(Photo courtesy of NAACPLDF)
Unfortunately this story got buried in the news of Election mess, but earlier this week an African-American female lawyer argued a historic case in front of the Supreme Court of the United States (SCOTUS). NAACP Legal Defense Fund litigation director Christina Swarns argued a racially charged death penalty case. And she was the first Black woman to argue a U.S. Supreme Court case in three years.
As the presidential candidates and others debated the need for judicial reform, Swarns presented oral arguments in Buck v. Davis, defending Duane Buck, a Texas death row inmate whose trial was marred and tainted by racially discriminatory expert testimony.
It is also important to note that while African-Americans are still incarcerated at disproportional numbers, Swarns, 48, is one of the few Black attorneys to ever argue in front of the nation’s highest 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,” reported Mother Jones. And it’s a small circle of lawyers who get the opportunity to appear before the court. In fact, according to a 2014 Reuters investigation, between 2004 and 2014, 20 percent of the cases that came before the court were argued by the same eight male lawyers.
The number of Black women who have argued in front of SCOTUS is very few: NAACP Legal Defense Fund’s (LDF) former counsel Constance Baker Motley, who argued 10 Supreme Court cases between 1961 and 1964 (she won 9, including the case that allowed James Meredith to enter the University of Mississippi as its first Black student; LDF litigation director Elaine Jones, who was the counsel of record in Furman v. Georgia, the case that led to the brief abolishing of the death penalty in 1972; and Shanta Driver argued in 2013 to preserve affirmative action in admissions at public universities in Schuette v. Coalition.
In actuality, Black female lawyers have been unable to get to the higher levels of the field; we make up less than 1 percent of big law firm partners.
According to Verna Williams, who has argued before SCOTUS, even when Black women are leading a case that makes its way to the highest court, a lawyer from the Supreme Court bar, which is mostly male, tends to take over as the lead litigator. The original lawyers feel pressured to let someone who is a “seasoned Supreme Court litigator” take over. “That’s when people kind of swoop in on you. They want to take your case,” explained Williams to Mother Jones. “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.”
The case that Swarns argued focused on the integrity of the judicial system and much racial bias and discrimination can taint cases. “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…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,” reported Mother Jones. Obviously, the case set a dangerous precedent–that he was predisposed to committing crime because of his race.
Swarns wants the high court to call for the reopening Buck’s sentencing. No decision has come down as of yet.
