by Freddie Allen
NNPA Washington Correspondent
WASHINGTON (NNPA) – In nearly 4,500 minutes of arguments heard by the justices of the United States Supreme Court since October, one Black lawyer stood before them for less than 12 minutes. As the nation’s highest court becomes more diverse – with one Black and three women, including a Latina – the small pool of lawyers that they see tend to look alike.
The Associated Press reported that just one Black lawyer, Debo Adegbile, a former lawyer for the NAACP Legal Defense and Educational Fund, appeared before the United States Supreme Court during approximately 75 hours of oral arguments. Adegbile represented a small contingent of Black residents of Shelby County, Ala., a jurisdiction challenging section 5 of the Voting Rights Act, a key provision crafted to guard against discrimination at the polls.
The justices that serve on the Supreme Court are the most diverse in history, but from October to April, according to the Associated Press, most lawyers that appeared before them were White men.
The lack of diversity in the lawyer pool that argues cases at the Supreme Court reflects a larger issue of the lack of diversity in the pipeline that flows the nation’s top law firms, from the Office of the Solicitor General to the Supreme Court.
“You can say it’s a reflection or you can say it’s an indictment of the entire legal profession for not having the type of diversity that promotes African American lawyers to the top,” said Barbara Arnwine, president of the Lawyers’ Committee for Civil Rights Under Law, an organization that advocates for equality through the rule of law.
Minorities account for less than 7 percent of partners at law firms in the United States, according to a study by the National Association for Law Placement, Inc., a group that offers career counseling and professional development resources for law students and lawyers. Less than 5 percent of lawyers practicing in the United States are Black.
Many of the lawyers presenting cases at the Supreme Court, spring from the Office of the Solicitor General. That office decides the position the federal government will take in Supreme Court cases and is involved in roughly two-thirds of all the cases that make it to the nation’s highest court every year. Celebrated civil rights attorney Thurgood Marshall, the first Black to serve on the United States Supreme Court was also the first Black to serve as United States Solicitor General from 1965-1967 after President Lyndon B. Johnson appointed him to the post. Three out of the 46 Solicitor Generals in United States history have been Black. Only one woman, Supreme Court Justice Elena Kagan, has served as Solicitor General.
Justices often lauded Marshall’s ability to humanize legal arguments and share his unique perspective of discrimination and racism in America. The Lawyers’ Committee president said that lawyers that have lived with those issues and overcome those obstacles are able to speak to those issues in a way that benefits the court and lends passion to their arguments.
“You can’t just be a hired gun when it comes to cases involving racial justice in our society,” said Arnwine. “Hired guns don’t work. You need people that really believe in what they’re arguing.”
Historically, Black lawyers argued many of the cases involving racial justice and civil rights at the Supreme Court, but times have changed. Ted Shaw, a law professor at Columbia University, said that Black lawyers need to take a closer look at the civil rights cases that are making their way to the Supreme Court. For more than 20 years, Shaw served as one of the top lawyers for the NAACP Legal Defense and Educational Fund. He said that even though so-called reverse discrimination cases have recently dominated high-profile civil rights cases heard by the court, people of color still need to weigh-in.
In 2008, Abigail Noel Fisher, a White woman, filed a lawsuit against the University of Texas at Austin, after her application was rejected. Despite falling below academic requirements for in-state applicants, Fisher charged that she was denied entry into the university, because she was White. The Fisher case made it all the way to the Supreme Court in 2012.
“The people with the most at stake are people of color, it’s not the White plaintiffs. They don’t have the most at stake in these cases, because even if they win, it’s not clear that Fisher would’ve gotten into the University of Texas,” said Shaw. Fisher went on to Louisiana State University and works in finance back in her home state.
“It’s people of color that will be the most affected and they don’t have a voice in these cases and they don’t even have the possibility of an African American lawyer arguing before them. So that’s deeply troubling.”
The Fisher case was just the latest in a string of cases charging reverse discrimination.
Shaw helped to draft the affirmative action admissions policy at the University of Michigan law school that was upheld by the Supreme Court in Grutter v. Bollinger (2003). The points system for the undergraduate applicants used to promote diversity at the university was struck down by the Supreme Court that same year in Gratz v. Bollinger.
Both cases involved White women who charged that the affirmative action policies at the University of Michigan were unconstitutional, yet court watchers agree that the lasting implications of those cases affected similar policies at universities and Black applicants across the nation.
Shaw who represented a small group of Blacks and Latinos during the Gratz v. Bollinger case said that Black attorneys must reclaim their place in civil rights litigation even if on the surface, the cases look like they don’t involve Blacks.
“It really is an anomaly where Blacks folks have more at stake than anybody else, with all due respect ,including the White plaintiffs, that bring these ‘so-called reverse discrimination’ cases,” said Shaw. “In those cases, Black folks should be able to intervene and they should be allowed to argue at every level in those cases, including at the Supreme Court.”
Shaw added: “At the very least in cases in which the rights and interests of African Americans are at issue, I think it’s significant, in more than a symbolic way, to have African Americans appear before the Supreme Court. And if it means giving 15 minutes more argument time or 20 minutes more argument time, it ought to be done, but the court hasn’t been able to find its way to do that yet.”
Shaw said that Black lawyers should be afforded unique opportunities to argue civil rights cases at the Supreme Court and many Black lawyers are qualified to argue the more routine cases, as well.
“It’s even more important that we see African American and Latino lawyers in the Solicitor General’s office appearing in the Supreme Court getting that kind of experience.”
To get that kind of experience at the Supreme Court, Arnwine said that it’s going to take purposeful action.
“First, the [United States Solicitor General’s] office needs to be very deliberate when thinking about its own diversity and making sure that African Americans are thought to be a part of that office,” said Arnwine. “Secondly, the Supreme Court bar itself needs to be thinking about how they can mentor and help develop practitioners of color.”
Arnwine explained, “One thing about racial discrimination in America is that without purposeful and deliberate intervention nothing changes.”