Women and Other Strangers Before the Bar

ALICE L. O'DONNELL

"It is impossible to close one's eyes to the fact that she [woman] still looks to her brother and depends upon him. Even [if] all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection."

The above quotation is from an opinion of the Supreme Court of the United States announced in 1907, over a quarter of a century after this august body first agreed to admit a woman to the bar of the Supreme Court. Women have since then come a long way--in the law and in other professions--but until recently progress was slow and surely must have been discouraging to the pioneers in this area.

From the time the Judiciary Act of 1789 was passed and the Supreme Court of the United States was established, it was ninety years before the first woman was admitted to the bar of that Court, and it took a special Act of Congress to bring this about.

It took a total of 131 years of the Court's existence to admit the first 100 females. Starting with Mrs. Belva Lockwood's admission in 879 and covering a period of 41 years (or until 1929), the first 100 women were admitted from 26 states and the District of Columbia. Understandably, Washington, D.C., leads, with the number of women admitted from the District totalling 26 during that period. Undoubtedly propinquity and the operation in the District of a law school which admitted women had a lot to do with this relatively large number. The State of New York has the next highest, with a total of 13. What is amazing is that many distant states competed for representation with states in the East.

For example, the rolls show that seven were admitted from California by 1920; one came from Oregon in 1918; two came from the state of Washington, between 1913 and 1918; Nevada had two between 1913 and 1916 (a surprising fact since Nevada to this day does not have a law school); and Arizona was represented through Sarah Herring Sorin in 1906, six years before this state was formally admitted to the Union. And it surely must be gratifying to the distaff side of the bar in Louisiana that at least one woman in their state was included in the first 100 by being admitted to practice before the Supreme Court in 1919. This is the State which until January 1975 excluded women from jury panels unless they filed a written declaration of willingness to serve. And some message must be found in the fact that during this period two states contiguous to the District of Columbia, Maryland and Virginia, were represented by only one each on the Supreme Court rolls.

It is easy to imagine the consternation of some of those Justices entertaining a suggestion that women be admitted to the Supreme Court bar, especially since stories about the first days in the new Supreme Court building in 1935 include one relating how one Justice was opposed to having any women employees at the Court. One Clerk of Court finally dared pioneer the course and hired a woman to work in his office. But so violently opposed was the Justice that (tales recount) the woman had to hide every time he was heard to be approaching the office.

Women continued for some to time to face stumbling blocks in all areas of endeavor. But it was in their early attempts to enter the legal profession that the most insurmountable stumbling blocks showed up. There appeared on all scenes an increasing number of women agitating for women's rights--from rights to enter all professions as well as the suffragette movement. And all of this had much to do with the ultimate acceptance of the fact by the courts that women were here to stay. It undoubtedly made it a little easier for three women in particular who deserve special credit for having pioneered the cause in the legal profession.

Myra Bradwell was the wife of Judge James B. Bradwell, of Chicago, and daughter of Eban and Abigail Willey Colby. Upon the maternal side a descendant of the Willeys, a family well represented in the Revolution, and two members of whom were in the Battle of Bunker Hill. She was born in Vermont, but in infancy was taken to western New York, where she remained until about twelve years old. She then came to Chicago, where she continued to live for the greater part of her life.

She was educated in Kenosha and at the ladies' seminary in Elgin, where she afterward became a teacher. Still later she taught school in Memphis, Tennessee. In 1852 she was married to Bradwell, whose father was one of the pioneer settlers in Illinois. Though Mrs. Bradwell began the study of law under the tutelage of her husband, it was apparently only a side interest and she had no serious plan to become a practicing lawyer, perhaps because she realized that, being a married woman, she would be denied admission to the bar. She continued to work with her husband, however, and later did file an application for admission to practice before the Supreme Court of Illinois--the first such application from a woman ever to be filed in this country.

