The Supreme Court adjourned on June 27, but it still drives the day in Washington as the Justice Department works to find a way around the court's census decision. Meanwhile, here are some data points to ponder about the diversity of the advocates who argued before the court last term, as well as some info about law clerk diversity. Plus, a look at a new campaign to end life tenure for justices, and the legal scholars who have joined it. And we know now when the DACA case will be argued—but who will get the call? Feedback and tips are welcome: Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!

Diversity Data About Supreme Court Advocates and Clerks Last Term

The signs of greater participation by women in all things SCOTUS were visible in the term just ended.

The newest podcast about the court, called Strict Scrutiny, features four women and no men: Leah Litman, Melissa Murray, Jaime Santos, and Kate Shaw.

An exhibit at the court titled “In Re Lady Lawyers: The Rise of Women Attorneys and the Supreme Court” showcases memorabilia from the four female justices and from women who argued before the court in decades past.

And for the first time in court history, more females than males—21 to 20—served as law clerks. All of Justice Brett Kavanaugh's clerks were females, another first. Justice Elena Kagan, pressed about racial and ethnic law clerk diversity at a congressional hearing in March, said “I think we're doing better,” and the issue is being taken “very seriously by the court as a whole.”

But in many ways the progress is still sluggish, and big law firms that tout diversity are still fielding mainly men to argue before the high court. And diversity among law clerks is still a struggle.

In a Twitter exchange July 3, Litman, a law professor at the University of Michigan, wrote: “Podcasting and commenting on the Supreme Court: That's what women do.” To which Sarah Harrington of Goldstein & Russell replied, “Also arguing at the Supreme Court: that's what women do. But not nearly often enough. Clients, members of the Bar, it's time to pitch in to help change the imbalance.”

Some data points:

—Of the 185 appearances made by lawyers at oral argument this past term, only 32 were by females, or roughly 17 percent. That's better than recent years, but not by much.

—Of the 32 appearances by females (some argued twice) only 10 appearances were made by female lawyers in private practice. The rest were from the U.S. solicitor general's office, state and federal lawyers, or academics. Only six of the 10 female appearances were from big law firms with significant Supreme Court practices.

—None of the private law firms fielded more than one female for Supreme Court arguments. (With some firms, the same goes for males.) Lisa Blatt of Williams & Connolly, formerly at Arnold & Porter, argued twice, as did Theresa Sachs of Marshall Dennehey Warner Coleman & Goggin. Sachs argued twice because the court ordered reargument in her case.

—On 15 of the court's 39 argument days, no women argued at all. And only one case last term was argued solely by women.

As for law clerk diversity: —Seventy-eight percent of last term's law clerks were white, compared to 87 percent white in the last decade, according to The National Law Journal's survey of diversity among Supreme Court clerks. Seven per cent of the clerks were black or African American, seven percent Asian-American, and five percent Hispanic. One clerk, Tobi Young, is Native American, possibly the first enrolled Native American clerk in history. —Tony Mauro

A Campaign for Term Limits

The 2020 presidential candidates are not the only ones talking about ways to “change” the Supreme Court. More than 60 legal scholars, in a letter Monday to House and Senate Judiciary committee leaders and the presidential candidates, are urging an end to life tenure for the justices. The letter marks the start of a campaign for term limits launched by Fix the Court, a nonpartisan organization advocating greater openness and accountability by the Supreme Court and federal courts.

“With life tenure, each nomination is cast in apocalyptic terms, as neither party knows when its presidents will have another opportunity to make an appointment,” wrote the letter signers. “There is no easy way to move us out of this dynamic, but it has become clear to us that a strong step in the right direction would be to revisit life tenure at the Supreme Court.”

The letter signers—from law schools across the country—include Harvard's Lawrence Lessig, Laurence Tribe and Mark Tushnet; Yale's Bruce Ackermanand Samuel Moyn; UCLA's Adam Winkler; University of California Berkeley's Erwin Chemerinsky; University of Miami's Mary Anne Franks; University of Chicago's Brian Leiter; University of Texas's Sandford Levinson; Emory's Mary Dudziak, and Rutgers's Ellen Goodman.

