Women as Supreme Court Advocates, 1879–1979

Abstract

Women as Supreme Court Advocates, 1879-1979 MARY L. CLARK* I. Introduction As 2004 marks the 125th anniversary of women’s admission to the Supreme Court bar, this is a fitting occasion to reflect on women’s experiences and achievements before the Court. Given that this is a history piece, this paper will focus principally on the first 100 years of women’s advocacy before the Court, from 1879 to 1979.1 In this 100-year period, women’s membership in the Supreme Court bar grew from two or one or no women per year between 1879 and 1900 (at a time when men were joining at the rate of 250 to 350 per year)2 to over 5 percent of new admittees by 1979. Today, women constitute 25 percent ofthe roughly 4,500 to 5,000 new admittees each year,3 but only 8 percent of the bar overall. What you find in broad brushstroke in studying the history ofwomen’s advocacy be­ fore the Court is that, in the first several decades, women advocates were drawn prin­ cipally from solo and small practices—typical of most attorneys of their day—and were not litigating women’s rights claims before the Court. In the first half of the twentieth cen­ tury, women advocates were drawn principally from government agencies at the local, state, and national levels, and, again, with few excep­ tions, were not litigating women’s rights claims before the Court. In the 1960s and 1970s, a growing number ofwomen advocates were af­ filiated with civil-rights advocacy groups, ex­ plicitly involved in litigating sex- and racediscrimination cases before the Court. Finally, in the last twenty-five years, women advocates before the Courthave been affiliatedinroughly equal measure with governmentagencies, non­ profit advocacy groups, and law-school fac­ ulties. Women presenting argument as mem­ bers ofthe leading law firms remain extremely rare.4 After highlighting some of the most no­ table women advocates of the last century, I 48 JOURNAL OF SUPREME COURT HISTORY Myra Bradwell was a successful Chicago entrepreneur who made a fortune publishing legal texts. Trained as a lawyer, she was refused admittance to the Illinois bar because of her sex. The Supreme Court upheld the state bar’s refusal in 1873, but women were able to join most state bars by the end of the century. conclude with thoughts on why it matters that women have appeared, and continue to appear, before the Court.II. II. Women’s Initial Entry Into the Legal Profession Women first entered the legal profession in the United States immediately following the con­ clusion of the Civil War. Their numbers grew modestly but steadily through the turn of the century,5 despite the Supreme Court’s 1873 de­ cision in Bradwell v. Illinois,6 which rejected Myra Bradwell’s claim that Illinois had vio­ lated the Fourteenth Amendment’s Privileges and Immunities Clause when it refused her admission to its bar on the grounds of sex. In concurring in the judgment in Bradwell, Justice Bradley now famously (or infamously) declared: Man is, or should be, woman’s pro­ tector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. Ultimately, he concluded: The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law ofthe Creator.7 Even with the holding and rhetoric of Brad­ well, women succeeded in joining most states’ bars in the latter part ofthe nineteenth century, such that by 1900, there were one thousand women lawyers in the United States. An increasing number of law schools be­ gan to admit women at this time,8 with women seeking—and gaining—access on the grounds thatthey were equal in theirabilities to men and should therefore learn the law alongside men. By contrast, women gained admission to med­ ical schools on the ground that women’s inher­ ently nurturing natures suited them especially well for the care of women and children, with many aspiring doctors attending all-women’s medical schools.9 Largely because of the dif­ ferent ideologies shaping women...