SCOTUS Remands In Birth Control Mandate Cases

In a sure sign the Court was split 4-4 on the validity of the ObamaCare birth control mandate under RFRA, the Court today issued a per curiam order in Zubik v. Burwell remanding the consolidated cases to the circuit courts for reconsideration in light of the parties' supplemental briefs addressing "whether contraceptive coverage could be provided to petitioners' employees, through petitioners’ insurance companies, without any such notice from petitioners." The dispute in the case surrounds the private, religious employers' objection the birth control mandate's so-called "accommodation" that allows such employers to decline to pay for the objectionable insurance coverage but that allows their employees to nonetheless receive the coverage through the employers' health plans.

The Court's order provides: "the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans 'receive full and equal health coverage, including contraceptive coverage.'" Order at 4.

According to the order, a remand in these circumstances is not unusual. The order lists three recent cases in which the Court "has
taken similar action." Id.

The remand buys a divided Court time for the appointment of a ninth Justice who no doubt will be critical to the resolution of the cases. The circuits were originally split 5-1 on the issue presented in the cases, and some form of circuit split is likely to persist after the remand unless the parties reach agreement on an accommodation.

Clement Declines To Fix Factual Misstatements In Deflategate Appeal

It was a dark day for me when I learned that Paul Clement would be representing the NFL in its appeal of Judge Berman's Deflategate ruling, which overturned the league's disciplinary action against Tom Brady for alleged cheating in the 2014 playoffs. The appeal would feature two of my personal heroes--Clement and Brady--going at it in a fight that could determine the fate of the Patriots 2016 season. (In short, critically important stuff.)

The Second Circuit recently heard argument in the case, during which Clement made assertions that many pundits thought misrepresented the facts. Today, Clement declined to correct those misstatements. Here's the skinny:

In Tom Brady's initial appeal to NFL Commissioner Roger Goodell following the imposition of, among other things, a 4-game suspension, Brady told Goodell he subsequently spoke to one of the alleged ball deflators, Jastremski, about both the broiling scandal and Jastremski's preparation of the game balls for the Super Bowl. A since-released transcript of that appeal hearing shows Brady testified:

I don’t remember exactly what we discussed. But like I said, there was two things that were happening. One was the allegations which we were facing and the second was getting ready for the Super Bowl, which both of those have never happened before. So me talking to him about those things that were unprecedented, you know, he was the person that I would be communicating with. Tr. 130.

He also said:

So I think trying to figure out what happened was certainly my concern and trying to figure out, you know, what could be — possibly could have happened to those balls. Tr. 144.

But when the commissioner reported the facts in his appeal ruling, which denied Brady relief, Goodell wrote the following in a footnote:

In response to the question, “Why were you talking to Mr. Jastremski in those two weeks?,” Mr. Brady responded, in sum: “I think most of the conversations centered around breaking in the balls [for the Super Bowl].” For reasons noted, I do not fully credit this testimony.

Goodell cited Brady's lack of credibility in upholding the initial Deflategate penalties. But the footnote was misleading, as Brady’s testimony from the appeals hearing shows. 

Clement had a chance to recede from those misstatements in the NFL’s opening brief to the Second Circuit and at oral argument. But instead he and the NFL doubled down. At argument, for instance, Clement told the three-judge panel: "The first and only meeting ever in the quarterbacks room. And the explanation for that is they’re preparing balls for the Super Bowl." (emphasis added). That ignored Brady's statement to the commissioner that he also discussed the Deflategate issue with Jastremski, as one would expect given the surrounding circumstances.

That misstatement engendered a public outcry--mostly from commentators in the New England area, but also elsewhere--demanding that Clement correct the mistake in the Second Circuit. 

In a letter to the court filed today, March 21, Clement stood by his statements. Here's how Clement characterized his oral argument contention (which I've already quoted above): "Counsel explained at argument that the Commissioner found Mr. Brady's explanation that those communications related to the preparation of Super Bowl footballs not to be credible." Letter at 2. But that pretty clearly isn't all Clement said at the argument, where he added that "the explanation" for Brady's conversation with Jastremski was "they're preparing balls for the Super Bowl." At best, Clement omitted the fact that Brady told the commissioner he and Jastremski also discussed the Deflategate allegations as part of Brady's efforts to "figure out" what "possibly could have happened to those balls." So Goodell's later claim that Brady's testimony was incredible because he failed to mention discussing the scandal with Jastremski was false.

