Women Advocates Before the Supreme Court
CLARE CUSHMAN
Legend has it that when Dolley Madison and a group of the First Lady’s friends arrived one day at the Supreme Court in the middle of an oral argument, the great advocate Daniel Webster stopped his oration, bowed to the ladies, and started again from the beginning. Although such excessive gallantry was not standard practice in the early nineteenth century, it was customary for wives of Washington dignitaries to dress up in the latest fashions and come to the Supreme Court to observe oral arguments. The passive, decorative role women then other attorneys, and to argue cases before the played in the life of the Court contrasts Bench. sharply with the professional one they play Before examining the contributions of today. This gradual transformation did not the women advocates who followed in Lock- begin until 1880, ninety-one years after the wood’s footsteps, however, it is appropriate Court’s inception, when a woman was finally to consider claims that two earlier women, permitted to leave the spectator ranks and join Lucy Terry Prince and Myra Clark Gaines— the show. That was the year that Belva A. neither of whom were lawyers—personally Lockwood became the first female attorney to pleaded their own land dispute cases before argue a case before the Supreme Court.1 The the Supreme Court. No official documents previous year she had forced the Court, have been discovered to support these through congressional intervention, to license claims. women to practice before it.2 It had not been an easy task.3 Lockwood’s admission opened Lucy Terry Prince (c. 1725–1821) the doors for successive women attorneys to file petitions and briefs at the Supreme Court, Lucy Terry Prince, an African-American, is to join its bar and to move the admission of usually hailed in reference books as the first 68 JOURNAL OF SUPREME COURT HISTORY
No official record has been found documenting the alleged oral argument of Lucy Terry Prince, a freed slave, before Justice Samuel Chase in 1796. This oil portrait of Prince, one of the first published African-American poets, is purely imaginary; no likeness of her exists. WOMEN ADVOCATES BEFORE THE SUPREME COURT 69
woman to address the Supreme Court of the United States,” but there is no evidence to United States. The popularizer of this legend suggest that she made the trip to Philadelphia is Massachusetts historian George Sheldon, (where the Court was then lodged) to do so. who described the event in his 1893 article Sheldon based his assumption on a letter writ- “Negro Slavery in Old Deerfield,” which was ten by a Guilford historian named Rodney published in New England Magazine and Field—who was neither an eyewitness to the widely circulated. He wrote that Prince was event nor a contemporary of the Princes—that permitted to argue her Vermont land claim simply stated that she appeared before a suit in 1796 before the “Supreme Court of the “United States Court.”7 United States . . . presided over by [Justice] A more likely scenario, given Chase’s fa- Samuel Chase of Maryland.” Apparently, vorable comparison of Prince to other Ver- Chase was so impressed by Prince’s elo- mont lawyers, would be that she argued be- quence that he complimented her on making fore Justice Chase when he was riding circuit “a better argument than he had heard from any in Vermont. (In those days, circuit courts were lawyer at the Vermont bar.”4 presided over by one Supreme Court Justice Her performance would have been all the and one district court judge). Justice Chase more extraordinary considering her back- did sit at one session of court in Vermont ground. She was taken from Africa as a child while on circuit, at Bennington in May 1796, in 1730 and eventually sold to a Deerfield, which coincides with the time at which the lit- MA, innkeeper named Ebenezer Wells. She igation would have taken place.8 However, purchased her freedom in 1756 after her mar- the court records show no cases with which riage to Abijah Prince, a free black. In 1762, a Prince or Bronson were associated. Perhaps wealthy Deerfield landowner deeded Abijah Lucy Terry Prince was a principal or a witness Prince 100 acres of land in the newly opened in a federal district court or the state superior territory of Guilford, VT. The Princes and or supreme court. their six children took up residence there in There is no doubt that Prince, an eloquent the 1780s. Hungry for land, they had also ob- storyteller renowned for her keen memory, tained a grant of 300 acres of wilderness tract must have been an effective oral advocate be- in nearby Sunderland. fore whatever court she did appear. In fact, The predatory behavior of a wealthy she merits a place in history whether or not Sunderland neighbor, Colonel Eli Bronson, she argued before Justice Chase. Her lyrical was the basis for the legendary suit. He set up thirty-line doggerel, “The Bars Fight,” which a claim to the Princes’ property and, accord- accurately recounts the dramatic events sur- ing to nineteenth-century Sunderland histo- rounding an Indian raid on Deerfield that she rian Giles B. Bacon, “by repeated law suits witnessed in 1746, was printed posthumously obtained about one-half of the home lot, and in 1855. This accomplishment distinguishes had not the town interposed [the Princes] her as one of the first published Afri- would have lost the whole.”5 A prominent cit- can-American poets.9 izen, Bronson allegedly hired Royall Tyler, a future chief justice of the Vermont Supreme Myra Clark Gaines (1803–1885) Court, and Stephen R. Bradley, a future Ver- mont senator, as his counsel. The Princes The other woman mistakenly reported to were said to have engaged Isaac Tichenor, a have pleaded her land claim case before the future governor of the state, to defend their Supreme Court is perpetual litigant Myra claim.6 Clark Gaines. The gallant orator Daniel In his article, Sheldon wrote that Prince Webster is alleged to have been the opposing argued before “the Supreme Court of the advocate.10 70 JOURNAL OF SUPREME COURT HISTORY
