James R. Layton
Margaret A. Hesseby James R. Layton and Margaret A. Hesse
Recently, researchers reported on the gender of attorneys arguing before the U.S. Supreme Court and other appellate courts. As a woman-owned law firm, those reports caught our attention. As the Missouri Supreme Court returns to oral arguments after its summer break, we contribute to that growing body of articles with a look at the gender of those who argue before that Court.
Women on the bench
Before turning to who argues at the attorneys’ podium, we review the history of women on the Missouri Supreme Court bench.
That history began in 1989 with the appointment of Judge Ann Covington. This was followed by the appointment thirteen years later of Judge Laura Denvir Stith in 2001. The 2007 appointment of Judge Patricia Breckenridge gave women three of the seven seats on the Missouri Supreme Court-a 43% ratio that has been the same ever since. Over the same period, there has been a substantial increase in the number of female judges in other Missouri Courts. According to Chief Justice George Draper, when he became a Missouri lawyer in 1984, there were 17 female judges in the State, but by 2019, 29% of the judges were women.[1]
The proportion of female judges on the Missouri Supreme Court is higher than the proportion of women in the profession-but the proportion of female judges overall (appellate and circuit courts) is lower than the proportion of women among active lawyers: “Of Missouri’s active lawyers who reported their gender, 36% are female.”[2]
Women arguing in courts elsewhere
Speaking of the U.S. Supreme Court, one author observed: “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 Missouri Supreme Court has a “bare majority” of males; one of them is African-American. But how about the gender of those arguing before that court?
Before answering that question, let’s look at what’s happening in the U.S. Supreme Court and in some other federal and state supreme courts.
A number of articles and studies have looked at the gender balance among those arguing in the U.S. Supreme Court.[3] Despite the fact that this Spring the first telephone argument before that court was done by two women advocates, the studies point out that women are arguing counsel in a small portion of the cases in that Court-17-18% in various reports. During the 2019 term, there were 136 arguments by men and only 20 by women[4]-just 13%.
A review of arguments in the U.S. Court of Appeals for the Fifth Circuit found that the proportion there was similar to the U.S. Supreme Court-17%.[5]
And a review of arguments in the U.S. Court of Appeals for the Federal Circuit found that just 20% of those arguing so far this year were women.[6]
Reviews of high courts of other states show higher rates of women presenting oral argument.
A recent article took a close look at women arguing before the California Supreme Court and concluded that 35% of arguments were made by women.[7] (But that compares to 42% of the California attorneys being female.[8])
In a recent survey of New York Court of Appeals arguments women had “an appearance rate of 26.8%”-down from 39.4% of appearances in a report three years earlier..[9]
Women arguing in the Missouri Supreme Court
In terms of the proportion of advocates before the court who are women, the record in the Missouri Supreme Court falls below the California Supreme Court and the New York Court of Appeals, but above the United States Supreme Court and the U.S. Courts of Appeals for the Fifth and Federal Circuit. As in California, the number of women arguing before our Supreme Court is significantly less than the number of Missouri attorneys who are women.
Like the author of the California review, we looked at arguments for a recent year-in this case, from April 2019 through March 2020 (the last month before arguments were interrupted by the pandemic). During that period, we counted 157 arguments by counsel to the Missouri Supreme Court. Of those 122 (78%) were by men, and just 35 (22%) by women.
The ratios vary among three categories of cases: criminal (defined here to include habeas corpus, post-conviction, and juvenile matters, as well as criminal appeals); attorney discipline; and civil appeals:
- Criminal: Men argued 26 times (72%); women argued 10 times (28%).
- Attorney discipline: Men argued 20 (83%) times; women argued 4 times (17%).
- Civil: Men argued 76 times (78%); women argued 21 times (22%).
The number of arguments during the year in the Court by men and women, from private practice or employed by the government, is shown here:
There is a notable difference between attorneys employed by the government and those employed privately. Among private counsel, men argued 88 times (89%) and women argued 11 times (11%). Among government employed counsel (which includes public defenders), men argued 60 times (71%) and women argued 24 times (29%).
