My Own Words Read online

  Unflagging effort marked her path to achievement. In 1869, then a mother of two approaching her thirty-ninth birthday, Lockwood applied for admission to D.C. area law schools. Her applications were rejected on a ground familiar in those not-so-good old days: Her presence, she was told, “would . . . distract the attention of the young men” in the class. Lockwood persevered until the National University Law School (today, the George Washington University Law School) allowed her to matriculate. She encountered yet another impediment when the school refused to confer upon her the diploma she had earned. Men in the class were again the asserted obstacle. Graduating with women, it was feared, would lessen the value of the men’s diplomas.

  To overcome that roadblock, Lockwood wrote to President Ulysses S. Grant, the university’s president ex officio. She wasted no words: “I have passed through the curriculum of study . . . and demand my diploma.” Although the president did not directly reply to her, two weeks later, in September 1873, the university’s chancellor awarded Lockwood her law degree.

  In 1876, having practiced law in the District of Columbia for three years, Lockwood met the experience requirement and sought admission to the U.S. Supreme Court Bar. The Court denied her application, 6 to 3, with this terse explanation:

  By the uniform practice of the Court . . . and by the fair construction of its rules, none but men are permitted to appear before it as attorneys and counselors.

  Undaunted, Lockwood relentlessly lobbied Congress to grant her plea. She succeeded less than three years later. In February 1879, Congress decreed that “any woman” possessing the necessary qualifications “shall, on motion, . . . be admitted to practice before the Supreme Court of the United States.” (Lockwood’s case illustrates the productive dialogue sometimes carried on between the Court and Congress. It shows, too, that Congress sometimes is more in tune with changing times than the Court is. Think of Lilly Ledbetter’s case. The Court, five to four, said Ledbetter sued too late. I dissented, saying the Court got it wrong, and Congress should fix it. Congress did, enacting the Lilly Ledbetter Fair Pay Act in record time.)

  Twenty-one months after her admission, Lockwood became the first woman to participate in oral argument at the Court. She next and last argued before the Court in 1906. She was then seventy-five. Using the skill she had gained over a thirty-year span in her specialty—pressing money claims against the United States—she helped to secure a five-million-dollar award for Eastern Cherokee Indians whose ancestral lands had been taken from them without just compensation.

  Lockwood sought more than suffrage. She urged full political and civil rights for all women. Though she could not vote for president, she twice ran for the office herself, pointing out that nothing in the Constitution barred a woman’s candidacy. (She took that bold step 124 years before Hillary Rodham Clinton first became a contender for the Democratic Party’s nomination.) Explaining why she entered the race, she wrote in a letter to her future running mate, Marietta Stow: “We shall never have equal rights until we take them, nor equal respect until we command it.”

  In 1884 and 1888, during her two campaigns as the presidential nominee of the Equal Rights Party, Lockwood cast a spotlight on a range of issues warranting public attention and government action. She advocated, for example, preservation of public lands, citizenship for Native Americans, repeal of the Chinese Exclusion Act, reform of family law to make it less unfair to women, and use of tariff revenues to fund benefits for Civil War veterans. No celestial idealist, Lockwood turned to her advantage the publicity attending the 1884 campaign to launch herself solidly onto the paid lecture circuit. Her fees financed her campaign and she ended up $125 ahead.

  Visitors to my chambers will see displayed on a wall, in space occupied by law clerks, a replica of the vote sheet recording the Court’s refusal to admit Lockwood. Next to the vote sheet is one of several less than flattering cartoons published during Lockwood’s 1884 presidential run against Cleveland and Blaine. Not intimidated by slights and detractors, to the end of her life in 1917, she remained an unflappable optimist.