The land dispute case of Myra Clark Gaines, involving her claim to valuable New Orleans property, came before some thirty different Justices, who issued thirteen separate rulings. WOMEN ADVOCATES BEFORE THE SUPREME COURT 71
This myth probably arose because Gaines Pioneers of the Bar and her heirs filed an astonishing twenty-one motions before the Court between 1836 and Belva Lockwood thus remains unchallenged 1891.11 Some thirty different Justices heard as the first woman either to file a brief or pres- the case, issuing thirteen decisions.12 Passion- ent oral argument at the Supreme Court. Sub- ate and dogged in her pursuit of her inheri- sequent female advocates also qualified as pi- tance claim to valuable New Orleans proper- oneers in various ways. ties, Gaines was wealthy and shrewd enough Opposing the proposed sale by Congress to engage the most seasoned oral advocates to of her tribe’s sacred burial ground in Kansas argue on her behalf.13 Over a period of five City, KS, Lyda Burton Conley (1874–1946), decades she employed more than thirty law- of Wyandotte and English ancestry, became yers, seventeen of whom died in her service. in 1910 the first Native American woman to There is no evidence, however, that she ever argue before the Supreme Court. (The first pleaded her own case against Daniel Webster Native American was probably Elias C. or any other advocate. (In fact, Webster was Boudinot, a Cherokee, in 1871.) Along with one of the advocates she retained in her ser- her sisters Helena and Ida, Conley protested vice.) However, she did present her own argu- Congress’s proposal in 1906 to transfer the ment in a state court trial, stepping in after her bodies and sell off the Huron Cemetery, counsel, infuriated by the judge’s bias, which would have violated the government’s stormed out. Gaines was also active in helping treaty with her tribe. The Conley sisters pad- her lawyers prepare briefs. locked themselves in the cemetery, built a for- At issue was the mysterious disappear- tified shack to dwell in, and fended off gov- ance of a will drafted by her Irish immigrant ernment officials and realtors (but not other father, Daniel Clark, when he died in 1813. In Wyandottes) with their father’s shotgun for the will, Clark named Myra his legitimate seven years.14 daughter and heir to the large fortune he had Conley had long realized the value of the accumulated. Her Creole mother, Zulime coveted piece of real estate where her parents Carriere, held no record of her marriage to and a sister were buried, and had equipped Clark, which they had kept secret because she herself with a law degree from Kansas City had not obtained an annulment from her first School of Law in 1902 to defend it by peace- husband, a French wine merchant and biga- ful means. She unsuccessfully filed suit for a mist. Upon Clark’s death the will disap- permanent injunction in district court against peared, and his sisters and business partners the Secretary of the Interior. After losing an claimed that Myra was illegitimate and there- appeal, she left her sisters to hold the fort in fore ineligible to inherit from her father under 1909 while she traveled to Washington to Louisiana’s unique civil code. Because hun- argue the case before the Supreme Court. dreds of New Orleans residents stood to lose Conley argued pro se; she did not become a their land if she won her claim, she was forced member of the Supreme Court bar until to resort constantly to federal courts to obtain 1915.15 A draft of the argument she delivered the fair trial that hostile local courts did not al- at the Court, written in her own hand, reveals ways provide. The Supreme Court held that that she used biblical imagery to enhance her Myra Clark Gaines was her father’s legitimate plea. “Like Jacob of old I too, when I shall be heir shortly before she died in 1885, deeply in gathered unto my people, desire that they bury debt from a lifetime of legal expenses. It took me with my fathers in Huron Cemetery, the a few more lawsuits for her grandchildren to most sacred and hallowed spot on earth to force the city of New Orleans to pay them me,” she wrote. “I cannot believe,” she added, their due. “that this is superstitious reverence, any more 72 JOURNAL OF SUPREME COURT HISTORY
