When Christina Swarns steps up to the podium on Wednesday for oral arguments in Buck v. Davis, her appearance will represent a rare event: an African-American woman arguing a Supreme Court case.
Swarns, the 48-year-old litigation director for the NAACP Legal Defense Fund, will be defending Duane Buck, a Texas death row inmate whose trial was irreparably tainted by racially discriminatory expert testimony that effectively sealed his fate on death row. The case comes at a time when the nation is having a conversation about racial bias in the criminal justice system. But even as the case raises troubling questions about fairness in the courts, Swarns’ appearance as one of the very few black women ever to argue a Supreme Court case is another reminder of why such problems may persist. African-Americans are still far more overrepresented as defendants in the system than as judges or lawyers, a fact that’s especially true at the Supreme Court.
The lawyers who make up Supreme Court bar are largely white and male—less diverse, even, than the court they practice in front of. Not only are they overwhelmingly white men, they are the same white men. A 2014 Reuters investigation found that between 2004 and 2014, 20 percent of the cases that came before the court were argued by the same eight guys.
By comparison, the number of African-American female lawyers who’ve ever made a Supreme Court oral argument is shockingly small—almost small enough to count on two hands. The most famous of them have hailed from Swarns’ organization, which was founded by former Supreme Court Justice Thurgood Marshall. The NAACP Legal Defense Fund’s former counsel, Constance Baker Motley, argued 10 Supreme Court cases while at LDF between 1961 and 1964, winning nine of them, including the case that allowed James Meredith to enter the University of Mississippi as its first black student. And there was Elaine Jones, another longtime LDF litigation director who argued before the court and is best known as counsel of record in Furman v. Georgia, the case that briefly abolished the death penalty in 1972.*
But more recently, black women lawyers have been in short supply at the court. There is no reliable data on the number of African-American women who’ve argued Supreme Court cases. But after canvassing lawyers who work in Supreme Court advocacy, legal organizations, and the Supreme Court itself, Mother Jones identified fewer than half a dozen black women who’ve argued cases there since 1999. The last time anyone from LDF can remember a black woman arguing before the high court was three years ago, when Shanta Driver argued to preserve affirmative action in admissions at public universities in Schuette v. Coalition to Defend Affirmative Action.
For a few years, Leondra Kruger helped diversify the Supreme Court bar when she was working for the US Solicitor General’s office, where she argued 12 Supreme Court cases between 2007 and 2013. But in 2014, California Governor Jerry Brown (D) appointed her to the California Supreme Court, and no black woman seems to have argued a case before the high court since.
Why are there so few women of color appearing before the court? To start with, there aren’t very many women period arguing before the court. In the last term, women argued less than a quarter of the court’s cases, according to numbers crunched by Tony Mauro at the National Law Journal. Black female lawyers generally struggle even more to break through to the higher levels of the law. Fewer than 1 percent of big law firm partners are black women, for instance.
University of Cincinnati law school professor Verna Williams is one of the members of the small club of black women who’ve argued before the nation’s highest court. She says black women are still dogged by stereotypes that hurt all black lawyers—including the belief that they can’t write well. Such stereotypes, she suspects, hinder people of color from practicing appellate law, the stepping stone to the Supreme Court.
Perhaps even more problematic is a phenomenon most women will recognize: Bigfooting by men. The Supreme Court bar has become increasingly dominated by repeat players—mostly men. And the business is cutthroat: More than 500 DC attorneys claim to have a Supreme Court practice and the court only takes about 70 cases a year, meaning these lawyers are all fighting over a very small book of business.
When a lawyer represents a client who makes it to the Supreme Court, Williams says, “That’s when people kind of swoop in on you. They want to take your case.” Those attorneys, usually men from elite law firms, pressure less experienced lawyers to let a “seasoned Supreme Court litigator” take important cases for the best interest of the client, Williams explains. “In the face of people who really, really want your argument, I can understand why somebody might bend under that pressure. That scenario happens a lot,” she says with a laugh.
As repeat players have come to dominate the Supreme Court bar, it appears even harder for women and people of color to break in, particularly from the private sector. The last court term to see a black women argue before the court was also notable for having only one black man argue a case, for a mere 11 minutes. Most lawyers of color coming before the court tend to work for the government, such as Lisa Freeland, the federal public defender for the western district of Pennsylvania, an African-American woman who argued a Supreme Court case in 2010.
This makes Swarns’ Supreme Court debut as both a minority and non-governmental lawyer even more unusual and perhaps more fitting given the case she’s arguing. Buck’s case isn’t one of those involving compelling innocence claims or mental competence—the more sympathetic death penalty cases to come before the courts in recent years. Instead, it is primarily about the integrity of the legal system, how much racial bias and discrimination it will tolerate, and whether African-American defendants can ever get a fair trial in a system where jurors, lawyers, and judges are overwhelmingly white.
In 1996, Houston prosecutors charged Buck with capital murder after he killed two people and wounded his sister in a shooting. There’s never been any doubt about his guilt. Even so, he was represented by an extraordinarily ineffective lawyer, who retired this August after losing every one of the 36 death penalty trials he handled in the course of his career. Buck’s crime was horrific, but not actually worse than many others in Texas that didn’t result in the death penalty. But a Texas jury sentenced him to death after his own lawyer introduced an expert witness who testified that Buck was more likely to commit violent crimes in the future because he was black. Future dangerousness was a factor the jury had to consider in issuing a death sentence. The expert had written a report for Buck’s lawyer before the trial that included the inflammatory comments, but for inexplicable reasons, the lawyer still insisted on putting the man on the stand, where prosecutors were able to solicit even more damning testimony from him.
Texas has conceded that such racially charged testimony is unconstitutional. In fact, the expert in Buck’s case, Dr. Walter Quijano, had given similar testimony before. In 2000, the Supreme Court vacated a death sentence in another case in which Quijano had testified. In response to that Supreme Court action, then-Texas attorney general John Cornyn conducted an audit and turned up six more cases, including Buck’s, that had been tainted by Quijano’s racially discriminatory testimony. Cornyn took the unusual step of admitting the error and promising new, fair sentencing proceedings to those defendants. Six of them did receive new sentencing hearings. But before Buck could be resentenced, Cornyn was elected to the US Senate in 2002, and subsequent Texas prosecutors refused to follow through on his commitment.
Since then, the state has continued to press for Buck’s execution. It’s up to Swarns to persuade the high court that Buck’s case presents extraordinary enough circumstances to justify reopening his sentencing. Williams is rooting for her. “I wish her all the best. I have no doubt that she’s going to be exceptionally well prepared.”
Correction: An earlier version of this article misidentified Elaine Jones as having argued Furman v Georgia before the Supreme Court. She was counsel of record on the litigation but did not argue the case.