  So much has changed for the better since Belva Lockwood’s years in law practice. Admission ceremonies at the Court nowadays include women in sizable numbers. It is no longer cause for special notice when women represent both sides in an argued case. Women today serve as presidents of leading universities and bar associations, law school deans, federal judges, state court judges, elected representatives on the local, state, and federal level, and in high executive posts. Three women sit on the current Supreme Court bench. Even so, there is a need for women of Lockwood’s sense and steel to guard against backsliding, and to ensure that our daughters and granddaughters can aspire and achieve, with no artificial barriers blocking their way.

  * * *

  I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. The version reprinted here was delivered to the Women’s Bar Association of Maryland on May 16, 2014, in Baltimore, when Justice Ginsburg received the Rita C. Davidson Award. Justice Ginsburg prefaced these remarks by saying, “Remembering Rita Charmatz Davidson, I am honored to receive this award. Rita was a wise and savvy woman. Keenly intelligent, feisty, funny, persistent, and brave, she used her talent to make things better for those outside the in crowd, and to promote justice, equal and impartial for all.” We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.

  2

  Women’s Progress at the Bar and on the BenchI

  My remarks portray the progress of women at the bar and on the bench in the United States. Remembering the past, I am heartened by the progress. Yet, as the numbers reveal, women in law, even today, are not entering a bias-free profession. Social science research can aid in determining why that is so, and perhaps in solving persistent problems.

  In my growing-up years, men of the bench and bar generally held what the French call an idée fixe, the unyielding conviction that women and lawyering, no less judging, do not mix. But as ancient texts reveal, it ain’t necessarily so.

  In Greek mythology, Pallas Athena was celebrated as the goddess of reason and justice.1 To end the cycle of violence that began with Agamemnon’s sacrifice of his daughter, Iphigenia, Athena created a court of justice to try Orestes, thereby installing the rule of law in lieu of the reign of vengeance.2

  Recall also the biblical Deborah (from the Book of Judges).3 She was at the same time prophet, judge, and military leader. This triple-headed authority was exercised by only two other Israelites, both men: Moses and Samuel. People came from far and wide to seek Deborah’s judgment. According to the rabbis, Deborah was independently wealthy; thus she could afford to work pro bono.4

  Even if its members knew nothing of Athena and Deborah, the U.S. legal establishment resisted admitting women into its ranks far too long. It was only in 1869 that Iowa’s Arabella Mansfield became the first female to gain admission to the practice of law in this country. That same year, the St. Louis Law School became the first in the nation to open its doors to women.5

  Lemma Barkaloo, among the first women to attend St. Louis, had earlier been turned away by my own alma mater, Columbia. As Cynthia Epstein has related, in 1890, when Columbia denied admission to three more female applicants, a member of the university’s Board of Trustees reportedly said: “No woman shall degrade herself by practicing law in New York especially if I can save her. . . . [T]he clack of these possible Portias will never be heard in [our university’s] Moot Court.”6 That board member surely lacked Deborah’s prophetic powers.

  Once granted admission to law schools, women were not greeted by their teachers and classmates with open arms and undiluted zeal. An example from the University of Pennsylvania Law School: In 1911, the student body held a vote on a widely supported resolution to compel members of the freshman class to grow mustaches. A 25 cents per week penalty was to be imposed on each student who failed to show substantial progress in
his growth. Thanks to the eleventh-hour plea of a student who remembered the lone woman in the class, the resolution was defeated, but only after a heated debate.7

  The bar’s reluctance to admit women into the club played out in several inglorious cases. In denying Myra Bradwell admission to the bar, the Illinois Supreme Court observed in 1869 that, as a married woman, Bradwell would not be bound by contracts she made.8 The Illinois court thought it instructive, too, that female attorneys were unknown in the mother country. Concerning English practice, Bradwell wrote:

  According to our . . . English brothers it would be cruel to allow a woman to “embark upon the rough and troubled sea of actual legal practice,” but not [beyond the pale] to allow her to govern all England with Canada and other dependencies thrown in. Our brothers will get used to it and then it will not seem any worse to them to have women practicing in the courts than it does now to have a queen rule over them.9

  (A sense of humor is helpful for those who would advance social change.)

