The SCOTUS Woman Problem

Why aren’t there more women arguing at the Supreme Court? Yes, genitalia counting has reached SCOTUS, with an analysis by Adam Feldman.

On a per-attorney basis, women were more successful than men in the following categories: all attorneys on the merits, non-governmental attorneys on the merits, and amicus win rates.

If it were that simple, and if correlation proved causation, it would certainly seem that a female attorney at oral argument would improve a party’s chances of winning.* And yet, women lawyers comprise a disproportionately low 17.79%.

These data reflect the disparity in female attorneys’ opportunities before the Supreme Court. They also show that most rational explanation for this disparity, that men outperform women, does not hold. Another explanation may have to do with lack of interest, although statistics on women joining the bar discredit this claim as well. Additional fine-grained analyses could help inform our understanding of the male to female oral argument disparity. The message, however, is clear: namely that no reasonable statistical explanation can account for the difference in participation between male and female attorneys before the United States Supreme Court.

While there are other, non-gender-related, explanations, both as to the percentage of women and outcomes, those aren’t worthy of consideration as they conflict with the inherent belief that equality must be proved by the numbers.

In light of Feldman’s finding. former Acting Solicitor General, Neal Katyal, took to the twitters.

How, exactly, “all of us” have anything to say about who gets retained to argue cases before the Supreme Court is a bit fuzzy. Why these numbers are “100% unacceptable” is similarly unclear, although understandable as a tenet of orthodoxy. But why someone as smart as Katyal would offer such an absurdly shallow plea finds no rational explanation.

So Alan Gura, who has had significant success before SCOTUS, took the inane twit to task.

There are at least two ways to take this message. The first is to mock Katyal’s simplistic genitalia counting, raising yet another of the progressive sacred-cow identities, also “under-represented” if one is to buy into the silliness that lawyers arguing before the Supreme Court should, if social justice is to be believed, match every marginalized demographic, in tandem with the “gender is just a social construct” belief where anybody can be anything. If one is going to promote their religious beliefs, then they are not immune from their beliefs being challenged.

Or one could take Gura’s mention of “transgender,” used as a totally unapproved noun rather than adjective, as a slur. Naturally, this is how how the unduly passionate took it.

Let’s have a discussion, provided you only use words that carry the social justice seal of approval? Are there “better ways to disagree”? It’s irrelevant. Aside from the fact that Gura’s twit wasn’t about transgender people at all, but ridiculing the inane social justice orthodoxy reflected in Katyal’s twit, there is the effort by progressive scolds to attack politically-incorrect language and pressure lawyers to confess their heresy and self-censor. Let no word appear that offends the White Knights of social justice.

Even the kids at ATL got into the fight, with this eminently clickbaitable yet erudite headline.

And they can’t understand why people won’t bend to their will.

Some guys just don’t get it. They don’t want to — the system has been working just fine for them, thank you very much, and any attempt to recognize systemic inequality is seen as a direct affront to them personally. It isn’t, but some snowflakes just can’t help themselves.

Why is this literally horrifying?

Um, the fuck?

Probably the most comprehensible sentence Kathryn Rubino has written.

You should really check out the full thread, but Gura gets all mock offended that his comment could be compared to blackface, but it still uses the trappings of a marginalized identity to garner some sort of an advantage. It’s super offensive actually. But if he doesn’t mock people for whom he has an artificial sense of superiority, how will the world know how clever he is? (Spoiler alert: he isn’t.)

And, of course Gura doesn’t think it is a problem that women account for a pittance of Supreme Court arguments. Did you expect anything different?

Unlike some people, who have made a choice to suffer the slings and arrows of the outraged children rather than acquiesce to the language of social justice so that the unduly passionate don’t lose their heads, Alan tried to explain that his twit had nothing to do with any animus toward transgender people, to no avail. There was the absolute certainty that this “snowflake” (?), being a white cis-gendered male, couldn’t possibly be anything other than evil, and his refusal to repent and confess his sins against social justice meant he had to be a hater.

Of course, there was similarly no capacity on the part of the unduly passionate to grasp that Katyal’s pandering to the fools was, as Alan asserted, absurd. As another member of the twitter tone police told Alan,

That folks on left & right can’t agree that this sort of behavior/joking about our trans brothers & sisters is not acceptable makes me sad.

While making an SJW sad isn’t exactly the metric for social justice censorship on the internet, this captures the pointlessness of having the “discussion” that Alan, being a good-willed sort of guy, tried to have after the gnats lost their shit on him. Folks on the left & right (and the middle, an omission that never dawns on the unduly passionate) could have a great discussion, as long as it adheres to the requisite social justice orthodoxy. This, too, they just can’t grasp as they wander the internets in search of words that offend them.

Is it possible, even likely, that the dearth of women arguing at the Supreme Court is, at least in part, the product of sexism? Of course it is. Spewing nonsense on the internet is no more likely to solve the problem than it is to get people to cease their heretical use of words that make social justice warriors sad.

*While this shouldn’t need to be said in a modestly rational world, the choice of lawyer who appears before the Supreme Court should be based on skill, not genitalia. Not because the lawyer has a penis. Not despite it. Just merit. If that means 100% of the lawyers arguing before SCOTUS turn out to be female, so be it.

7 thoughts on “The SCOTUS Woman Problem

  1. B. McLeod

    Seems to me that Gura’s suggestion was very sound, and would, in fact, address two statistical disparities at once. Were Katyal a true “progressive” (instead of the transphobic hater he has now revealed himself to be) he would have no objection to taking this obviously necessary step. Particularly that this will be entirely within his control in matters where clients have retained him, while making the clients retain a biological woman is not. History favors the intrepid!

  2. Richard Kopf


    Trying to use statistics to interpret a vanishingly small data set is idiotic. This study is no more complex than four function math. Notice, for example, that the differences regarding female/male success at the Supreme over the five year period is .59 for females and .51 males. By any valid statistical test, and for a variety of reasons, that is no meaningful difference.

    All the best.


    1. SHG Post author

      The flaws in the analysis were manifest. Add to the win ratio the fact that most women arguing before the Court worked for the government, and the statistical significance and standard dev run strongly against success. But that just scratches the surface of the absurdities.

  3. Dan

    If the statistics showed what the woke claim they showed (i.e., that female lawyers are more successful in court than male lawyers), then a litigant with a case at the Supreme Court would be a fool to have it argued by a male lawyer. And if the wage gap figures were right, that women get paid less for doing the same work, an employer would be a fool to hire men. But strangely, male lawyers keep getting chosen to argue in court, and male workers keep getting hired. Odd, isn’t it?

    1. Jason K.

      But see, that is just proof as to how rampant sexism is! Any other sane explanation would require some material differences in gender and that just makes you another disgusting sexist. So either those people over there are sexist or you are. You aren’t an evil, patriarchy-loving sexist, are you?

    2. Maketh the Man

      with respect, your take is flawed. If all winning lawyers wear suits, but all lawyers dressed as dead presidents lose, then eventually this discrimination must be addressed, and the rational course of action is to wear fancy dress and complain loudly about the systemic injustice. Pity the lawyers paying lip service to being zealous, whilst being too timid to dress as the Marshmallow Man for the good of their client.

      I seem to recall at least one brave federal judge advocating for a beclowned judiciary, so there is still some hope.

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