lumbia.19 The first black woman to petition the Court pro se was Jama A. White, who con- tested her expulsion from Portia Law School. She was expelled for neglecting to tell a coal and groceries dealer that she was separated from her husband and for refusing to pay for the merchandise herself once her marital sta- tus was discovered. (She had billed her hus- band’s account despite their separation be- cause a court had ordered her husband to pay her expenses.) The Massachusetts Supreme Court rejected White’s claim against the law school, and, acting as her own attorney, she petitioned the U.S. Supreme Court unsuccess- fully in 1933.20 It is not known which black woman law- yer filed the first brief or argued the first case in the Supreme Court. (The first African- American man to argue was probably Everett Lyda Burton Conley argued a case before the J. Waring, in 1890.21) One strong possibility Supreme Court in 1910 demanding that the U.S. is Constance Baker Motley, who, as associate government honor a treaty with her tribe safe- guarding its sacred burial ground, the Huron ceme- counsel for the NAACP Legal Defense and tery in Kansas City, KS. Education Fund from 1945 to 1966, argued ten desegregation cases, winning nine. She helped prepare the briefs in the landmark than I can believe that the reverence every case of Brown v. Board of Education, which true American has for the grave of Washing- found segregated schools unconstitutional. ton at Mount Vernon is a superstitious rever- She also argued James Meredith’s suit for ence.”16 admission to the University of Mississippi In Conley v. Ballinger, Secretary of the and Charlayne Hunter-Gault’s case that Interior (1910), the Court held that in making forced the University of Georgia to open its the treaty the United States had “bound itself doors to black students. Impressed with her only by honor, not by law” and that the oral arguments before the Supreme Court, Wyandotte tribe had no legal right to the cem- Attorney General Ramsey Clark persuaded etery.17 However, the Conley sisters’ tena- President Lyndon B. Johnson to appoint cious defense of their ancestors’ graves so Motley to be the first black woman federal swayed public opinion that Congress repealed judge in 1966.22 the sale, which had since been transacted. The The first women to argue against each three sisters were eventually buried in the other in the Supreme Court were Elizabeth R. Huron Cemetery, which is now a green oasis Rindskopf and Dorothy Toth Beasley, the at- in downtown Kansas City, Kansas.18 torneys in Paul J. Bell, Jr. v. R. H. Burson, Di- The first female African-American law- rector, Georgia Department of Public Safety yer to join the Supreme Court bar—Chicago (1971).23 Beasley, an assistant attorney gen- Law School–trained Violette N. Ander- eral of Georgia, opposed a woman advocate son—did so eleven years after Conley. Ander- again two years later in Doe v. Bolton.24 Her son was admitted in 1926 on motion of James opponent, Margie Hames, representing abor- A. Cobb, a black judge in the District of Co- tion-seeker Mary Doe, prevailed, and the WOMEN ADVOCATES BEFORE THE SUPREME COURT 73
humor was met with stony silence.26 Hames found Floyd’s comment “very chauvinistic,” and she worried that Chief Justice Warren E. Burger “was going to come right off the bench at him.” The Chief Justice “glared him down,” remembers Hames. “[Floyd] got the point right away that this was not appropriate in court.”27 There was no place for gallantry in the 1977 case of Smith v. Organization of Foster Families for Equality & Reform, which marked the first time four women had collec- tively argued one case. The counsel tables had never before been so “female” as when Louise Gruner Gans, Helen L. Buttenwieser, and Maria L. Marcus successfully represented in- dividual foster families and an organization of foster parents in their suit for an injunction against New York City’s procedures for re- moving foster children and attorney Marcia Robinson Lowry argued the city’s case.28 As associate counsel for the NAACP Legal Defense and Education Fund, Inc. from 1945 to 1966, Con- stance Baker Motley argued ten segregation cases Women of the Office of Solicitor before the Supreme Court. She was probably the first black woman attorney to argue a Supreme Court General case. The best source of women advocates has been the Office of the Solicitor General (OSG), the Court struck down a Georgia law that allowed elite corps that represents the United States in only residents of the state to obtain abortions. the Supreme Court. The OSG has supplied a “She didn’t get it simply because she was fe- steady trickle of women to argue the govern- male,” explained Attorney General Arthur ment’s position since 1972, when Harriet Bolton as to why Beasley, the only female out Sturtevant Shapiro was hired as the first regu- of a staff of some twenty-six deputies, was lar woman attorney. There was at least one given the task of defending Georgia’s 1968 earlier instance, however, of a woman on the abortion law.25 Beasley, who had briefly Solicitor General’s staff appearing before the worked with Hames in private practice, was Supreme Court, although that episode seems simply considered the best advocate for the to be an exception: In 1949, Patricia Collins job. successfully argued Johnson v. Shaugh- Doe was argued the same day as Roe v. nessy,29 an immigration case, when she was a Wade, its companion case. Jay Floyd, who de- lawyer in the Office of the Assistant Solicitor fended the Texas anti-abortion statute in Roe, General, which was subsequently renamed argued against Sarah Weddington and her the Office of Legal Counsel. co-counsel Linda N. Coffee. “It’s an old The reason Collins got this assignment is joke,” chided Floyd when he began his Roe revealing. When Robert Ginnane, an associate presentation, “but when a man argues against in the OSG who had been assigned the case, two beautiful ladies like this, they are going to was called suddenly to France, Collins’s hus- have the last word.” His misplaced attempt at band, Assistant Attorney General Sal 74 JOURNAL OF SUPREME COURT HISTORY
