In one of the blockbuster cases of this term, the U.S. Supreme Court seems poised to strike down the mechanism for ensuring diversity at colleges and universities, reasoning that the need for affirmative action has run its course. But if the high court itself is any indication, racial diversity hasn’t changed much at all. Over the course of the court’s 2012–2013 term, just one black lawyer argued before the court. The Associated Press reports:
In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes. Women were better represented, accounting for just over 17 percent of the arguments before the justices.
In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.
The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients’ cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.
As the article points out, women and minorities have made very limited headway in climbing the ranks at large private law firms, where recent surveys show that 93 percent of partners remain white, and nearly 80 percent are men. But when it comes to Supreme Court litigators, many of these lawyers come from government jobs at the Department of Justice, whose Supreme Court litigation divisions are also largely dominated by white men. Diversity is also even lower than it has been because the high court is accepting less social justice cases in which minority lawyers are well represented. The one African American who did argue before the high court was Debo Adegbile, a former NAACP Legal Defense lawyer who disputed the challenge to the Voting Rights Act.
Limited diversity at the highest levels of the legal profession is a persistent problem that extends outside the courtroom. But inside the courtroom, diversity plays a separate and important role in representing the experiences of Americans, most of whom will never set foot inside the high court, and thus will never see an argument so long as cameras are prohibited in the courtroom. Like the contributions of diverse justices, who have weighed in on social justice cases with important perspectives on discrimination, a diverse lawyer’s contributions are just as substantive as they are symbolic. As Justice Byron White said in a tribute to the late Thurgood Marshall, he “would tell us things that we knew and would rather forget; and he told us much that we did not know due to limits in our experience.”