A little less than three years ago, following the in depth look that Adam Feldman took at how infrequently women were getting the chance to argue at the Supreme Court, I took a look at how they were faring at the New York Court of Appeals. Examining the data from the 2016 arguments before the Court, I found that women argued approximately 37% of the time in all of the Court’s argued cases (136 arguments by women attorneys out of 372 opportunities total).
That’s a pretty good rate compared to women’s opportunities to argue at the Supreme Court from 2012 to 2016, which according to Adam’s piece, amounted to 17% to 18% of the total arguments. But, the total 2016 argument rate of 37% at the New York Court of Appeals masked an underlying divide between criminal cases where women argued nearly half of the time (89 of 188 criminal arguments, for 47%), and civil cases where women argued only 26% of the time (47 out of 184 civil arguments).
Is 2016 truly representative of the chances that women get to argue at the New York Court of Appeals, though? That’s the question that has nagged at me since I first put together the 2016 data. So I dug a little deeper to find out. I looked at the argument data from 2012 and then from 2019 to see if things were materially different. They were, and not in a good way.
2012 Argument Data Shows a Lower Rate of Women Arguments
If 2016 seemed to provide better opportunities for women to argue at the Court of Appeals than at the Supreme Court, 2012 was worse than 2016. During the 2012 calendar year, there were a total of 420 arguments before the Court of Appeals, but only 120 went to women. That’s 29%. There were only 18 cases where women argued on both sides, while their male counterparts did so 98 times. And like in 2016, 2012 also had a big disparity between criminal arguments and civil arguments. Women argued at the Court of Appeals 43% of the time in criminal cases (72 out of 167 available criminal arguments), but only 19% of the time in civil cases (48 out of 253 available civil arguments).
2019 Argument Data Shows Women Arguing at a Similar Rate to 2012, But With Far Fewer Total Arguments
In 2019, the Court of Appeals heard 168 total arguments, 50 of which were women. That’s a total rate of 30%. Again, cases argued by men on both sides far outpaced cases argued by women on both sides (43 to 10). And the criminal to civil argument divide was still present. Women argued in 44% of criminal cases (31 criminal arguments out of 71 total), but only 20% of civil cases (19 civil arguments out of 97 total).
The 2012, 2016, and 2019 Argument Data Compared Shows a Significant Issue with the Court of Appeals Taking Fewer Cases
Although the rate of women arguing at the Court of Appeals in 2019 (30%) stayed pretty much the same as in 2012 (29%) and is close to the higher rate of 37% in 2016, the larger issue is that the Court is taking fewer cases and hearing fewer arguments now, which means that there are far fewer arguments that women and other underrepresented groups of advocates could take in the first place.
In 2019, the Court of Appeals only had 168 total available argument spots. That’s down 60% from the 420 total available arguments in 2012, and also way down from the 372 total available arguments in 2016. That’s a huge issue. As can been seen in the table, the total arguments that went to women have declined over the years, from 120 in 2012 to 50 in 2019.
So, although the 32% of arguments being made by women over the three years I looked at is better than has been seen at the Supreme Court, the declining total number of arguments is a large barrier to getting more arguments for women and other underrepresented groups in the legal profession. That’s especially so in civil cases, where the total rate of women arguments before the Court of Appeals over those three years is only a meager 21% (114 civil arguments by women out of 534 total), and there were only 97 total available civil arguments in 2019, down from 253 in 2012 and 184 in 2016.
Beyond the Court of Appeals granting leave to appeal in more cases (which I’m in favor of), I think it would go a long way for Chief Judge DiFiore and the Court to adopt a policy encouraging arguments by women and other underrepresented advocates in the State’s highest court. Policies like this, which have been adopted by many Judges throughout the state and in the federal courts, can go a long way to set the tone for the legal profession. I think it’s time for the Court of Appeals, on which sits a majority of distinguished women Judges, to lead by example.