Andretta, prevailed on Solicitor General Schlesinger v. Ballard (1975) and Newport Philip Perlman to select his wife to step in and News Shipbuilding & Dry Dock Co. v. EEOC argue the government’s case. Collins (now (1983).32 Her record puts her just ahead of Patricia Dwinnell Butler) recalls that the Mar- Amy L. Wax, now a law professor, who ar- shal of the Supreme Court complimented her gued fifteen cases for the government during on her performance: “with that [stentorian] her tenure at the OSG from 1987 to 1994. voice of yours, you can come back any time.” They may both soon be overtaken by Assis- However, Justice Felix Frankfurter’s needling tant Solicitor General Beth S. Brinkmann, did not encourage her to request assignment who as of 1999 had argued thirteen cases for further oral arguments.30 since joining the OSG in 1993.33 Twenty-three years after that episode, Several former OSG staffers continue to Shapiro joined the staff as an assistant solici- specialize in appellate advocacy and to appear tor general and paved the way for other before the Supreme Court. Kathryn A. women attorneys at the OSG. In 1999, five Oberly, who argued ten cases in her four-year out of twenty lawyers on the staff were stint at the OSG from 1982 to 1986, special- women.31 Now more than 70, Shapiro is a sea- izes in representing accounting firms. In soned advocate who holds the record among 1989, she argued for Price Waterhouse in the women staffers for most arguments— high-profile Supreme Court case brought by seventeen. In terms of gender law cases, Ann Hopkins, who successfully claimed she Shapiro argued the government’s position in had been denied partnership because of her
When the assistant solicitor general assigned to an immigration case was unexpectedly called out of the country in 1949, Patricia H. Collins (now Patricia Dwinnell Butler, right) took over and successfully argued the government’s case before the Supreme Court. Her husband, Assistant Attorney General Sal Andretta (second from left), had persuaded Solicitor General Phil Pearlman (left) to reassign her the case. Attorney General Tom C. Clark is standing between the Andrettas. WOMEN ADVOCATES BEFORE THE SUPREME COURT 75
In 1972, Harriet Sturtevant Shapiro (back row, second from left) became the first woman attorney to work at the Office of the Solicitor General (OSG), the elite corps that represents the United States before the Supreme Court. Pictured in this 1972 OSG staff photo: (back row) William Bradford Reynolds, Shapiro, Andrew Frey, Harry Sachse, Edward Korman, Mark Evans, Keith Jones, Allen Tuttle, and Ray Randolph; (front row) Sam Huntington, Philip Lacovara, Daniel Friedman, Solicitor General Erwin Griswold, Lawrence Wallace, and Richard Stone. Shapiro has since argued seventeen cases before the Supreme Court, more than any other woman from the OSG.
gender.34 Maureen E. Mahoney argued before appointed to the top job at the Justice Depart- the Supreme Court eight times when she ment. served as a deputy solicitor general; she has returned to argue two more cases before the Most Appearances Before the Court Court since leaving the OSG in 1993 to join a law firm.35 Mahoney also argued one case be- These contemporary women advocates do not fore the Court prior to joining the OSG, hav- compare, in terms of numbers of cases argued, ing been invited by the Supreme Court with a handful of pioneers who worked as ap- through a special appointment to present ar- pellate lawyers for various branches of the fed- gument.36 She was probably the first woman eral government.39 The earliest of these pro- invited by the Court to appear as an advo- fessional advocates was Mabel Walker cate.37 Willebrandt (1889–1963), who served as as- There has yet to be a female solicitor gen- sistant attorney general in the 1920s and prose- eral, but the first female attorney general, cuted scores of violators of the National Prohi- Janet Reno, has argued once before the Su- bition Act.40 Because the Act was difficult to preme Court. In 1996, she chose to present the enforce, she spearheaded the use of tax laws to government’s position, as amicus curiae,in prosecute illegal distributors of liquor. “Prohi- Maryland v. Wilson,38 three years after being bition Portia,” as she was nicknamed, argued 76 JOURNAL OF SUPREME COURT HISTORY
