If you ask most people about the history of women and the U.S. Supreme Court, they are likely to point to the 1981 nomination of Sandra Day O’Connor as the first female justice. That was a watershed moment in our nation’s history. But to fully understand the relationship of women to the U.S. Supreme Court, we must reach back much farther. This story begins, as all stories about American history inevitably do, during the colonial period.
While it is true that women were generally prohibited from practicing law in the early years of the nation, there were some notable exceptions. Margaret Brent is one such exception.
Brent and her family were distantly related to the Calverts, the Catholic ruling family of Maryland. She migrated to Maryland in 1638 with her sisters; and she traveled as the head of her own household, which was unusual for a woman at the time. Brent later acquired from her brother 1,000 acres of land. Because she never married, she retained certain legal rights that women, under coverture laws in operation at the time, typically lost once married.
As a single woman, Brent could represent herself in court, and she appeared before courts several times to file suits against her debtors. While not herself a lawyer, she was one of the first women to appear in court to defend her own legal and financial rights. In addition to representing herself within the courts, Brent became the first woman on record to demand the right to vote in an English colony, appearing before the Maryland Assembly in 1647.
Sources: Pamela Barnes Craig, American Women: Resources from the Law Library, Library of Congress (June 16, 2018); National Women’s History Museum, https://www.nwhm.org/education-resources/biography/biographies/margaret-brent/ (last visited Aug. 19, 2020).
Lucy Terry was stolen from Africa as an infant and sold into slavery in Massachusetts. She later married Abijah Prince, a free black man who purchased her freedom. After their marriage, the Princes moved to Vermont, where they owned land and property. They were frequently put in a position to defend their land rights against others. Lucy, who was well-known for her oratorical skills, was often the one speaking on behalf of the family, including before the Council of Guilford, Vermont, where the family lived. Lucy Terry Prince, PBS (last visited Aug. 19, 2020); David R. Proper, Lucy Terry Prince: “Singer of History,” 9 Contributions in Black Studies 187 (1992).
In 1796, Prince became the first black woman in America to argue before a Supreme Court justice and influence law. The case arose from a land dispute, and Lucy argued against two leading lawyers. Chief Justice Samuel Chase, who presided over the Vermont court, said Prince “made a better argument than he had ever heard from a lawyer in Vermont.” Proper, supra, at 201; see also Lucy Terry Prince, PBS, supra.
As legal study and legal practice became more standardized, women found themselves denied admission to both law schools and state bar associations. After the Illinois Supreme Court denied Myra Bradwell admission to the Illinois Bar in 1872 (despite Bradwell passing the state bar exam), she filed a petition with the U.S. Supreme Court appealing the decision. She argued that the Illinois Supreme Court’s decision violated the “privileges or immunities clause” of the Fourteenth Amendment. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).
In its opinion in Bradwell v. Illinois, the Supreme Court held that Illinois’s refusal to grant a woman a license to practice law did not violate any provision of the U.S. Constitution, and further held that the right to practice law in state court is not a privilege or immunity of citizenship within the meaning of the first section of the Fourteenth Amendment.
In an opinion concurring in the Court’s judgment, Justice Bradley went further and said,
[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector 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.
Bradwell, 83 U.S. at 141 (Bradley, J., concurring).
In 1876, a woman would return to the Supreme Court. This time, she did so with the aim of gaining admission to the U.S. Supreme Court Bar. That woman was Belva Lockwood. Her pathway to the Supreme Court Bar was full of obstacles, all of which she overcame with tenacity.
Lockwood applied to the Columbian Law School in Washington, D.C., in 1870. The school’s trustees denied her admission, citing their belief that she would prove a distraction to the male students. She was later accepted to the new National University Law School (now part of The George Washington University). She completed her legal studies in 1873, but the school was unwilling to grant her a diploma on the basis of her gender. Without a diploma, Lockwood was unable to gain admittance to the bar.
In September 1873, Lockwood wrote a letter to President Ulysses S. Grant, who also served as president of National University, appealing to him to intervene on her behalf. She explained that she had passed all of her courses and deserved to be awarded a diploma. A week after sending the letter, Lockwood received her diploma. She was 43. With her admission to the District of Columbia Bar, Lockwood became one of the first female lawyers in the United States.
In 1876, she sought to gain admission to the U.S. Supreme Court Bar. After applying, she received a note from Chief Justice Morrison R. Waite, stating, “By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counselors.”
Never one to accept the status quo, Lockwood drafted a bill that would require women to have the same access as male lawyers to the Supreme Court Bar. After she vigorously lobbied Congress for several years, in 1879 Congress passed and President Rutherford B. Hayes signed a law requiring that all qualified women lawyers be admitted to practice before the U.S. Supreme Court.
Lockwood became the first woman member of the U.S. Supreme Court Bar and would become the first woman to argue before the Court—in the case of Kaiser v. Stickney. S. Ct. No. 90 (Dec. 13, 1880).
Based on research conducted by Marlene Trestman, Kimberly Robinson, Emma Shainwald, and me, a total of 758 women have been identified who have argued a total of 1,523 times before the full U.S. Supreme Court since Belva Lockwood became the first woman to do so in 1880. According to Robinson, the number of female advocates in recent terms has ranged from 12 percent to 21 percent. While progress has been made since 1880, there is a quite a bit of work that still needs to be done to achieve gender parity regarding who argues before the Supreme Court. Julie Silverbrook, Belva Ann Lockwood: A Supreme Court Trailblazer, Julie Silverbrook’s Blog (Oct. 7, 2016); Rebels at the Supreme Court Bar, Mayer Brown (last visited Aug. 19, 2020); Marlene Trestman, First 101 Women to Argue at the United States Supreme Court, Supreme Court Historical Soc’y (July 10, 2014); Kimberly Robinson, An Uphill Battle for Women Supreme Court Advocates Gets Steeper, Bloomberg Law (May 15, 2020). (The full list of women advocates is on file with the author and available upon request.)