The nature of the case has an impact: Government-employed attorneys argued 86% of the time in criminal cases. By contrast, government-employed attorneys argued just 27% of the civil cases.[10]
The government-employed groups from which the 27% are drawn have a significant number of women. Most government-employed counsel arguing in the Missouri Supreme Court are employed by the Missouri Attorney General or by the Missouri Public Defender. Of the 13 attorneys in the Criminal Appeals Division of the Attorney General’s Office, four (31%) are women. Of the 34 attorneys in Public Defender offices responsible for appeals, 20 (59%) are women. By contrast, when we looked at the websites of what are reported to be the 11 largest private law firms in Missouri, we found that just 21% of those listed as doing appellate work in Missouri were women.
The impact of the women employed by the Public Defender is particularly notable. They made 10 of the 24 arguments by women during the year. If their arguments are removed from the analysis, the percentage of arguments made by women drops from 22% to just 17%. Remove the arguments by the female Assistant Attorney General (not in the Solicitor’s office) who argued three times, and the number drops to 15%.
Some researchers have associated the lack of women arguing before the U.S. Supreme Court in recent years with the movement of arguments to a small group of Supreme Court specialists-most of them males. These “repeat players” present many-perhaps most-arguments in the U.S. Supreme Court.[11]
“It’s a different story at the California Supreme Court. In calendar year 2019, there were only nine repeat players (three of them women), and no single attorney argued more than two cases.”[12]
“Repeat players” appear to be more common in the Missouri Supreme Court than in California. For the year we reviewed, there were 22 attorneys who argued more than once. Two of those argued three times, one man and one woman, both from the Missouri Attorney General’s Office. One argued five times-a man from the Missouri Attorney General’s Office. And the Chief Disciplinary Counsel, a man, argued six times. Of the remaining 18, only four were women-all of them assistant public defenders.
The scarcity of appellate arguments by women is not the result of a lack of interest by women in appellate litigation: More than 40% of the members of the Missouri Bar’s Appellate Practice Committee are women.
Nor is it likely to change in the near term: Though we do not yet know who will argue the 15 matters on the Missouri Supreme Court’s argument docket for September 2020, women are on the briefs or have appeared in just five. Two of those are lawyer discipline matters where a woman is appearing for the Chief Disciplinary Counsel. Women in private practice have appeared in just two matters-always with at least one male colleague.
A few conclusions:
- Women are much more likely to argue before the Missouri Supreme Court if they are employed by the government than in private practice.
- Women in the public defender service are more likely to argue before the Missouri Supreme Court than are those employed elsewhere (usually the Attorney General’s office).
- Women in private practice rarely argue before the court.
Those who share our concern about the representation of women as arguing counsel in appellate courts have suggested a wide range of steps to firms, clients, and courts.[13] Among those steps are developing active sponsorship, rather than more passive mentoring, of women in firms; clients asking specifically for women attorneys not just to be on litigation teams, but to take speaking roles in both trial and appellate courts; and judges personally recognizing the contribution of women attorneys who argue before them.[14] But the first step is to recognize that despite the progress of women in the profession, they are still under-represented at the podium in the appellate courts.
[1] “Missouri Judiciary releases 2019 Diversity Report,” https://news.mobar.org/missouri-judiciary-releases-2019-diversity-report/ .
[2] Id.
[3] E.g., Dr. Adam Feldman, “A Dearth of Female Attorneys at Supreme Court Oral Arguments,” Oct. 22, 2017, https://empiricalscotus.com/2017/10/22/dearth-female-args/; https://news.bloomberglaw.com/us-law-week/three-women-25-men-set-to-argue-at-supreme-court-in-november; “Three Women, 25 Men Set to Argue at Supreme Court in November,” https://www.law360.com/articles/1087277; Tony Mauro, “At the Supreme Court, Where Are the Women Advocates?”, https://www.law.com/nationallawjournal/2019/10/02/at-the-supreme-court-where-are-the-women-advocates/; Mark Walsh, “Number of women arguing before the Supreme Court has fallen off steeply,” https://www.abajournal.com/magazine/article/women_supreme_court_bar; Rorie Spill Solberg, et al., “Open Judicial Politics,” Chapter 1.1, “Riddled with Exclusivity: The Homogeneity of the Supreme Court Bar in the Roberts Court,” https://open.oregonstate.education/open-judicial-politics/chapter/riddled-with-exclusivity-the-homogeneity-of-the-supreme-court-bar-in-the-roberts-court/.