As an assistant attorney general during Prohibition, Mabel Walker Willebrandt spearheaded the use of tax laws to prosecute illegal distributors of liquor. She sub- mitted 278 cases on certiorari to the Supreme Court during her career at the Department of Justice. twenty-two times before the Supreme Court, 1929. A brief they filed on May 13, 1929 all Prohibition- or tax-related cases, before re- (along with Attorney General William D. signing from the Justice Department in 1929.41 Mitchell and special assistant attorney general Willebrandt’s service at the Department Alfred A. Wheat) for the Commissioner of In- of Justice overlapped for one year with that of ternal Revenue was likely the first instance of Helen R. Carloss (1890–1948), another fe- two women’s names appearing on the same male public servant who frequently repre- Supreme Court brief.44 sented the United States before the Supreme In his memoir, The Court Years, Court. Carloss left her native Mississippi to 1939–1975, Justice William O. Douglas de- attend law school at George Washington Uni- scribed Carloss as “a gray-haired lady from versity and was then hired to handle tax litiga- Mississippi.” “If seen by a stranger,” he tion for the federal government. She earned mused, such an excellent reputation for her ability to collect taxes from delinquent payers that her she would doubtless be identified as opponents reportedly hired “the best men law- a housewife. But she was an advo- yers” to prepare their cases.42 As a litigator at cate par excellence—brief, lucid, the Internal Revenue Service from 1928 to relevant and powerful. Typical of the 1947, Carloss argued sixteen times43 before complex and important questions the Supreme Court and filed countless briefs, which she presented is Kirby Petro- including several in tax cases that were jointly leum Co. v. Commissioner (326 U.S. prepared with Willebrandt (among others) in 599) concerning the right of the les- WOMEN ADVOCATES BEFORE THE SUPREME COURT 77
sor of oil and gas land to the deple- As [Chief Justice] Earl Warren said tion allowance where the lease is for at a dinner honoring her retirement, a cash bonus, a royalty and a share of she helped put flesh on the bare the net profits.45 bones of the Fair Labor Standards Act and made it a viable statutory Another outstanding appellate lawyer scheme.47 and dedicated public servant, Bessie Margolin (1909–1996), is best remembered for her tal- The all-time women’s record for argu- ent for oral argument. She joined the Depart- ments before the Supreme Court belongs to ment of Labor shortly after passage of the Beatrice Rosenberg (1908–1989), a low-pro- 1938 Fair Labor Standards Act and special- file but brilliant government attorney who, as ized in interpreting that New Deal law, which an authority on search and seizure, argued 48 spelled out federal wage and hour policy. more than thirty cases before the high court. Margolin rose to become assistant solicitor in (The men’s twentieth-century record belongs charge of Supreme Court litigation, and then, to Deputy Solicitor General Lawrence G. in 1963, was promoted to associate solicitor Wallace, who has argued more than 150 for the Division of Fair Labor Standards. As cases.) In his autobiography, Justice Douglas such, she was responsible for all litigation remembers Rosenberg as being superior to under the Fair Labor Standards Act, the Equal many better known appellate lawyers with Pay Act, and the Age Discrimination in Em- grand reputations. “[L]esser lights and law- ployment Act. Margolin argued twenty-seven yers not well known brought greater distinc- cases before the Supreme Court.46 tion to advocacy at the appellate level,” he The daughter of Russian Jewish immi- wrote. “Oscar Davis ...,Daniel Friedman grants, Margolin was born in New York City, and Beatrice Rosenberg (all of the Depart- but was sent to a Jewish Children’s Home in ment of Justice) made more enduring contri- New Orleans after her mother died. She at- tended Tulane University and graduated from its law school. She then pursued a doctorate in law at Yale University. Margolin started her career working on the legal staff at the Ten- nessee Valley Authority, the New Deal pro- ject intended to bring electricity to rural com- munities. Justice Douglas remembered Margolin as crisp in her speech and penetrating in her analyses, reducing complex fac- tual situations to simple, orderly problems. Typical perhaps of the worrisome but important issues which she argued was Phillips Co. v. Walling (324 U.S. 490), holding that an exemption from the Fair Labor Standards Act of employees “en- gaged in any retail...establish- A brilliant attorney in the criminal division of the Jus- ment” does not include warehouse tice Department and an expert on the government’s right to search and seizure, Beatrice Rosenberg and central office employees of an argued some thirty cases before the Supreme Court, interstate retail-chain-store system. a record for women advocates. 78 JOURNAL OF SUPREME COURT HISTORY butions to the art of advocacy before us than sive litigating strategy designed to end overt most of the ‘big-name’ lawyers.”49 sex discrimination in the law. She argued six Born in Newark, NJ, Rosenberg was a times before the Court, losing only one case, high school classmate of William J. Brennan, Kahn v. Shevin (1974). Initiated by an ACLU Jr. (She herself was reportedly considered for affiliate in Florida, that case had not been se- a Supreme Court nomination by Richard M. lected to go before the Court by Ginsburg Nixon in 1971.) Rosenberg graduated from who, presciently, felt the timing was wrong. Wellesley College and New York University The cases Ginsburg argued or briefed Law School. She began her government ca- read like a list of landmarks in a gender law reer as a lawyer in the Justice Department’s textbook: Reed v. Reed (1971), Frontiero v. criminal division in 1943. When she left in Richardson (1973), Weinberger v. Wiesenfeld 1972, she had worked her way up to becoming (1975), Edwards v. Healy (1975), Turner v. chief of the