Josh Rosenkranz Weighs in on How to Promote More Women SCOTUS Advocates

October.26.2017

American Lawyer’s Tony Mauro sought the insights of top SCOTUS practitioners, including Orrick’s Josh Rosenkranz, to understand why there are so few female advocates before the Supreme Court. The question follows a study by Empirical SCOTUS, which shows that just under 18 percent of the advocates before the Supreme Court from 2012-2017 were women, despite the fact that women have a stronger win record than men.

Josh observed:

“The reason there is a dearth is that so many top Supreme Court practitioners are playing a volume game. They accept every argument opportunity that comes their way in the lower appellate courts, which deprives more junior lawyers of the notches they need to present themselves as viable candidates for a Supreme Court argument. And then they rack up Supreme Court arguments like Christmas tree ornaments, refusing to steer them—even the pro bono cases—to colleagues who do have significant notches in their belts.

I’ve vowed to my partners that I will not argue more than 10 cases a year, which means steering a significant number of argument opportunities to other colleagues who are building their practices. … I will work to credentialize those colleagues and resist pressures to take the lead, even if the client says that we are bidding against an appellate titan. This actually serves my business model well. If I argued 15 or 20 cases a year, I simply could not dig in to any of them or own the briefs the way I feel comfortable doing.

Second, I am also striving to limit my Supreme Court arguments to two cases a term. When we take pro bono cases at the cert. level, I almost always condition it on an ‘Orrick lawyer’ arguing the case rather than committing that I will argue the case. And then I work to make sure the clients spend time with other colleagues and get comfortable with them taking the lead.”

In addition to Josh, ALM talked with Lisa Blatt of Arnold & Porter Kaye Scholer; Ilana Eisenstein, former assistant solicitor general, of DLA Piper; D.C. Circuit Judge Patricia Millett, also a former assistant solicitor general; and Neal Katyal of Hogan Lovells and former acting solicitor general.

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E. Joshua Rosenkranz Partner, Supreme Court & Appellate, Intellectual Property

New York

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Intellectual Property
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E. Joshua Rosenkranz Partner

New York

Josh has been named American Lawyer's “Litigator of the Year” twice, in addition to being a finalist for 2022. In 2012, the magazine dubbed him “the Defibrillator” based on his streak of appellate wins for companies that “appeared to be at death’s door,” and in 2017 it declared, he “still deserves the moniker we once gave him.”

In 2014, The Financial Times named Josh one of the 10 most innovative lawyers in the North American legal sector for his work “demystify[ing] the technical issues” and securing a victory in the blockbuster Federal Circuit appeal, Oracle v. Google. Chambers USA has reported, “He wins accolades for his ‘brilliant analysis and judgment.’ Clients appreciate how he ‘rethinks every case from the ground up,’ and add: ‘He can take the most complicated legal or technological issue and present it in a way that seems like common sense.’” Another edition of Chambers USA added: “‘His briefs are quite simply beautiful,’” and “clients describe his courtroom presence as ‘both commanding and accessible at the same time.’ He has the ‘perfect combination of persuasiveness, intelligence, wit, and deference.’”

Josh's practice covers a wide range of subjects, including intellectual property, financial services, securities, privacy, antitrust, federal preemption, insurance law, corporate governance, criminal law, and constitutional litigation. Among his recent clients are Cisco, Credit Suisse, Cox Communications, DISH Network, Genentech, Gilead, Johnson & Johnson, JPMorgan Chase, Microsoft, Mozilla, Oracle, Sonos, and Royal Bank of Scotland.

Clients turn to Josh to win the highest stakes appeals, including appeals in cases that threaten the very survival of a business. For example:

He represented Microsoft in an international cause célèbre in the U.S. Supreme Court challenging the U.S. Government’s claim that it can serve warrants for emails stored overseas.
He represented DISH Network in one of the most high-profile patent appeals in the country, successfully overturning an injunction that threatened the company's life.
He has been lead counsel in multiple cases either defending or challenging verdicts over $1 billion.
He represented Facebook in the high-profile battle waged by the founder's Harvard classmates, the Winklevoss twins, who laid claim to the idea for Facebook, winning a ruling from the Ninth Circuit to end the lawsuit.
He won a landmark victory in a Supreme Court case that rescued the estimated $60 billion U.S. market of copyrighted goods manufactured abroad.
He represented 36 law schools in a high-profile Supreme Court case against the Department of Defense.

Josh was the founding president and CEO of the Brennan Center for Justice at New York University School of Law, one of the country’s foremost public interest firms. Over the course of eight years, he was the Brennan Center’s chief strategist on litigation and public policy advocacy. Before that, Josh founded the Office of the Appellate Defender, a public defender office specializing in criminal appeals.