Mrs. Bradwell's petition was supported with a certificate from an inferior court which attested to her good character and asserted that she possessed the necessary qualifications. Apparently foreseeing a hazardous path she also filed a paper stating she was entitled to the license applied for by virtue of Section 2, Article IV and the Fourteenth Amendment to the Constitution of the United States. She was denied the license, based on decisions of the Illinois Supreme Court and with that court giving as one of its reasons that Mrs. Bradwell, "as a married woman, would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client." The court summarily denied the petition until Mrs. Bradwell pursued the matter further with a printed brief. There followed a confirmation of that court's previous action, in a written opinion.

Discouraged, but determined to exhaust all her legal remedies, she filed a writ of error to the Supreme Court of Illinois in the Supreme Court of the United States. The Court, in an opinion delivered by Mr. Justice Miller and announced in December of 1872, affirmed the action of the Illinois Supreme Court.

But it was the concurring opinion of Mr. Justice Bradley that was the greatest affront. With a lead-in reciting the fact that to license Mrs. Bradwell would be contrary to the rules of our common law inherited from England, "and the usages of Westminster Hall from time immemorial," this 19th-century Justice concluded with:

"The natural and proper timidity and delicacy which belongs to the female sec evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the diviner ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was tiers sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from that of her husband, who was regarded as her head and representative in the social state; and, not withstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husbands consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor

"It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases."

Reflection on the years that spanned the terms of the Justices who participated in the Bradwell case, as well as their backgrounds, belie the words of the majority opinion. Mr. Justice Miller, for example, was appointed from the state of Iowa, and served from 1862 to l890. Surely he must have observed some of the things women were called upon to do during the harsh winters in Iowa, and some the struggles women faced during the Civil War days. Their activities would disabuse any contention that women were fragile and totally incapable of doing a man's job.

To his great credit, Chief Justice Chase, though no doubt having his share of detractors, at least earned some points with the ladies. He dissented from the judgment of Court and from both opinions filed in the case.

Mrs. Bradwell's cause ultimately prevailed and she was finally admitted to the bar of the Supreme Court of the United States on March 28, 1892, on motion of Attorney General W. H. H. Miller.

But it was Mrs. Belva A. Lockwood who was first admitted to the Supreme Court bar, her name being inscribed on the rolls March 3, 1879. Her path was equally rocky. After being licensed to practice in the highest court in the District of Columbia, she petitioned the United States Court of Claims in the December 1873 Term for admission to practice before that court. The opinion of this court denying the application is amazing in both language and reasoning. The opinion refers frequently to common law and the fact that except where it might have been altered by local statute, it prevailed in the District of Columbia.

The judge authorizing the opinion also made the observation that were Mrs. Lockwood to be admitted it would open the door to unheard-of situations. The opinion states that the effect of such a result could be "to have the law declared to be that the wife of a judge of a United States court may appear at its bar . . . and admitted to the practice of the law before her husband." The reasoning following is as amazing as the conclusion. The judge concludes that the law which protected a husband and wife from testifying against each other, and laws which "scrupulously assured to every suitor an impartial tribunal, never contemplated as a possibility that the rights of third persons might be confided to judges liable to be swayed by the most powerful influence known to the law or to humanity." And so there was only one conclusion this jingoistic judge could come up with:

"The fact that there has been no express provision by statute and that there was no exceptional rule at common law to prevent any such dangerous and scandalous practice, certainly indicates that the law has never been considered to authorize the admission of women to the bar." Dicta goes on for pages citing dangerous situations which could arise, including the scandalous possibility that a woman lawyer, the wife of a judge or even the Attorney General, could conceivably make more money than her husband, leading to all kinds of questions in the minds of the public and raising all kinds of suspicions when the affluence became evident (supposedly through a better life style generally).

And so Mrs. Lockwood's application was denied on these amazing grounds. But she was determined and she had personal convictions as to her rights as well as to the legality of her arguments. Ultimately she prevailed.

It must have been gratifying indeed for her to be able to move the admission of other women who followed in her steps to appear before the Justices.

Miss Katy Kane of Chicago was a Virginian by birth, but the Supreme Court records show that she was admitted to the Supreme Court of the United States, May 19, 1890, from the state of Illinois. She was educated in the Midwest, her parents having moved to Wisconsin in her early childhood. She practiced law in Chicago and did much to show that women as well as men could excel in the legal profession.