Criminal Division’s appellate sec- Department of Employment Security (1975), tion. As an appellate lawyer, Rosenberg qui- Califano v. Goldfarb (1977), and Duren v. etly earned accolades from her peers. In 1970, Missouri (1979).51 She also filed influential she became the first woman to win the Tom C. amicus curiae briefs in many other equal pro- Clark Award, which is given by the District of tection cases, including the landmark Craig v. Columbia chapter of the Federal Bar Associa- Boren (1976). Ginsburg went on to be ap- tion for outstanding government service by a pointed to the United States Court of Appeals federal or local lawyer.50 for the District of Columbia Circuit in 1980 Rosenberg spent the last seven years of and then, in 1993, to the Supreme Court. her career before she retired in 1979 hearing job discrimination cases—including those in- Getting the Assignment volving sexual harassment—on the appeals board of the Equal Employment Opportunity Working as an appellate lawyer for the federal Commission (EEOC). She also litigated ap- government has been the most direct route to peals and helped persuade the Justice Depart- gaining the opportunity to argue a case before ment that sexual harassment was a form of the Supreme Court. In recent Terms, many of gender discrimination. Practical and quick- the cases heard have been between the federal witted, she served at the EEOC as a masterful government and an individual or other private mentor to a pride of appellate lawyers tackling party. Attorneys seeking to represent private employment discrimination cases. When she parties sometimes participate in “beauty con- died in 1989, the D.C. bar inaugurated the tests” to peddle their services. Affluent clients Beatrice Rosenberg Award “for outstanding often make the rounds of a handful of top law- government service by a bar member whose yers who specialize in appellate work—where career contributions to the government exem- the number of women is traditionally plifies the highest order of public service.” low—and ask questions about how each can- Although she does not come close to didate would handle the case and how experi- Rosenberg in terms of quantity of cases, Ruth enced that attorney is at arguing before the Bader Ginsburg deserves singling out as an Justices. The prestige of arguing a case before advocate for the quality of the arguments she the Supreme Court, and the reduction over the used to persuade the Supreme Court to strike past decade in the number of cases the Court down laws that treat men and women differ- has agreed to hear each Term, make the com- ently. As a cofounder of, and then general petition for assignments correspondingly stiff. counsel to, the Women’s Rights Project at the However, many women (and men) wind American Civil Liberties Union (ACLU), up arguing before the Supreme Court not be- Ginsburg was the architect of a comprehen- cause they are selected to jump in at the ap- WOMEN ADVOCATES BEFORE THE SUPREME COURT 79
peals level and lend their expertise, but simply has said: “I’ve always been convinced that because they have ridden the case from the when I lost a client, I lost for a. . . legitimate local level. In other words, clients often stick reason,” not because of gender. “There are with the attorney who filed their original suit, credentials you need,” she emphasized, “and regardless of whether he or she is an experi- right now a lot more men have those creden- enced appellate lawyer. These advocates gen- tials.”55 Those credentials often include a erally do not return a second time unless they clerkship for a Justice (Mahoney clerked for are lucky enough to be hired by another client Chief Justice William H. Rehnquist) and a whose case is reviewed by the Supreme stint at the OSG arguing for the United Court. States. How many women argue before the Su- One way to get appellate work in the Su- preme Court each Term? Only 17 percent of preme Court is to specialize in a particular the lawyers who argued before the Supreme area of law. Betty Jo Christian, a partner at the Court in the 1999 Term, and 10 percent in the Washington firm of Steptoe & Johnson, is a 1986 Term, were women. This is a big im- good example. Having served as Commis- provement over the 1966 Term, when that fig- sioner of the Interstate Commerce Commis- ure was barely 1 percent, and over the 1976 sion in the 1970s, she is considered a top ex- Term, when it was a mere 5 percent.52 How- pert on transportation and railroad law. ever, these figures have not kept pace with the Combining this expertise with appellate skills increasing numbers of women entering the has made her an attractive choice for railroad legal profession or joining the Supreme Court companies in suits interpreting the govern- bar. ment’s transportation and interstate com- To become a member of the Court’s bar, merce laws, many of which Christian helped an applicant must be sponsored by two formulate. She has argued four times before nonrelated members of that bar who swear the Supreme Court and has prepared briefs ei- that she has been a member in good standing ther for a party or as amicus curiae in count- of the bar of the highest court in their state for less other cases.56 at least three years. Once admitted, members Academic jobs at prestigious law schools are qualified to file briefs and other papers also aid engagement in