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When Solicitor General Elizabeth B. Prelogar defended college affirmative action programs before the Supreme Court in October, she cited the lack of diversity in a group of people the justices know well: the lawyers who argue before them.
Just two of 27 lawyers who appeared before the court over the next two weeks would be women, Prelogar told the justices - a statistic that she argued could lead women to wonder whether they have a shot at arguing before the Supreme Court.
Prelogar cited only the dearth of women and not of Black and Hispanic lawyers arguing before the court, but her message in a case dealing with race-conscious admissions programs was clear.
"When there is that kind of gross disparity in representation, it can matter and it's common sense," she told the justices.
Her argument didn't sway the court's conservative majority, which ruled last month that Harvard and the University of North Carolina's affirmative action programs were unconstitutional.
It did garner the attention of the court's three liberal justices, who cited Prelogar's remarks in a dissent, warning that "inequality in the pipeline to this institution, too, will deepen."
But a similar lack of diversity to the one Prelogar pointed out in her argument has persisted for years in the solicitor general's office, which is part of the Justice Department and represents the federal government before the Supreme Court.
Over the past dozen terms, nearly three-quarters of Supreme Court arguments made by lawyers in the office have been delivered by men, according to an analysis by The Washington Post.
More than 80 percent have been made by White lawyers, according to the analysis of the office's attorneys whose race could be confirmed. No Hispanic lawyer has argued a case for the office since 2016. No Black lawyer has done so since 2012.
Prelogar declined an interview request for this story, and the Justice Department declined to comment on the record.
But Prelogar told The Post in a statement last year that "there is more work to be done to ensure that we reflect the American people as we represent them before the Court" and that she was committed "to seeking out, hiring, and retaining outstanding attorneys who fully represent our Nation's diversity."
Prelogar has taken steps since the Senate confirmed her in 2021 to make the office more diverse.
But the years-long absence of Black and Hispanic lawyers from the office demonstrates the glacial pace of change even in an office whose leader says she is committed to diversity and who works for a president who has promised "to build an administration that looks like America."
Among the challenges are federal hiring rules that forbid taking race or gender into account as well as a low turnover rate among lawyers in the office, the vast majority of whom are civil servants, not political appointees.
Critics argue that the office's preference for hiring former Supreme Court clerks - who historically have been disproportionately White - has made it harder to achieve diversity.
Neal Katyal, who served as acting solicitor general during the Obama administration, said the office needs racial and ethnic diversity - along with diversity of political views, religion and sexual orientation - to make the best arguments before the court.
"You are arguing your case to nine justices who come from a variety of different perspectives," said Katyal, who is Indian American. "And to have a workforce that is attuned to those differences in ideology, approach, outlook and background makes for much better advocacy strategy."
Advocates for a more diverse Supreme Court bar also argue the solicitor general's office has a special responsibility to reflect the country it serves.
"The solicitor general is often referred to as the tenth justice. The lawyers in the office represent us, the United States," said Juvaria Khan, the founder of the Appellate Project, which seeks to help more lawyers of color do appellate work. "Because they represent the people, they should prioritize developing an office that reflects all our people and the diversity of the country."
Lawyers and academics who follow the court closely said that diversifying the solicitor general's office could have an outsize effect on the diversity of the broader group of lawyers who argue before the court, in part, because lawyers in the office appear so often. Lawyers who argue before the Supreme Court are disproportionately White and male.
The simplest way to diversify the Supreme Court bar "is to diversify the SG's office," said Noah Feldman, a Harvard Law School professor and former Supreme Court clerk.
Lawyers in the office made more than a third of the 155 oral arguments delivered during the court's most recent term. Many veterans of the office, in turn, go on to work in Supreme Court practices at prominent law firms.
"The SG's office is the most important training ground for lawyers to get stand-up experience arguing cases in the Supreme Court relatively early in their career," Roman Martinez, a member of the law firm Latham & Watkins' Supreme Court and appellate practice, wrote in an email. "It's very hard to do that from scratch in private practice without having SG office experience."
Martinez, who worked in the solicitor general's office between 2013 and 2016, was the last Hispanic lawyer in the office to argue before the court, according to The Post's analysis. The last Black lawyer to do so, Leondra Kruger, is now a California Supreme Court justice.
There are about 21 lawyers in the solicitor general's office, including five deputies and 15 or 16 assistants. Prelogar has filled five openings during her tenure.
One of them, Luke McCloud, is a Black man. He's set to make his first Supreme Court argument since joining the office next term. Three of them - Yaira Dubin, Aimee Brown and Caroline Flynn - are White women. The fifth, Ephraim McDowell, is a White man.
The number of arguments delivered before the court by women in the office has gone up under Prelogar, in part because solicitors general typically argue many cases themselves. Women argued 40 percent of the office's Supreme Court cases during the 2022 term, according to The Post's analysis. That's higher than the overall share of arguments delivered by women - 23 percent - before the court last term.
Racial diversity is another story.
White lawyers argued 84 percent of the office's Supreme Court cases during the most recent term and Asian American lawyers argued 16 percent, according to an analysis of the attorneys whose race The Post was able to confirm. Prelogar and all five of her deputies are White.
Some conservatives have expressed skepticism that increasing racial and gender diversity would lead Supreme Court lawyers to make better arguments.
"It's possible that having people of multiple races in the room when you're writing your briefs and preparing for the argument could make the briefs better and the arguments better," said Brian Fitzpatrick, a former clerk to Justice Antonin Scalia and a professor at Vanderbilt Law School. "I'm certainly open to that. But I just don't think we should engage in racial discrimination based on speculation."