Miss Kane uttered some prophetic words early in her career which, read today, reflect her awareness that because of stumbling blocks women had to work harder, but that with perserverance and by acting professionally at all times they could become a very vital part of their chosen profession. She said in the late 19th-century: "I soon learned after my admission to the bar, that the only way to demonstrate a woman's ability to practice law, was for her to drop all collateral lines of work and side agitations and devote herself wholly and entirely to her profession. Having arrived at this conclusion, I lost no time in acting accordingly, and that with only one little word for motto--`Work.' And I can assure you that no soil ever responded more fruitfully to work of the toiler than has the profession yielded to my work. It first demonstrated to me what was once an inane and feeble expression in my own mind, that I was capable of practicing law; it soon convinced the public of the same fact; and it finally proved to be the talisman that charmed away those ever recurring prejudices which so frequently find lodgment in the minds of judges and jurors.

"The law is not a pedestal upon which to pose and display one's charms. It is a profession that ruthlessly buries all who trifle with it, and yields supremacy only to its devotees; and I am prouder of its mastery than as if I were Czar of all the Russias or President of the United States."

Until 1970 the Supreme Court Rules required a personal appearance for the motions for admission to the Supreme Court bar, but a growing list of applicants with an attendant increase in the amount of court time required to hear admissions brought a change in the Rules. Now applicants may be admitted by mail or in open court. The first Term that admissions were permitted in absentia the number hit an all-time high: 6,682, almost double the number admitted the previous Term. To date the list of enrollees totals 109,030. Since notice does not automatically come to the Court on deaths or disbarments, one can only speculate on how many are currently living and eligible to practice before the High Court. Formal applications in writing were required starting in 1925 and the form still includes reference to "attorney" and "counsellor." This is no doubt an influence from the British, who still distinguish between solicitors and barristers. From 1790 to 1801 those who appeared to sign the rolls after admission signed in a column designated for "attorney" or in a column designated "counsellor." The difference at that time was that counsellors argued cases in court, whereas attorneys did not, and generally played a rather junior role. For some reasons some signed in both columns.

While the Supreme Court Rules do not recite how an applicant must be attired when appearing before the Court, accepted practice calls for business suit, morning coat and striped trousers, uniform. For many years seasoned lawyers, especially those who specialized in Supreme Court practice, would never dream of appearing without their swallow-tailed or sack coats, a matter of self pride on their part as much as a show of respect for the High Court. They were encouraged to the point that the Marshal had emergency attire which could be loaned to counsel if for some reason appropriate personal attire was not immediately available. Even today a four-in-hand necktie is in the Marshal's office for emergencies. Such an occasion occurred recently when an applicant appeared for admission in a business suit, but being a Westerner he wore a "bola" or string tie with a large turquoise stone affixed. Clerk's office personnel were of some doubt as to its acceptability, but recalling no precedent politely suggested he borrow their four-in-hand just in case the Clerk himself questioned it in the courtroom.

Women are not the only persons who have had problems with admission. Another incident involving proper dress arose when several uniformed members of the Texas National Guard appeared in the Clerk's Office to inquire how to proceed to be admitted, having previously been notified their applications had been received and were in order. Their uniforms are colorful, a bright blue with a fairly wide red stripe up the side of the trousers. An amazed and conservative Clerk, mistaking their uniforms for garb designed for the Inaugural Parade that day, advised them they could not appear in Court dressed in that manner. Having traveled some 1,500 miles for the ceremonies that day, including their admissions to the Supreme Court bar, they were not about to accept that ruling, especially when Mr. Justice Clark, the only Justice to be appointed to the U.S. Supreme Court from the Lone Star State, was right in the building. Their appeal to the Texas born Justice was quickly heard, the Clerk was promptly advised they were indeed in uniform, the Guardsmen's indignities were soothed and they admitted within the hour.

Copyright 1976, Supreme Court Historical Society