a Supreme Court case. and to argue before the Bench, although most Kathleen M. Sullivan, now dean of Stanford join simply for the prestige of being a member Law School, is perhaps the highest-profile of an elite bar. In 1996, nearly a quarter of the woman in this category. Sullivan helped pre- attorneys admitted to the Supreme Court bar pare the brief challenging Georgia’s were women. That figure was up from 18 per- antisodomy statute in Bowers v. Hardwick cent in 1986 and 5 percent in 1976.53 A good (1986), was on the briefs representing abor- indicator of the swelling female ranks of the tion clinics in Rust v. Sullivan (1991), and was Supreme Court bar occurred on March 2, at the co-counsel table with Lawrence Tribe in 1998. On that day, Susan Orr Henderson, Bush v. Palm Beach County Canvassing Karen Orr McClure, and Joanne Orr, attor- Board (2000). neys from Indiana, became the first three sis- A good indication that women advocates ters to be sworn in simultaneously.54 are making progress and becoming true con- Do women advocates have a harder time tenders was the selection in 1998 of Mahoney, getting clients? Legal experts, and the advo- over stiff competition from leading male ad- cates themselves, generally say the answer is vocates, to represent the House of Representa- no. Former Deputy Solicitor General tives in a suit against the Commerce Depart- Mahoney, who is now carving out her own ment challenging the Census Bureau’s practice specializing in appellate advocacy, proposal to use a new method for conducting 80 JOURNAL OF SUPREME COURT HISTORY
In 1999, the House of Representatives hired Maureen Mahoney (right, addressing Justice John Paul Stevens at left) to argue a high-profile case against the Commerce Department challenging the Census Bureau’s pro- posal to use a new method for conducting the population count. the population count. This action was one of to the regulations of what a well-dressed law- the most highly prized assignments for the Su- yer should wear before the Supreme Court.”59 preme Court bar that Term.57 At that time, the dress code for men was cutaways and striped trousers, also called a morning suit. Dressing for Success Although male advocates representing While male advocates have followed a formal parties other than the United States have long dress code, women advocates, absent any since stopped sporting that uniform, lawyers rules, have had to improvise. In her day, Belva in the Office of the Solicitor General continue Lockwood wore prim black dresses befitting to honor the tradition. The office keeps half a her profession, but her arrival at the Supreme dozen outfits on hand, and most staffers bor- Court drew considerable attention because row one that fits when they have a Supreme she came on a tricycle, which she found more Court appearance. However, when Deputy economical than a horse and carriage.58 When Solicitor General Jewel Lafontant—a very Mabel Walker Willebrandt was named assis- stylish dresser—became the first woman from tant attorney general in 1923, she had a skirt the OSG to argue a case before the Court, in made out of pinstriped material and a black 1973, she took a cue from Willebrandt and coat to “call [] the attention of her gentleman had a skirt and jacket specially made for her, colleagues of the bar to her ability to conform with a one-button cutaway, pinstriped skirt, WOMEN ADVOCATES BEFORE THE SUPREME COURT 81
and jabot ruffled blouse. Apparently she dis- cided it was appropriate that they both be missed as “too large” then-acting Attorney dressed according to tradition.63 General Richard Kleindienst’s morning suit, Five years later, the Justices heard the which he offered for her first Court appear- first argument delivered by a woman in an- ance.60 Harriet S. Shapiro also declined to other type of uniform—a military one. Lieu- “get dressed up in those crazy costumes that tenant Colonel Kim L. Sheffield presented the don’t fit very well” for her first argument, and respondent’s case in U.S. v. Scheffer (1998) instead wore her own suit.61 Other women wearing her regulation U.S. Air Force attire.64 from the OSG have generally followed her Other women advocates have chosen lead by wearing dark (but not brown) suits or clothes that gave them confidence or were sim- dresses.62 ply comfortable. Ruth Bader Ginsburg sum- Women who work at the Supreme Court moned the image of her mother, Celia, when as Courtroom deputies (there has yet to be a arguing before the Court: “I wear her earrings female Clerk or Marshal of the Court) also and her pin and I think how pleased she would wear the traditional cutaways with pants. This be if she were there.”65 custom started in 1992, when Sandy Nelsen, The first woman to argue a case wearing Assistant to the Clerk of the Court, appeared pants was Marguerite M. Buckley in October in her usual spot at the Clerk’s desk in the 1973.66 She had previously distinguished her- Courtroom during oral argument wearing a self in 1964 as the first woman to wear a mini- morning suit. Clerk William Suter had de- skirt while being admitted to the Supreme Court bar. Having been thrown out of a court- room by a municipal court judge for wearing pants, Buckley chose a black pantsuit for her argument in the Supreme Court as much to make a political statement as to be comfort- able.67 “He wasn’t overwhelmed,” commented the Clerk of the Court, Michael Rodak, Jr., when the Washington Post asked about Chief Justice Warren E. Burger’s reaction.68 Buckley had called ahead to ask permission, and was told by Rodak that the Justices did not mind what she wore as long as it was “neat and clean.”69