Clement went on to write in his March 21 letter that "what is relevant is that the Commissioner rejected as not credible the only innocent explanation Mr. Brady offered." Letter at 3 (emphasis in original). Sure. But Commissioner Goodell's misrepresentations in his appeal ruling unquestionably portrayed Brady in a bad light. Why keep up the ruse on appeal to the Second Circuit.

(Elsewhere in the letter, Clement admits that the NFL's opening brief contained a misstatement concerning which league interviews Brady's lawyer attended, but claims the fact was "immaterial." Letter at 2, first full paragraph.)

Clement is a highly-respected lawyer and is widely considered one of the best Supreme Court advocates of his generation. I assume the factual liberties in the NFL's brief and the oral argument were unintentional. But that doesn't explain why he wouldn't fess up to them in his letter to the Second Circuit.

Thomas Asks First Oral Argument Question In A Decade

Justice Thomas today asked his first question of counsel at an oral argument in just over one decade. Thomas is well known for his view that oral argument is a time for counsel to present her arguments, not a time for the justices to interrupt to express their own positions on the case. The argument was in the Voisine v. United States case.

Early speculation is that Justice Thomas's question was motivated by Justice Scalia's absence on the Court and a desire to voice opinions that Scalia might previously have voiced for both men (Scalia was a frequent questioner and is often cited as sparking the Court's current practice of asking a torrent of questions during argument). If that's the case, we can expect that Thomas's questioning today won't be an isolated event.

Once the transcript of the oral argument is released, I'll link to it here.

UPDATE: Here is the link to the Voisine oral argument.   Justice Thomas's questioning begins on page 35 and runs through page 39. Five whole pages of questioning!

Great Use of Pictures in an Appellate Brief

The issue in Foster v. Chatman, currently in the briefing stages in front of SCOTUS,  is whether prosecutors in a capital case violated Batson by intentionally striking black jurors on the basis of race. Not only did prosecutors strike all four black jurors from the panel while claiming facially race-neutral reasons that would apply equally to unstricken white jurors, but the defendant later uncovered documentary evidence that prosecutors had conspired to strike all the black jurors.

To highlight that latter point, the Petitioner's brief copy-and-pastes photos of the prosecutors' damning work product into its Statement of the Case section. Pet. Br. 15-16. The effect is terrific: the photos display jury selection worksheets in which the black jurors' names are highlighted and marked with a "B"; juror questionnaires on which prosecutors circled the word "BLACK" that jurors had filled into the race category; and another document on which prosecutors labeled black jurors "B#1," "B#2," etc.

As the Petitioner's brief amply demonstrates, when the pictorial evidence supports your position that strongly, you should include it within the body of your brief.

The Chief Justice’s Obergefell Dissent and His View of the ‘Judicial Role’

     Obergefell is now in the books, and same-sex marriage is the law of the land. In this post, I lay out a few of my thoughts, not on Justice Kennedy’s majority opinion, but on the lead dissent in the case, written by Chief Justice Roberts.

First, the dissent is classically the Chief’s, representing the sort of concern for the Court’s legacy and role that we would rightly expect from a Chief Justice. For instance:

• “Those who founded our country would not recognize the majority’s conception of the judicial role.” (Op. at 25);
• “When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.” (Op. at 26); and
• “[A] Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’” (Op. at 22).

Second, compared to the Chief’s dissent in Windsor, his Obergefell dissent takes a decidedly different approach to dissenting opinions. Whereas in Windsor the Chief attempted to argue that the majority opinion did not resolve future questions about gay marriage (it was Justice Scalia’s dissent that forecast the demise of anti-same-sex marriage laws), in Obergefell he has taken the opposite approach, arguing that the majority’s opinion paves the way for “plural marriage.” The Chief writes:

•   “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” (Op. at 20);
•   “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” (Id.); and
•   “Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” (Id.).

