American Lawyer’s Tony Mauro sought the insights of top SCOTUS practitioners, including Orrick’s Josh Rosenkranz, to understand why there are so few female advocates before the Supreme Court. The question follows a study by Empirical SCOTUS, which shows that just under 18 percent of the advocates before the Supreme Court from 2012-2017 were women, despite the fact that women have a stronger win record than men.
“The reason there is a dearth is that so many top Supreme Court practitioners are playing a volume game. They accept every argument opportunity that comes their way in the lower appellate courts, which deprives more junior lawyers of the notches they need to present themselves as viable candidates for a Supreme Court argument. And then they rack up Supreme Court arguments like Christmas tree ornaments, refusing to steer them—even the pro bono cases—to colleagues who do have significant notches in their belts.
I’ve vowed to my partners that I will not argue more than 10 cases a year, which means steering a significant number of argument opportunities to other colleagues who are building their practices. … I will work to credentialize those colleagues and resist pressures to take the lead, even if the client says that we are bidding against an appellate titan. This actually serves my business model well. If I argued 15 or 20 cases a year, I simply could not dig in to any of them or own the briefs the way I feel comfortable doing.
Second, I am also striving to limit my Supreme Court arguments to two cases a term. When we take pro bono cases at the cert. level, I almost always condition it on an ‘Orrick lawyer’ arguing the case rather than committing that I will argue the case. And then I work to make sure the clients spend time with other colleagues and get comfortable with them taking the lead.”
In addition to Josh, ALM talked with Lisa Blatt of Arnold & Porter Kaye Scholer; Ilana Eisenstein, former assistant solicitor general, of DLA Piper; D.C. Circuit Judge Patricia Millett, also a former assistant solicitor general; and Neal Katyal of Hogan Lovells and former acting solicitor general.