  As late as 1968, the law remained largely a male preserve. Textbooks and teachers at that time so confirmed. A widely adopted first-year property casebook published in 1968, for example, made this parenthetical comment: “[F]or, after all, land, like woman, was meant to be possessed.”10

  The few women who braved law school in the 1950s and 1960s, it was generally supposed, presented no real challenge to (or competition for) the men. One distinguished law professor commented at a 1971 Association of American Law Schools meeting, when colleagues expressed misgivings about the rising enrollment of women that coincided with the call-up of men for Vietnam War service: Not to worry, he said. “What were women law students after all, only soft men.”11

  The critical mass achieved in the 1970s contrasts with the transient jump in women’s enrollment in law school during World War II. In that earlier era, the president of Harvard was reportedly asked how the law school was faring during the war: “[It’s] [n]ot as bad as we thought,” he replied. “We have 75 students, and we haven’t had to admit any women.”12 (Compare the concern said to have been expressed by the same university’s head in Vietnam War days: “We shall be left with the blind, the lame, and the women.”)13

  Why did law schools wait so long before putting out a welcome mat for women? Arguments ranged from the anticipation that women would not put their law degrees to the same full use as men, to the “potty problem,” featured in the title of one of Deborah Rhode’s recent articles—the absence of adequate bathrooms for women.14

  Despite the chill air, the depressing signs conveying “No woman wanted here,” brave women in law would not be put down. In the early 1960s, women accounted for about 3 percent of the nation’s lawyers.15 Today, their ranks have increased tenfold, to about 30 percent of the U.S. bar.16

  In the law schools, women filled between 3 and 4.5 percent of the seats each academic year from 1947 until 1967.17 Today, women are almost 50 percent of all law students,18 and over 50 percent of the associates at large law firms.19

  Progress is evident behind the podium, too. In 1919, Barbara Nachtrieb Armstrong was appointed to the Berkeley (Boalt Hall) law faculty.20 Made an assistant professor in 1923, Armstrong was the first woman ever to gain a tenure-track post at an American Bar Association–approved law school.21 Over two decades later (1945), only two other women had made their way to the tenure track at schools belonging to the Association of American Law Schools.22

  When I was appointed to the Rutgers Law School faculty in 1963, women headed for tenure at AALS schools still numbered under twenty.23 But by 1990, more than 20 percent of law professors were women.24 Today, women account for roughly 19 percent of law school deans, 25 percent of tenured professors, and about 35 percent of law faculty members overall.25

  Strides in law practice are similarly marked. Only in Alabama has a woman yet to be elected president of the state bar association. More than 160 women have already served as state bar presidents. Two women have completed terms as president of the American Bar Association, and a third began her term as ABA president this very week. Notably, a woman was chosen to chair the House of Delegates under each female ABA president.26

  In a November 2005 lecture at the Association of the Bar of the City of New York, Harvard Law School’s dean, Elena Kagan, recounted, much as I have just done, the enormous progress women have made at the Bar. But, she added, the news is not all good: “[W]omen lawyers still lag far behind men on most measures of success,” she observed.27 Speaking first of the law school setting, Dean Kagan referred to a student report on women’s experiences. The report tracked similar surveys at other top-ranking law schools. Women are less likely to volunteer in class, the report noted, and they gain fewer academic honors. Asked if they consider themselves in the top 20 percent of the class in legal reasoning, 33 percent of the men answered yes, in contrast to 15 percent of the women. Women also rated themselves lower on ability to “think quickly on their feet, argue orally, write briefs, and persuade others.”28 “What’s left,” Dean Kagan pondered.

