WASHINGTON — Coming soon to the Supreme Court: a rare appearance by a black lawyer. More than a year has passed since a black lawyer in private practice stood at the lectern in the elegant courtroom and spoke the traditional opening line, “Mr. Chief Justice and may it please the court.”
Drew Days III, solicitor general in the Clinton administration, planned on Monday to argue a case on behalf of a shuttered brokerage firm that is seeking to recover $4.5 million in losses. Days, who splits his time between the Morrison & Foerster firm and Yale Law School, is one of the few black lawyers who regularly represent clients at the high court.
“Not many lawyers of color end up in the Supreme Court and most of those who do are in the area of civil rights litigation,” said Robert Harris, who argued once before the court in his career as a lawyer for Pacific Gas and Electric Co.
“We don’t have as many of those cases as we used to so clearly that opportunity is not there for many African-American lawyers,” said Harris, who is black.
Although the Supreme Court does not keep racial breakdowns of lawyers who argue before the justices, records indicate that the first black to appear before the justices was J. Alexander Chiles in 1910.
Long before he became a judge, Thurgood Marshall regularly argued civil rights cases at the Supreme Court in the 1940s and 1950s. Marshall was a rarity in those years of segregation, a black lawyer in an otherwise white world.
Under President Lyndon Johnson, he was the first black to be solicitor general, the Justice Department’s top Supreme Court lawyer. Since then, two other black men — Days and Wade McCree — have held that job.
Two black men, Marshall and Clarence Thomas, have been Supreme Court justices.
Several factors account for the dearth of minorities at the court: continuing problems in recruiting and retaining blacks and other minorities at the top law firms; the rise of a small group of lawyers who focus on Supreme Court cases; the decline in civil rights cases that make it to the high court; and the court’s dwindling caseload.
“It breaks my heart. It’s the minority pipeline, the dwindling caseload, all of these things,” Days told The Associated Press.
Days said he, too, has trouble attracting black lawyers to his firm. He recounted how he lost out to a philanthropic foundation over the services of a former clerk for a Supreme Court justice.
Two recent studies point up the trends. Of 46 Washington law offices with more than 100 attorneys, 28 reported that less than 3 percent of their partners are black. Seven firms had no black partners, according to a report by Building a Better Legal Profession, a group of law students who compiled data provided by the firms.
Morrison & Foerster’s Washington office, where Days works, has just two black partners, although that placed the firm fourth in the Washington rankings at 5.6 percent. Blacks are better represented among associates at these firms.
Two-thirds of minority lawyers leave their firms within the first four years of practice, generally too short a period in which to make partner, the American Bar Association has said.
Nationally, about 5 percent of law firm partners are black, a number that has crept higher over the past 30 years. Partners typically share in firms’ profits or losses, while associates are employees.
At the same time, a fairly small circle of lawyers controls more and more of the court’s caseload even as the number of cases the justices accept is going down, Georgetown University law professor Richard Lazarus argues in a study.
This “increasing domination is evidenced by the rising percentage of oral advocates appearing more than once within a single term, a feat most typically accomplished only by attorneys within the Solicitor General’s Office,” Lazarus said. The study will be published soon in the Georgetown University Law Journal.
A case in point is Carter Phillips, managing partner of the Sidley Austin firm’s Washington office. Phillips has argued 54 cases at the court in his career, more than all but three lawyers who continue to practice. Next month he will argue two cases in one week.
With his 24th oral argument approaching, Days seems to be the only active black lawyer with a high number of cases before the Supreme Court, Lazarus said.
The rise of an elite corps of Supreme Court lawyers rankles others in the profession who say the court regulars solicit their clients once the justices decide to hear a case.
“It perpetuates a little club and denies a lot of lawyers the opportunity to present their case, and it is their case, to the highest court in the land,” said Gary LaFayette, a black lawyer from San Francisco who won his only argument in 2002 on behalf of the Oakland Housing Authority.
Harris, who recently retired as a PG&E vice president, said his moment of glory at the court was “highly unusual and not likely to be repeated.” He won the case in which the utility argued that it should not be forced to allow consumer groups to put messages in monthly billing envelopes.
Even more than 20 years ago, he said, “You can imagine that it was not a foregone conclusion that I, a young African-American lawyer, would argue the case.”