The latest "equity" cause -- a Supreme Court bar that looks like the Court

But there's an elephant in the room

The Washington Post bemoans the fact that, even as the Supreme Court has become “diverse,” “the elite group of lawyers who argue before [it] remains mostly White and male.”

Black and Hispanic attorneys are starkly underrepresented among Supreme Court litigators, according to a Washington Post analysis of lawyers who have delivered oral arguments in recent years. . . .

The Post ascertained the gender identities of all 374 lawyers who have argued before the high court since the start of the 2017 term and the race of more than 80 percent of them.

Of those, nearly 81 percent are White, and 62 percent are White men. Nearly 9 percent are Asian American. While 19 percent of Americans and nearly 6 percent of lawyers in the United States are Hispanic, according to the American Bar Association, only 3.6 percent of the Supreme Court attorneys in the Post analysis were Hispanic. And while almost 14 percent of Americans and 4.5 percent of lawyers nationally are Black, only 2.3 percent of the lawyers in the Post analysis were Black.

Hispanic and Black lawyers were even more underrepresented when measured by the number of arguments they made. Hispanic lawyers have made 2.3 percent of Supreme Court arguments since the 2017 term, and Black lawyers made only 1 percent.

Why the disparities? The answer — a race-neutral one that the Post identifies — is that clients with a case before the Supreme Court often insist that their matter be handled by the lawyer at the firm representing them who has argued the most cases there. That’s usually a white attorney.

But why is the most experienced Supreme Court litigator at a firm usually white? The answer, according to the Post, is that “the people who secure the opportunities that prepare lawyers who argue frequently before the court — clerking for Supreme Court justices, working in the U.S. solicitor general’s office and serving as a state’s solicitor general — are disproportionately white.”

But why is that? The Post doesn’t answer this question and, knowing the Post, it’s easy to understand why. The answer is the less-than-stellar performance of blacks, as a group, in law school.

Performance in law school is a huge factor in the selection of Supreme Court clerks, as well as clerks for U.S. courts of appeals. The same is true when it comes to selecting lawyers to work in the SG’s office which, says the Post, tends to hire former Supreme Court clerks or at least former clerks on U.S. courts of appeals.

If blacks as a group aren’t performing nearly as well as whites and Asian-Americans in law school, it stands to reason that blacks won’t get Supreme Court clerkships and SG experience to nearly the same degree as whites and Asian Americans. Nor will they get to argue before the Supreme Court nearly as often.

So we come to the key question: Are blacks as a group performing significantly worse in law school than whites and Asian-Americans?

Law schools do everything in their power to block an informed answer to this question. They guard the data with which to answer it like state secrets. Anyone at a law school who discusses candidly how blacks are performing is in for a very hard time (see below).

Nonetheless, word occasionally leaks out. Professor Amy Wax at the University of Pennsylvania Law School spilled the beans back in 2018. She said, “I don’t think I’ve ever seen a black student graduate in the top quarter of the class, and rarely, rarely, in the top half.” Then, speaking of her own classes, she added, “I can think of one or two [black] students who scored in the top half of my required first-year course.”

(Finishing in the top half, or even the top quarter, of the University’s law school class would almost certainly be insufficient, absent a racial-preference, to land someone a Supreme Court clerkship or a job in the SG’s office. Ordinarily, a law student would have to do much better than that.)

The University of Pennsylvania retaliated against Professor Wax for her comment.

Here’s another example. In 2021, an adjunct professor at Georgetown Law School was heard telling another professor in a private conversation that she experiences “angst” because a lot of her poorest performing students are black. She was fired for saying this. The professor to whom she said it was placed on administrative leave for not pushing back. He resigned soon thereafter.

Neither Penn nor Georgetown released data refuting the remarks in question. I should add that the essence of the remarks is consistent with what I saw reviewing applicants for clerkships at the law firm I worked at, as a member of its recruiting committee.

We shouldn’t be surprised that blacks underperform at top law schools. Many of them are admitted with credentials — grades and LSAT scores — significantly worse than those of their white and Asian-American classmates. It’s unrealistic to expect that, as a group, students who are mismatched with their school to this degree will get anywhere near the top quarter of their class.

Mediocre black law students probably don’t face a reckoning in the job market as a whole. Corporate America and big law firms (here I speak from experience) are far from averse to granting the same kind of race-based preferences to blacks that law schools do.

But high-level federal judges and the SG’s office aren’t likely to be as forgiving. And even if they are, clients with cases before the Supreme Court aren’t going to follow suit. They will be looking for a track record of success in that setting.

That’s how it is, and how it’s likely to remain. The war on standards is powerful, but not all-conquering.