Addenda to “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,”: A Discussion of Methodology in Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss, and Beatrice Rosenberg

Abstract

Addenda to Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,”: A Discussion of Methodology in Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss, and Beatrice Rosenberg MARLENE TRESTMAN “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin,” which appeared in the March 2012 issue of the Journal ofSupreme CourtHistory,1 presented a chart listing the twenty-eight cases this preeminent appellate advocate argued at the Supreme Court, all on behalf of the Depart­ ment of Labor and involving the Fair Labor Standards Act. After further research about Margolin, and further contemplation about the best way to record the career of a lawyer who appeared before the Supreme Court so many times, I think it is useful to correct and explain the methodology I used in tallying Margolin’s record of cases she argued before the Supreme Court. I hope that this will serve both to satisfy Supreme Court argument scorekeepers and to help other researchers who are trying to come up with a definitive number of “cases argued” and “arguments before the Supreme Court” for long-deceased advocates. Between 1945 and 1965, Bessie Margo­ lin presented twenty-four “arguments,” where PIONEER WOMEN ADVOCATES: ORAL ARGUMENT RECORDS 253 “argument” is measured essentially by the number of times an advocate steps to the podium. Presentation in consolidated cases, therefore, counts as one argument whereas consecutive cases, even if related, are sepa­ rately counted. Margolin’s twenty-four argu­ ments, in turn, comprised twenty-seven “cases,” as identified by a unique Supreme Court docket number. From Margolin’s perspective, however, which focused on the Labor Department’s wage and hour actions against employers, she argued twenty-eight cases, as set forth in the chart published originally with my article. When I first decided years ago to research Margolin’s life and career, I started with what seemed a simple fact, often repeated about her, in one form or another. “Bessie Margolin argued twenty-seven cases at the Supreme Court,” said chroniclers including Clare Cushman,2 Chief Justice Earl Warren,3 and, most importantly for her biography, Margolin herself.4 That simple fact prompted a simple inquiry: Which were the twenty-seven cases? I initially searched an online legal database and an online version ofthe Journal of the United States Supreme Court for all occurrences of “Bessie Margolin,” within Supreme Court decisions and entries, review­ ing each one to identify those that reported Margolin had argued them. Robert Ellis, Federal Judicial Records Archivist at the National Archives, later provided Margolin’s Supreme Court admission papers, which contained a handwritten list, albeit incom­ plete, ofcases she argued. These were helpful starting tools, but it was only when I located Margolin’s numbered lists, nestled among personal files, that I was certain I had identified the twenty-seven cases that she claimed. By comparing all ofthese sources, I discovered a twenty-eighth case that she argued during her career but that she inexplicably omitted from her tallies. The twenty-eighth case was Mitchell v. Oregon Frozen Foods, which Margolin argued on November 17, 1959 and for which the Court dismissed certiorari as improvidently granted based on “ambiguities in the record.”5 Whether Margolin omitted her argument in Oregon Frozen Foods due to mere oversight or perhaps a beliefthat a case not decided on the merits should not be included in her tally, I do not expect that we will ever know. Although I could not explain it, Margolin’s omission of an argued case begged correction. Not bad, I thought; I had identified the twenty-seven cases she claimed and chalked up another case to add to Margolin’s record. To preserve my findings, I listed all twenty-eight cases in the chart, “Cases Argued by Bessie Margolin at the Supreme Court,” which was published as part of my article. Since then, my interest in Margolin’s remarkable life continues; I am writing her book-length biography, under contract with Louisiana State University Press’s Southern Biography Series. To that end, while review­ ing the Supreme Court files at the National Archives in Washington, D.C., for...