The Chief ultimately suggests that there may be “relevant differences that compel different legal analysis.” (Op. at 21). But he makes no attempt to say what those differences may be, and indeed, the tenor of his opinion suggests he thinks Obergefell removes the bulwarks that would otherwise prevent some 500,000 polyamorous American families (id.) from enjoying the due process right to marriage the majority establishes.

Third, the Chief observes, correctly I think, that there is a difference, for equal protection purposes, between the right to the title of “marriage” and the rights to the benefits marriage has traditionally conveyed upon its members. The challenged laws in Obergefell were not laws that deprived same-sex couples of the many benefits of marriage (spousal hospital visitation; adoption; trusts & estates; tax incentives), but merely deprived them of the right to “marriage.” A law depriving same-sex couples of tax benefits presents a far greater equal protection concern than a law that tells same-sex couples only that they are not entitled to call themselves “married.” As the Chief says, “[t]he equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.” (Op. at 24).

That thought mirrors one I’ve had: that the same-sex marriage movement has done a masterful job of eliminating the term “civil union” from our national discourse. A state providing for same-sex civil unions—so long as those unions conveyed all the same benefits as marriage, while withholding only its title—would present a much closer equal protection challenge, and might even survive such a challenge. But by pretending that there was but one choice (marriage or non-marriage), the challengers teed up a challenge that really was never there. That is, it presented the Court with a false choice between rights or no rights. But that choice needn’t have been made.

While the “psychic harm” or stigma of not being permitted to “marry,” despite the fact that a couple enjoys all the traditional benefits of marriage, may nonetheless offend the equal protection clause, that is far from clear. That issue probably should have been decided. 

Presidential Comments About Pending SCOTUS Decisions

At VC, Professor Adler has a useful post discussing a forthcoming study reporting that President Obama has commented on pending SCOTUS decisions with more frequency and more depth than previous presidents. I agree with Adler that the President's practice is a poor one, since it lends the impression that the Court is not a neutral body and is subject to external influence. Adler distinguishes, as would I, between comments made during deliberations (inappropriate) and comments made before argument and during the briefing (appropriate). 

I would add that the reason for this President's increased rhetoric concerning pending cases is not likely merely the fact that he was a U.Chicago law professor, but also because the Supreme Court has now heard three cases threatening the President's signature legislative achievement: Obamacare. 

We all remember the first go-round, where the Court voted 5-4 to uphold the individual mandate on tax grounds. Then, there was rampant speculation--apparently confirmed from within the Court itself--that the Chief Justice had changed his conference vote, where he had initially sided with the dissenters to strike down the law. That was around the time the President began ma

Then there the RFRA challenge brought by the private, religious employers. And now Obamacare is again in serious jeopardy with this year's challenge to the federal subsidy provisions. 

The President campaigned vigorously in the press and public to get the law passed; to promote the law and the use of the healthcare exchanges; and later to defend the law from challenges in the Court. So far as I am aware, other presidents have not faced similar efforts by litigants to strike down their signature legislative accomplishments while the president was in office. 

Kansas Governor OK's Remarkable Invasion Of Judicial Branch

In an apparent act of retaliation against the Kansas Supreme Court for striking down an earlier law dealing with education, the Kansas legislature and Governor Sam Brownback have passed and signed a law funding the judicial branch but simultaneously threatening to defund the branch if it strikes down the funding law. And there is reason to think the courts might: The law purports to vest the authority to select chief district judges in the State's district judges themselves, not in the Kansas Supreme Court. The State constitution gives the supreme court "general administrative authority over all courts in this state."

According to NYT, critics of the law accuse the governor of attempting "to stack the district courts with judges who may be more favorable to his policies."

A threat to defund the entire judicial branch sounds like an unrealistic threat to me, but it's there nonetheless. 

Coalition for the Protection of Marriage Accuses 9th Circuit of "Panel-Packing"

In a cert petition filed on April 9, the anti-same-sex marriage group Coalition for the Protection of Marriage accuses the Ninth Circuit of "panel-packing" in order to tip the scales in favor of challengers of Nevada's prohibition on the recognition of same-sex marriage. The coalition defines "panel-packing" as "assigning a case to a three-judge panel of particular judges with the intent of influencing the outcome." Pet. at 27. 

