Ketanji Brown Jackson took her seat on the Supreme Court last year, the group of nine jurists tackling the nation's thorniest legal questions became the most diverse in the court's 233-year history.

The lawyers arguing before the court, by contrast, are mostly white men.

For two years, President Joe Biden has made diversifying the federal bench a top priority, culminating in Jackson's confirmation in April as the first Black woman to sit on the Supreme Court. But the number of women and people of color representing clients at the nation's highest court has remained stubbornly low, even as its docket is filled with controversies that touch on gender and efforts to address racial discrimination.

"There definitely is a lot more work to be done to increase Supreme Court argument opportunities for women and also lawyers of color," said Beth Brinkmann, a veteran Supreme Court lawyer and co-chair of the appellate and Supreme Court litigation group at the Covington & Burling law firm.

"It is changing. The momentum is positive," said Candace Beck, president of the Women's Bar Association of the District of Columbia, which is working to connect potential clients with women appellate attorneys. But, Beck said, there's an "ingrained culture" which has taken time to address. And, she quipped, "lawyers hate change."

How many women and minorities argue at the Supreme Court?

• In the Supreme Court term that began in October and will likely end in June, women have made up just over 20% of the lawyers arguing before the justices, according to data compiled by Bloomberg Law. That's slightly below the share for the last term and is roughly on par with the past several years.

• For racial minorities, the disparities are even more striking: Since the start of the Supreme Court's 2017 term, according to a recent analysis by The Washington Post, only 3.6% of lawyers arguing at the court were Hispanic and only 2.3% were Black.

Why does diversity matter for lawyers arguing before the Supreme Court?

Race is a central theme in many of the highest-profile cases before the Supreme Court this term. In late October, in one of those cases, the Supreme Court's conservative majority signaled deep skepticism over the use of race-conscious admissions at American universities. The court is also weighing how far states must go to ensure that congressional districts drawn once a decade don't discriminate against minority voters.

Those advocating for more diversity among Supreme Court lawyers say those debates and others like it would benefit from a wide range of perspectives.

"If you don't have diversity you’re not going to hear those voices. That matters," Beck said. "We need people who have different perspectives to get the full picture."

That is part of the reason the Biden administration has placed such a heavy emphasis on diversifying the federal bench. The four African American women sitting on federal appeals courts at the start of 2021 made up 2% of 179 appellate judges. Today, there are more than double the number of Black women appeals court judges.

The lack of diversity among advocates stands in sharp contrast with the Supreme Court itself, where white men are now a minority. With Jackson's appointment, there are four women justices for the first time: Jackson, Amy Coney Barrett, Elena Kagan and Sonia Sotomayor. There also two African American associate justices, Jackson and Clarence Thomas, and one Latina, Sotomayor.

Capability vs. credentials

Those advocating for greater diversity among Supreme Court lawyers tend to talk in systemic terms: Law schools need to be more proactive about recommending women and people of color for clerkships, they say. Judges need to ensure they are considering the diversity of clerks. Clients should be mindful of the universe of available attorneys.

"When businesses head to the Supreme Court, opening up their process for selecting Supreme Court counsel allows them to make a fully informed choice among numerous highly qualified advocates, beyond the terrific repeat players they likely already know," Brinkmann said. Even if it doesn't work out with a new attorney in a particular Supreme Court case, Brinkmann said, it could mean building a relationship for the next big case.

The number of lawyers who argue at the Supreme Court is relatively small – a byproduct of the specialized nature of the work. The top attorneys in the field appear before the justices multiple times each term and dozens of times over the course of a career.

Tillman Breckenridge, a partner at the Stris & Maher law firm and a veteran appellate attorney, said that it is important for the legal community and clients to recognize that "credentials and capability are not perfectly correlated," particularly when hiring decisions are based on decades-old clerkships. Decades ago, those opportunities were harder to come by for women and minorities starting out in their careers.

"Credentials are valuable metrics that people should rely on to a degree, but when you require people to check racially disparate boxes, you get racially disparate results," said Breckenridge, who founded the appellate and Supreme Court clinic at William &  Mary Law School. "As a law professor, I saw time and again how someone with lesser credentials often proves more capable."

Justice Department driving attorney diversity

Solicitor General Elizabeth Prelogar, the lawyer who represents the Biden administration at the Supreme Court, was most of the way through her argument in one of this term's two major affirmative action cases when she had the kind of moment that those who follow the high court closely are still talking about months later.

Pressed by Associate Justice Brett Kavanaugh to explain when a university might be able to stop considering race in admissions – at what point, in other words, a student body is diverse enough – Prelogar suggested "common sense" might help set the standard.

"The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women," Prelogar noted. "And I think it would be reasonable for a woman to look at that and wonder: Is that a path that's open to me, to be a Supreme Court advocate?"

It was a poignant question, in part because it was delivered by only the second female solicitor general in the nation's history and in part because it struck close to home for the inner workings of the Supreme Court. Prelogar's office, meanwhile, is a driving force behind the number of women lawyers currently arguing at the court.

Of the 10 women who have argued since October, five were from Prelogar's office. 

"Are private clients willing to hire women to argue their Supreme Court cases?" Prelogar asked the justices. "When there is that kind of gross disparity in representation, it can matter and it's common sense."

This article originally appeared on USA TODAY: 'Work to be done.' Supreme Court diversity not reflected in attorneys