  Dean Kagan’s colleague Lani Guinier, who studied women’s situation at the University of Pennsylvania Law School, recorded this comment by a woman studying at that school: “Guys think law school is hard, and we just think we’re stupid.”29 (Law schools are hardly unique in this regard. For example, a Brandeis University geneticist, Gregory Petsko, recently observed that, “[a]lmost without exception, the talented women [he had] known have believed they had less ability than they actually had,” while “almost without exception, the talented men [he had] known believed they had more.”)30

  Turning to life after law school, Dean Kagan got to the bottom line: “Women lawyers are not assuming leadership roles in proportion to their numbers.”31 Although about 30 percent of all lawyers, women account for only some 15 percent of general counsels of Fortune 500 companies and 17 percent of law firm partners.32

  Another revealing difference. In the Harvard student study, women outnumbered men two to one in reporting that “helping others” was an important consideration in choosing law as a career. On that score, Dean Kagan suggested, shouldn’t we be acting affirmatively to encourage men to care more about public service endeavors.33 Dean Kagan posed these questions: Were women disproportionately interested in public service because they found such work “more personally fulfilling”? Or, is public service employment “more open to [women]—more likely to provide opportunities for advancement and recognition, . . . more flexible regarding leave-taking and reentry”?34

  There’s a problem in this picture of women as law students and lawyers, one that social scientists can help us to fathom. Last September, the New York Times did a replay of a story it runs from time to time on what women really want, and why they trail men in professional accomplishment. In a recent survey of female undergraduates at Yale, the Times recounted, roughly 60 percent said they would stop, or cut back on, work once they had children.35 One of the letters to the editor prompted by the piece commented: “I’m glad that the things I declared when I was 19 . . . didn’t make front-page news.”36 Dean Kagan countered with a study published in 2005 as a Harvard Business Review research report. The study made this notable finding: 93 percent of women in high-caliber employment who have stepped out of the labor force for some time want to return.37

  Turning to my own line of work, women began to show up on the bench in the twentieth century’s middle years. In 1995, I wrote in praise of three door openers in the federal court system: Florence Ellinwood Allen, appointed to the U.S. Court of Appeals for the Sixth Circuit in 1934; Burnita Shelton Matthews, appointed to the U.S. District Court for the District of Columbia in 1949; and Shirley Mount Hufstedler, appointed to the U.S. Court of Appeals for the Ninth Circuit in 1968.38 To avoid intruding excessively on my co-panelists’ time, but as a reminder of not-so-long-ago days, I will speak here only of the first of these waypavers, Florence Allen, first woman ever to serve on an Article III federal court.

  Before joining
the federal bench, Allen achieved many “firsts” in Ohio: first female assistant prosecutor in the country; first woman elected to sit on a court of general jurisdiction; and the nation’s first female state supreme court justice.39 Long tenured on the Sixth Circuit, Allen eventually served as that circuit’s chief judge, another first.40

  It was rumored that Allen might become the first female U.S. Supreme Court Justice. In 1949, two vacancies opened on the Court. President Truman reportedly was not opposed to the idea of filling one of them with a woman.41 But, as political strategist India Edwards, head of the Women’s Division of the Democratic National Committee, recalled, Truman ultimately decided the time was not ripe. Edwards wrote of the brethren’s reaction when Truman sought their advice:

  [A] woman as a Justice . . . would make it difficult for [the other Justices] to meet informally with robes, and perhaps shoes, off, shirt collars unbuttoned and discuss their problems and come to decisions. I am certain that the old line about there being no sanitary arrangement for a female Justice was also included in their reasons for not wanting a woman. . . .42

  (Times have indeed changed: to mark my 1993 appointment to the Supreme Court, my colleagues ordered the installation of a women’s bathroom in the Justices’ robing room, its size precisely the same as the men’s.)

  The founding of the National Association of Women Judges in 1978 coincided with, and helped to advance, the end of the days when women appeared on the bench as one-at-a-time curiosities. At the federal level, the administrations of Kennedy, Johnson, Nixon, and Ford combined had appointed just six women to Article III courts.43 When President Carter took office in 1977, only one woman (Shirley Hufstedler) sat among the 97 judges on the federal courts of appeals and only five among the 399 district court judges.44 President Carter appointed a barrier-breaking number of women—40—to lifetime federal judgeships.45