Here are the facts the Coalition alleges to substantiate its panel-packing challenge (Pet. at 29):

From January 1, 2010, to October 13, 2014, the Ninth Circuit had assigned to merits panels eleven cases involving the intersection of federal constitutional rights and sexual orientation law (the “Relevant Cases”), as were listed and described in a table included among the exhibits to the Petition (Dkt. No. 274-2 at 6-10). Judge Berzon was on five of those panels. Dkt. No. 274-2 at p. 6. Judge Reinhardt had the next highest number, with four panel assignments. Id. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Id. Seventeen judges, including District Judge Bennett, received one assignment. Id. Eighteen of the judges with active status during any part of the relevant time period received none. 

A serious statistical discrepancy indeed! 

(Because it will no doubt need saying, the previous line was uttered sarcastically. The Coalition does cite,however, a statistician who claims the odds of these panel make-ups is 441-to-1. See Pet. App. at 191a.)

The Coalition goes on to argue that "Careful statistical analysis indicates a high likelihood that the number of Relevant cases assigned to Judges Reinhardt and Berzon, including this and the Hawaii and Idaho marriage cases (which the petition treated as one for these purposes), did not result from a neutral judge assignment process." (Pet. at 29). It also cites the wisdom of the "reasonable person," who simply wouldn't believe that gay-marriage friendly judges could have been so fortunate to find themselves on 5 panels hearing gay-marriage cases (Pet. at 31):

The appearance of unfairness is not a close question here. Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of a circuit’s eleven Relevant Cases involving a particular issue, and when both that Judge and another Judge with respect to whom assignment disparities also exist, are assigned to the most momentous of those cases, here involving same-sex marriage. That sense will deepen on realizing that eighteen of the judges with active status during any part of the relevant time period were assigned to none of the eleven Relevant Cases. That sense will deepen even further because of the appearance, arising from widely shared public perceptions, that Judges Reinhardt and Berzon’s presence on the panel favored one side over the other.

It's not the first time the Coalition has raised this argument. It did so in its petition for rehearing en banc back in 2014. Chief Judge Kozinski, for his part, has denied that any type of panel-packing occurred, as did the Ninth Circuit's top administrator. 

Remarkably, the Coalition fails to cite to a recent law review article by respected professors Adam Chilton (Chicago) and Marin Levy (Duke), Challenging the Randomness of Panel Assignments in the Federal Courts of Appeals. The article was quite math-y and involved graphs. In short, it was well beyond my ken. But I ferreted out one of the relevant conclusions: "there is evidence that the ideological balance of panels is non-random in four circuits: the D.C. Circuit, the Second Circuit, the Eight Circuit, and the Ninth Circuit." At 31. 

Either way, the Coalition's position here sounds like sour grapes.

An Entertaining Kagan Footnote On "Acre-Foot of Water"

In today's decision Kansas v. Nebraska, the Court resolved a water rights dispute. I enjoyed footnote two of the opinion. You can just imagine Kagan reading this paragraph aloud:

"An acre-foot of water is pretty much what it sounds like. If you took an acre of land and covered it evenly with water one foot deep, you would have an acre-foot of water." 

REBLOG: Steven Klepper On Fourth Circuit "Soft Precedent"

Here's a great blog post from Steven Klepper, the editor of Maryland Appellate Blog. Klepper discusses the various reasons underlying the Fourth Circuit's unusual practice of designating lengthy, divided opinions as "unpublished." His conclusion? The court designates some divided opinions as unpublished to avoid creating binding precedent in the circuit, thus giving other panels an opportunity to differ on the same issue without having to go en banc. 

Same-Sex Divorce: Stufflebeam Appeal Decided

Due to the holiday, I neglected to bring you news of the Third District Court of Appeal's decision resolving the Oliver v. Stufflebeam case, which I've previously discussed. The question in Stufflebeam was whether a Florida trial court could dissolve the out-of-state same sex union of two women who were validly married in Iowa. 

On the eve of Christmas, the court held "no"—Section 741.212, which provides that same sex marriages "are not recognized for any purpose in this state," barred the divorce. 