Veterans of the solicitor general's office, meanwhile, said that diversifying the government's Supreme Court litigators is not as easy as critics may make it seem.
While Prelogar and her principal deputy, Brian Fletcher, are political appointees, the other lawyers in the office are civil servants, and Prelogar is forbidden by federal law from taking race or gender into account while hiring. Many lawyers in the office also tend to stay for years or even decades, limiting the number of openings to be filled.
Michael Dreeben, a former deputy solicitor general who worked in the office for more than two decades, said those constraints mean "you can't really expect the solicitor general's office to turn the world upside down overnight."
Dreeben praised the job done by Prelogar given the constraints.
"I think that current leadership is doing a great job with it," he said.
Still, advocates for diversity are becoming impatient with the pace of change.
"It's really disheartening, especially around issues that acutely affect women of color, when there are no women of color arguing before the court," said Fatima Goss Graves, the president and chief executive of the National Women's Law Center.
And one former lawyer in the office argued progress had not only slowed, but gone into reverse in some ways.
"The reason for that is, disappointingly, all the leadership positions in the solicitor general's office are held by White lawyers," the lawyer said, speaking on the condition of anonymity to discuss a sensitive issue. "Most of the arguments done in the office are done by the leadership positions - the deputies and the SG. So, unlike during much of the Obama administration and all of the Trump administration, there is not a single person of color in the OSG leadership."
The position of solicitor general was created in the aftermath of the Civil War in part to defend the constitutionality of the newly enacted Civil Rights Act of 1866. Union veteran Benjamin Bristow became the country's first solicitor general in 1870.
The office has been a springboard for the careers of notable lawyers from underrepresented backgrounds.
President Lyndon B. Johnson selected Thurgood Marshall to be the first Black solicitor general in 1965 before nominating him to the Supreme Court two years later. President Barack Obama chose Elena Kagan as his solicitor general in 2009, making her the first woman to hold the position permanently, before nominating her to the Supreme Court the following year.
Prelogar is the second woman to be confirmed by the Senate as solicitor general. (Barbara Underwood served as acting solicitor general for five months in 2001, but President George W. Bush did not nominate her to lead the office permanently.)
Two other Black men, Wade H. McCree Jr. and Drew S. Days III, have served as solicitor general since Marshall. Noel Francisco, whom President Donald Trump nominated in 2017, was the first Asian American confirmed as solicitor general.
But the rank-and-file lawyers in the office have been slower to diversify.
Katyal, who is Indian American, said he worked hard to convince more women and lawyers of color to apply while he led the office, speaking with Supreme Court justices, judges, law professors, leaders of Supreme Court practices at law firms and Justice Department officials to identify potential recruits.
But while he succeeded in hiring more women, he didn't recruit any lawyers of color.
Some lawyers said considering candidates with a wider range of qualifications could help diversify the office.
"The vast majority of attorneys come from one to two law schools, have the same set of clerkships and are already connected to, quote unquote, 'the right people' who can help get their foot in the door," Khan said. "There are many, many talented attorneys of color who would thrive in the office but are outside of those networks and thus never get considered, especially those who are first generation."
(Three of the five lawyers Prelogar has hired went to Harvard Law School, and all of them are former Supreme Court clerks.)
Days, who served as solicitor general under President Bill Clinton, tried to hire lawyers from a broader range of backgrounds, according to Beth Brinkmann, a lawyer in the office whom he tasked with assessing its hiring practices. He made changes based on her recommendations, which included considering more applicants who hadn't clerked for Supreme Court justices as well as public interest lawyers.
"That increased the number of applicants, resumes and interviews and ultimately led to more diverse hiring, including, for example, two women who now are judges on the D.C. Circuit - Judge [Cornelia] Pillard and Judge [Patricia] Millett," she said. "Ensuring that the focus of hiring is on demonstrated quality and experience rather than just traditional credentials is important."
But Brinkmann's hiring recommendations don't seem to have had a lasting effect.
Donald Verrilli, who served as solicitor general for five years during the Obama administration, succeeded in hiring more women, including Prelogar and Rachel Kovner, who is now a federal judge. But he said he wished he'd done more to attract racially diverse lawyers to the office.
"I probably would have picked up the phone and called judges and asked them about their law clerks more aggressively," Verrilli said. "I would have picked up the phone and called my colleagues, former colleagues in the private sector who were leaders of the appellate practices and asked them whether they can identify some up-and-coming lawyers of color and encourage them to apply and that sort of thing. I really didn't do much of that, and I look back on it and think that would have been something I should have done."
He praised Prelogar for the efforts she's made so far.
"I think the presence of an African American lawyer in the office could be a spur to other African American lawyers applying and thinking that they've got a real shot," Verrilli said.
Feldman, the Harvard professor, is more skeptical.
"Because I'm a long-term optimist, I have hope," he said. "In the short term, I'm also a realist."
"We're still very far from where we ought to be," he added.
• How The Washington Post reported this story
The solicitor general's office doesn't track the race of its lawyers, so The Post asked each of the 61 lawyers who have argued cases on behalf of the office over the past 12 Supreme Court terms to share their race or ethnicity and gender identity.
Fifty-two responded and confirmed their gender; 51 confirmed their race. The Post confirmed the race of four more and the gender of all the remaining lawyers using Supreme Court argument transcripts and public statements.