The law professors write that they are not endorsing any particular plan “so long as terms are sufficiently long to maintain judicial independence.” —Marcia Coyle

DACA Case Set for Nov. 12 Arguments

The justices' final orders list before their summer break put an end to the mystery of what they planned to do with three petitions in which the Trump administration defends its effort to wind down the Deferred Action for Childhood Arrivals, or DACA, program. The petitions, granted and consolidated under Department of Homeland Security v. Regents, University of California, had been pending since December.

The government asks the high court whether the wind-down decision is judicially reviewable and whether the wind-down policy is legal. In all three cases, U.S. Solicitor General Noel Francisco sought cert before judgment in the U.S. Courts of Appeals for the Ninth, Second, and D.C. circuits.

The next big mystery may be who will argue against the government. There are quite a few skilled Supreme Court advocates involved in the various cases.

On the lead petition, Covington & Burling partner Robert Long represents the regents; California Deputy Solicitor General Michael Mongan is counsel to the state respondents, and Gibson, Dunn & Crutcher partner Theodore Boutrous represents the Dulce Garcia group.

In Trump v. NAACP, Jenner & Block partner Lindsay Harrison represents the respondents. And in McAleenan v. Vidal, Michael Wishnie of the Jerome N. Frank Legal Service Program is counsel to the Vidal group, while New York Solicitor General Barbara Underwood represents the state respondents. —Marcia Coyle

What We're Reading: SCOTUS Headlines

>> Justice Kennedy's Secret Meeting With Trump. “A new book by the Judicial Crisis Network's Carrie Severino and The Federalist's Mollie Hemingway has some colorful, behind-the-scenes details about the secret White House meeting where former Justice Anthony Kennedy told President Trump he was planning to retire.” And more: “Assistant Attorney General Steve Engel, who had previously clerked for Kennedy, met with the justice at an outdoor café near the National Gallery of Art's Sculpture Garden two days before the Supreme Court broke for summer recess.” [Axios] More here at Daily Caller: Trump Campaign Consulted Justice Kennedy About Supreme Court Picks, Book Reveals

>> The Courts Still Don't Understand Trump's Twitter Feed. “It's gratifying when the courts stand up to President Donald Trump's abuses of executive power. But the federal appeals court that held Tuesday that Trump can't block users from his personal Twitter account doesn't fit into that paradigm. Although its decision will be hailed by some as a win for free expression, it's actually based on a misconception about our social media accounts—one the U.S. Supreme Court is going to have to fix,” Noah Feldman argues. [Bloomberg] Read the Second Circuit's decision here.

>> How John Roberts Controls the Supreme Court. “The census case itself could return soon to test Roberts, the nation's 17th chief justice and the first in more than 75 years to sit at the helm and also at the middle of the ideological spectrum.” [CNN]

>> She Urged Her Boyfriend to Die. Now She's Asking the Supreme Court to Call It Free Speech. “Calling her conviction 'unprecedented,' the petition points to decisions in other states invalidating findings of culpability in cases of assisted suicide and cyberstalking. It claims that Carter's right to free speech under the First Amendment shields her from criminal responsibility because her involvement was limited to 'words alone.'” [The Washington Post] Read the petition filed by Daniel Marx of Boston's Fick & Marx.

>> Entire Federal Circuit Pleads With Supreme Court, Congress on Diagnostics Patents. Unanimity is rare at the famously factious U.S. Court of Appeals for the Federal Circuit. But all 12 active judges found something they could agree on: The Supreme Court is flat-out wrong when it comes to patent eligibility and medical diagnostics., our colleague Scott Graham writes. [NLJ]

A note to our readers: Tony Mauro, who has retired from daily journalism after nearly forty years of covering the Supreme Court, will continue to contribute to the Supreme Court Brief and other ALM publications.