The court began by noting that the parties had formulated their appeal as a question of statutory interpretation, not one of the constitutional validity of the statute. Thus, the parties had argued that Section 741.212 should be read to permit same-sex divorce, since, in their view, a trial court was not required to "recognize" a marriage in order to dissolve it.

From there, it was a simple matter of holding that "Where there is no valid marriage there can be no divorce." 

The court did note, however, that its decision did not prejudice the rights of the parties to seek an annulment in the trial court. An annulment, unlike a divorce, does not necessarily "recognize" a marriage. The court noted that "a court need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state."

It’s interesting to note the court’s dismissal of the parties’ statutory interpretation argument that the court should read the statute in their favor—so as not to forbid same-sex divorce—in order to avoid constitutional concerns. Of that argument, the court wrote:

This position is legally puzzling. It would be a disingenuous court indeed that would “avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here.

See n.1.

That is simply wrong. The Florida Supreme Court has called it a "settled principle" that "[w]hen two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution." State v. Presidential Women's Center, 937 So. 2d 114, 116 (Fla. 2006); see also Arthur Young & Co. v. Mariner Corp., 630 So. 2d 1199, 1203 n.5 (Fla. 4th DCA 1994). The parties had fully briefed this issue. Although they did not ask the court to invalidate the law on equal protection or due process grounds, they did argue that interpreting the statute to preclude the relief they sought would raise those constitutional concerns, and therefore the court should read the statute more narrowly. 

A party need not challenge the constitutional validity of a statute in order to raise this canon of construction. It is enough that the party apprise the court of the potential for constitutional concerns, should it adopt the opposite interpretation of the statute.

Female SCOTUS Clerks Since 2004

As a follow-up to my earlier post about the relatively small number of women in appellate practice, here is a breakdown of the female SCOTUS clerks of the last ten years by Justice (Terms 2004-13). I found that 35 percent of clerks throughout that period have been women. That is higher than the percentage of women (under 30 percent) who currently do appeals for the major appellate law firms.

Justice	Total Clerks	Female Clerks	% Female Clerks
Roberts, C.J.	32	8	25%
Rehnquist, C.J.	6	1	17%
Alito	36	10	28%
Breyer	40	19	48%
Ginsburg	40	21	53%
Kagan	16	5	31%
Kennedy	40	8	20%
O’Connor	16	7	44%
Scalia	40	7	18%
Sotomayor	20	7	35%
Souter	25	8	32%
Stevens	28	16	57%
Thomas	40	15	25%
Totals	379	132	35%

Gender Disparity In Appellate Practice (UPDATE)

This post addresses the possibility of a significant disparity between the number of men and women practicing appellate law at a high level. 

It’s a pretty well-known fact that very few of the top appellate advocates in this country are women. These include Kathleen Sullivan, Maureen Mahoney, Lisa Blatt, Patricia Millett (now a judge on the D.C. Circuit), and a few up-and-comers like Paul Clement’s protégé and law partner Erin Murphy. (See this post over at Daily Writ for a list of the top 10 female SCOTUS advocates by number of arguments). If you listed the 10 most prominent SCOTUS advocates since 2000 by number of arguments, only a single woman--Millett--would make the cut. 

What are the odds of this trend turning around? I figure that the best way to determine this is to consider the following factors: (1) The percentage of women currently in the SG's Office; (2) the percentage of women in high-value/SCOTUS clerkships; and (3) the percentage of women in notable law firm appellate groups. 

If I get the chance, I'll look into the first of these two categories. (It’s commonsense that women with SCOTUS clerkships or SG’s Office experience will have little difficulty landing appellate positions in private practice. Melissa Arbus Shelly just left the SG’s to join the appellate partnership at Latham & Watkins, for instance). For now, I've broken down the raw numbers and percentages of women practicing in the top appellate firms. Here are some highlights. 

