Small Law Firms, Solo Practitioners

Diversity On The Supreme Court Means More Solos

It's time to expand the diversity of work experiences on the Supreme Court.

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Supreme Court SCOTUS photo by David LatU.S. Supreme Court Justice Sonya Sotomayor  has always endorsed the notion of a diverse high court. Back in 2001, while still an appellate judge, Sotomayor gave a speech at the University of California, Berkeley, sharing her view that “our gender and national origins may and will make a difference in our judging,” and famously asserting that:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Fast forward to 2017, and Justice Sotomayor continues to advocate for diversity on the High Court. But this time, Sotomayor focuses on that other ”Forgotten Man”: the solo practitioner. In a recent speech at Arizona State University, Sotomayor criticized the judicial confirmation process as broken, observing that:

Most of the practice of law in this country is done by solo lawyers or small firms,” she said, but only two justices have experience with that type of law, and none is experienced in environmental or education law. That’s the diversity that concerns me the most.

It’s not surprising that Justice Sotomayor has a soft spot for solos. After all, she was one herself back in the day — even though she kind of tried to hide it by practicing under the firm name of Sotomayor and Associates — when she didn’t have any. But Sotomayor’s view of the importance of widening the pool of lawyers from which Supreme Court justices are drawn is consistent with her belief that judging is necessarily informed by our personal experience — which isn’t limited to race, gender, or national origin, but also includes our work.

For example, because many solo and small firm lawyers operate on constrained budgets, they “get” that sometimes (but not always), a particular issue might not have been properly preserved or extensively briefed not because the lawyer was incompetent but because the client lacked the money to pay. Thus, in these cases, a judge who previously practiced as a solo might be more inclined (assuming that he has the discretion to do so) to cut the lawyer some slack and entertain the arguments instead of dismissing them on procedural grounds. Likewise, because solo and small firm lawyers are more likely to represent clients from all walks of life, they quickly develop a fairly accurate barometer for distinguishing those who are credible from those who are not. Finally, putting more solos and smalls on the Supreme Court would go a long way to making the court more accessible to a wider range of litigants by televising oral arguments or eliminating many of the onerous and unnecessary procedural rules governing briefs that can significantly increase the cost of bringing a case.

Putting a solo or small firm lawyer on the court isn’t likely to happen soon. President Trump’s top contenders share an unbearable sameness of being: most are Ivy League grads and former judicial clerks who then went on to government service or Biglaw. Sure, they may have started out from different economic backgrounds, but there’s something about Harvard Law or the Attorney General’s office that can conform even the quirkiest into gray-suited Borg — resistance is futile.

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On the other hand, you can’t blame a President — even Trump — for playing it safe with his nominations. (Obama tried to do the same when he nominated Merrick Garland ). Just like no one ever gets fired for hiring IBM, no one ever gets criticized for nominating a Biglaw, Ivy League lawyer to the High Court.

And if they do… well, recall what happened back in 1986 when Ronald Reagan nominated then –unknown, small town lawyer Daniel Manion to the Seventh Circuit. Thirty nasty law school deans sent a letter to the Senate urging rejection of Manion because he failed to meet the criteria for “scholarship, legal acumen, professional achievement, wisdom, fidelity to the law and commitment to our Constitution.” Meanwhile, others pettily criticized Manion’s court briefs for grammatical and typographical errors. Manion admitted that his briefs were written in a hurry and typed quickly by someone else, noting that in a small practice, “your client can’t afford to have three people… edit something.”

And that is just one of the many reasons why we’re not likely to see solos sitting on the Supreme Court any time soon.

Carolyn ElefantCarolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.

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