[4] See https://news.bloomberglaw.com/us-law-week/women-advocates-to-muted-justices-5-tele-argument-moments.
[5] Calculations by Raffi Melkonian, https://twitter.com/RMFifthCircuit/status/927931657092583424.
[6] Perry Cooper, “Women Lawyers Find Arguing Patent Appeals “˜Strange and Lonely,'” https://news.bloomberglaw.com/ip-law/women-lawyers-find-arguing-patent-appeals-strange-and-lonely
[7] Max Carter-Oberstone, “By the Numbers: Gender Diversity at the California Supreme Court” https://www.linkedin.com/pulse/numbers-gender-diversity-california-supreme-court-carter-oberstone/
[8] “Diversity & Inclusion in the California Legal Profession,” http://www.calbar.ca.gov/Portals/0/documents/BarBrief/Bar-Brief-1.pdf
[9] N.Y. State Bar Ass’n, “The Time is Now: Achieving Equality for Women Attorneys in the Courtroom and in ADR: 2020 Women’s Initiative Task Force Follow-up Study” (“NYSBA Follow-up Study”) at 22. See also “Are Women Getting a Better Chance to Argue in State Appellate Courts? Like in Most of the Law, the Answer is “˜It Depends.'” https://nysappeals.com/2017/11/09/are-women-getting-a-better-chance-to-argue-in-state-appellate-courts-like-in-most-of-the-law-the-answer-is-it-depends/; see also
[10] The New York study saw the same pattern. NYSBA Follow-up Study, supra n. 9, at 22.
[11] See, e,g,, “The Echo Chamber: A small group of lawyers and its outsized influence at the U.S. Supreme Court,” http://www.reuters.com/investigates/special-report/scotus/ ; Solberg, supra n. 3.
[12] Carter-Oberstone, supra n. 6.
[13] See, e.g., sources cited at: https://mobar.org/site/content/About/CommitteeDivisions/JCWP/Resources_for_Women_Lawyers.aspx
[14] E.g., NYSBA Follow-up Study, supra n. 9, at 34-91.
James Layton leads the firm’s Appellate practice group and is a member of the firm’s Commercial Litigation, Labor, and Education groups. He assists clients with analysis and presentation of complex legal issues in Missouri and federal courts, both trial and appellate. In addition to handling cases himself and with other attorneys at Tueth Keeney, Jim consults with clients on appellate strategy and assists other counsel in high-stakes, complex appeals.
Jim has briefed and argued cases before the U.S. Supreme Court and before all Missouri appellate courts””including nearly 100 cases before the Missouri Supreme Court. He has represented clients in U.S. district courts and in Missouri circuit courts from Jackson County to the City of St. Louis. He has extensive experience with government-related litigation and state taxation disputes. Jim is a fellow of the American Academy of Appellate Lawyers, a past president of the Bar Association of the U.S. Court of Appeals for the Eighth Circuit, and a past chair of the American Bar Association’s Council of Appellate Lawyers. He is a frequent speaker in the areas of appellate practice and constitutional law, both state and federal.
Margaret A. Hesse is a shareholder with the law firm of Tueth Keeney. She primarily practices in the areas of education law, employment law, and litigation and has represented school districts across both Missouri and Illinois for many years. Margaret’s experience in includes defending school districts in matters involving the Americans with Disabilities Act, the Missouri Human Rights Act, Title VII, the Safe Schools Act, Title IX, the Equal Pay Act, Section 1983, First Amendment and Sunshine Act compliance, to name a few. She consults with educators on a daily basis on a variety of issues. Margaret is committed to creating a world where school leaders are spending as little time as possible thinking about legal concerns, so they can maximize their time and attention shaping young lives.