·   According to a 2012 study by the National Association of Women Lawyers, the gender-breakdown at AmLaw 200 firms is: equity partners = 15% women; non-equity partners = 26% women; counsel = 34% women; and associates = 46% women. Amongst Hot List firms, women constitute 23% of the appellate partnership (within the expected range of firmwide numbers).*

·   But women constitute only 28% of counsel and associates, well below the expected range. (The NAWL study didn’t provide a percentage of non-partner women, but I assume it is approximately 40%, when you consider that associates vastly outnumber of-counsel). This suggests that the future is bleak for women among appellate partnerships. The number/percentage of female partners matters for purposes of my study, since partners give the overwhelming bulk of appellate arguments.

·   The most “women-friendly” Hot List appellate groups are Baker Botts (47% women overall) and Hogan Lovells (44%). The boys’ clubs include Sullivan & Cromwell (9%) and Mayer Brown (17%). If you’re a woman interested in appellate law, you might want to avoid those last two. Unfortunately for you, Mayer Brown is one of the very best appellate practices, so you’ll be missing out on all those good cases.

(A note on methodology: Using the 2014 National Law Journal's "Appellate Hot List," the appellate practice group-pages of those law firm websites, a calculator, and a spreadsheet, I deduced the total number of appellate lawyers; partners; women; and woman partners, and did simple math to arrive at the percentage of appellate women and appellate woman partners firmwide. You should double-check my numbers; I have little faith in my own ability to add, subtract, and divide, even with the assistance of Windows’s pre-loaded calculator. Also, keep in mind that the appellate practice group-pages of these law firms simply list all lawyers who have “appellate practice” as one of their practice areas; that’s no guarantee that all of the lawyers on the group-page spend a majority of their billable hours on appellate matters. It’s nonetheless a good starting point.)

And here's the complete breakdown:

Breakdown of Appellate Gender In NLJ's "Appellate Hot List" Firms

Firm	Appellate Lawyers	Appellate Partners	Appellate Women (% attorneys)	Appellate Woman Partners (% partners)
Akin Gump	35	13	7 (20%)	0 (0%)
Arnold & Porter	27	13	7 (26%)	2 (15%)
Baker Botts	19	11	9 (47%)	4 (36%)
Fish & Richardson	34	26	12 (35%)	7 (27%)
Gibson Dunn	132	63	34 (26%)	12 (19%)
Hogan Lovells	61	21	27 (44%)	6 (29%)
Jenner & Block	15	9	4 (27%)	2 (22%)
Jones Day	75	32	19 (25%)	7 (22%)
Kirkland & Ellis	83	59	22 (27%)	11 (19%)
Latham & Watkins	71	32	22 (31%)	9 (28%)
Mayer Brown	52	31	9 (17%)	5 (16%)
McDermott Will & Emery	36	31	9 (25%)	7 (23%)
Morrison & Foerster	38	24	11 (29%)	5 (21%)
Orrick	24	7	7 (29%)	2 (29%)
Quinn Emanuel	N/A	26	N/A	9 (35%)
Sidley Austin	75	40	21 (28%)	10 (25%)
Sullivan & Cromwell	43	32	4 (9%)	4 (12%)
Vinson & Elkins	20	10	6 (30%)	3 (30%)
Wilmer Hale	55	29	18 (33%)	6 (21%)
Winston & Strawn	39	18	9 (23%)	4 (22%)
Totals	934	501	257 (28%)	115 (23%)

This list could be further refined by breaking down the figures for the firm offices that tend to handle the most high-profile appellate matters, like the D.C. and N.Y.C. offices, or by calculating the figures for broader firm practice areas like "litigation" and "corporate/transactional." The more available data, the better we might predict the reasons that fewer women appear in appellate practice than in law firms firmwide. That can be a project for another day.

*I recognize that comparing the Hot List firms, which are the highest echelon of AmLaw firms, with all AmLaw 200 firms might not be the soundest comparison. It's possible that Hot List firms have lower percentages of female partners and non-partners than the average AmLaw 200 firm. But compiling the data on Hot List firmwide-women would be an arduous task, given that I'd have to look at each firm's NALP forms for each office. If somebody has a better source for this data, leave a comment.

**Quinn Emanuel's appellate website only lists appellate partners. Because I didn't have the raw data for non-partners, I left Quinn out of the "Totals" category.

UPDATE: This somewhat-dated study (2008) by the ABA found that, in the preceding 14 terms, only 19 to 40 percent of SCOTUS clerks were women.