The judicial system, in one form or another, has historically played a vital role in shaping the contours of, and providing direction for, democratic societies’ enactments of laws required to fashion their governing authority, maintain a continuously functioning social order, and provide for an equitable system of commerce. As a society grows and matures, these crucial elements require harmonizing individual interests so that the legal order recognizes the evolving social status of individuals, while continuing to give the government and financial systems room to expand and adapt to meet the developing needs of more complex and larger populations. This correction is critical if a society is to maintain a healthy and continuously responsive civil legal system over time, one that is truly a reflection of the people it serves.
Despite the rejection of European models of government, much of the social order of the formative period of American life was borrowed directly from our English forbearers. The ownership of property, the right to be educated, the age of marriage and its attendant rights and responsibilities, were relegated to the exclusive purview of the male head of household. In the more agrarian de-centralized lifestyle of the time, an almost entirely male-dominated workforce, economy, and family structure could look to its all-male judicial counterparts to render legal interpretations and resolve disputes that would conform to the belief system of this homogenous male group. The transition to an urbanized, industrial society, and the resulting evolution of broader and more inclusive concepts of the rights of the individual irrespective of gender have called for the law, and in turn the judicial system, to not just expand its mind, but to expand its ranks. The rules of the old game had to change to more closely and integrally reflect the diverse perspectives of these groups, formerly voiceless members of society, whose interests would now be considered when the courts were called on to decide how the law should be interpreted and applied.
The inclusion of woman in the American legal system still remained a fairly alien concept. Before 1900, many states prohibited women from becoming lawyers. In 1869, Arabella Mansfield was the first woman in the United States to be admitted to the bar in her home state of Iowa. In contrast, three years later Myra Bradwell was denied admission to the bar of Illinois by the state Supreme Court based on her gender, and her inability as a woman to enter into a contract without the permission of her husband. In the decision denying her petition, the U.S. Supreme Court opined:
The paramount destiny and mission of woman are to fulfil [sic] 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 on exceptional cases. Bradwell v. Illinois, 83 U.S. 130, 141-42 (1873) (Bradley, J., concurring).
The Bradwell case is a classic example of a purely social concept being engrafted into the law. It would have been unthinkable at this time for the all-male U.S. Supreme Court to rule that the right to contract should be available to any legally competent adult regardless of gender or marital status, which would have removed the legal impediment upon which their decision rested. Changing the law is easy, changing minds is much harder.
The ratification of the Nineteenth Amendment in 1920, giving women the right to vote, would see the beginnings of women entering the legal profession, as broader opportunities, including admission to higher education, gradually began to increase. Elite law schools such as Harvard, however, would not admit a woman to their class ranks until after 1950, and many that did offer female admission at that time had strict quota systems in place, reserving two or three openings for female students. Female admissions to law school would not increase by significant numbers until the 1970s, when, in conjunction with the Civil Rights Act of 1964 and the creation of Title VII, the federal government began requiring federal contractors to diversify their workforce on racial and gender basis. This in turn placed pressure on academia to make higher education available to more diverse groups of applicants, and women became the beneficiaries of this novel process of inclusion.
As the percentage of women admitted to the practice of law gradually increased over the next 50+ years, the ranks of woman on the bench began to expand. Women now represent approximately 34% of the judiciary nationwide. This is in contrast to our 50% representation in the population So what must we do to keep the ground that we have, while continuing to increase our numbers to reflect the population we serve, and why does it matter?
In order to continue down the road to gender parity in the legal profession, women must continue to be admitted to law school and subsequently to the bar for admission, at the current rate. In 2000, 48% of all law students, 33 percent of law professors, and 13% of law school deans were women. By 2021, those numbers had increased to 55% of law students, 45% of law professors, and 42% of law school deans. Sitting female judges can greatly influence the number of women who eventually enter the practice, and subsequently become judges, by getting involved in legal education. The growing number of law schools headed by woman are sensitive to the concept of mentoring and example. Adjunct teaching, involvement with clinical practice, guest lecturing, and even holding court for the benefit of law students, are vital ways to connect young, incoming female attorneys to the prospect of a career on the bench. The judiciary remains one of the sole professional avenues for women in which equal pay and benefits are guaranteed, and as such can provide incentives for a woman to enter into that level of public service. Continued recruitment will guarantee that legal concepts remain free of the gender bias that had historically held women back from professional and economic opportunities, and distorted the law in ways that had empowered others to withhold the fundamental rights that should belong to us all.
Why does it matter that women remain a vital part of the judicial system? Women in the judiciary represent the concept of inclusion in a very visible way. Unquestionably we are very different in a myriad number of ways from men, and therefore can provide a very different but equally relevant perspective in terms of life experience, thought process, and insight. These differing outlooks given consideration in judicial decision making can focus the concept of neutrality of the law from a different point of view. If the law is to remain free from bias, the addition of women in the decision-making mechanism is critical, and provides the general population with a reasonable assurance that their issues as individuals are being considered when important legal concepts are up for debate. As long as the law remains cognizant of status, gender bias will continue to be issue that requires mitigation, and the equal inclusion of women in the judicial decision-making process will continue to create a higher level of trust in our legal institutions.
Studies of the composition of appellate courts reveal that when women are present in the deliberative process, their perspective provides input that may help the other judges to see the same problem from a very different angle. A diversity of life experience can greatly enhance the conversation between judges, and can challenge or alter the facts of a matter that the court chooses to see. Imagine if the Supreme Court in Bradwell had a single female member. Perhaps the focus on the legal question of a competent individual’s ability to contract, based not on the accident of gender or marital status, would have been determinative of a different outcome.
Lest we forget, equality is fundamental to our form of government, and by extension our legal system. The concept of equality has definitely evolved since the inception of our society. If the rights that are guaranteed to us by our foundational documents as we understand them today are to withstand the test of time, and reflect our continually growing understanding of the many roles that women can play in an industrialized world, the full inclusion of women in the judicial system will be vital to maintaining the equitable application of the law for everyone, regardless of gender. A bench that fails to reflect the public it serves is ill-equipped to serve that public. We have done well, but we are not done yet.