Husbands and Wives The process of preparing for a Supreme Court argument takes months and is usually nerve-wracking. An advocate only has thirty minutes to make the argument, but she does not know how long she will be able to speak before a Justice jumps in with a question. Ad- The first woman to argue before the Supreme Court, Belva Lockwood favored prim black dresses with ruf- vocates prepare answers to possible questions fled collars. She used a tricycle to get to her Court and outline themes and points they intend to appointments because she found it the most effi- deliver, whether in response to a question or cient and economical means of getting around Wash- ington, D.C. through a narrative. It is difficult to predict 82 JOURNAL OF SUPREME COURT HISTORY
In 1973, Jewel Lafontant became the first woman from the Office of the Solicitor General to argue a case before the Supreme Court. For the occasion, she had a tailor make her a skirt and jacket that resembled the pinstriped cutaway coat and pants worn by her male colleagues. what tangent a Justice’s line of questioning Sixth District Court of Appeals of Ohio and might take, and an advocate must be prepared the Supreme Court of Ohio, respectively.70 for anything. First-timers are often coached At least one woman advocate making her by veterans, who help them stage mock argu- first Supreme Court appearance has been ments by playing the role of the Justices. Even coached at home by a husband who was a vet- veterans continue to do mock arguments, no eran. Benna Ruth Solomon, a lawyer for the matter how many times they have appeared city of Chicago, and David Strauss, a profes- before the Court. Horror stories abound of ad- sor at the University of Chicago Law School, vocates who are humiliated because they get delivered arguments a week apart in 1997.71 off track or fail to think fast enough to answer Strauss, who had already appeared fifteen a Justice’s question. times before the Court, admitted that he had a Some male advocates have had the good tougher time sitting with his two young fortune of collaborating with their wives on daughters watching his wife, who had clerked their presentation. The first couple to argue a for Justice Byron R. White, deliver an argu- case together before the Court was probably ment than he had had performing himself. Alice L. Robie and Melvin L. Resnick in a “It’s harder because you can’t do anything death penalty case called Crampton v. Ohio with your energy, your nervousness,” he ob- (1971). Resnick presented the argument for served. “You just have to sit there.”72 For oth- Ohio, while Robie, who had cowritten the ers sitting in the Courtroom, Benna Solo- brief, sat next to him at counsel table. They mon’s argument was a treat to observe. “It were both assistant prosecuting attorneys at was one of the very best arguments of the the time and are now serving as judges on the Term,” a regular observer commented.73 WOMEN ADVOCATES BEFORE THE SUPREME COURT 83
David Strauss and Benna Ruth Solomon stood on the steps of the Supreme Court with their daughters in 1977 after Solomon presented oral argument. They form one of several couples that have appeared before the Court, either as co-counsels or, as in this instance, to argue separate cases. 84 JOURNAL OF SUPREME COURT HISTORY
Another woman advocate, assistant solic- questions and suggestions during dinner table itor general Cornelia T. L. Pillard, argued six conversations. days before her husband, David Cole, a pro- fessor at Georgetown University Law Center, Rolling with the Waves in 1994. However, they were not much help to each other, because neither had ever argued The gallantry shown women in Daniel Web- before the Supreme Court and they were pre- ster’s day has long since been replaced by paring unrelated cases. The stress level in professional courtesy. Female advocates are their household was enormous. “It’s like the not cut any slack during the ordeal of oral ar- Iron Man Triathalon of the law,” explained gument because they are women. There may Pillard. “There’s so much training and prepa- even have been some initial resistance to ration, it’s...theultimate challenge.”74 women advocates appearing in the Court- Ruth Bader Ginsburg reports that not room, if only on the part of Justice James C. only did her husband, Martin D. Ginsburg, McReynolds, who also objected to the Court now a Georgetown University Law Center employing women.75 When Emily Marx ar- professor, read drafts of her briefs and listen gued the citizenship eligibility case of a Cana- to rehearsals of her arguments, but her son and dian nurse in 1931, Justice McReynolds re- daughter also routinely chimed in with their portedly remarked in a voice loud enough for
Ruth Bader Ginsburg’s son James and nephew David Stiephman attended her 1978 oral argument in Duren v. Missouri, one of six cases she argued before the Supreme Court. WOMEN ADVOCATES BEFORE THE SUPREME COURT 85 all to hear: “Do we have to listen to a fe- The first time I argued a case here I male?”76 didn’t have lunch . . . because I did- As the Court began reviewing sex dis- n’t know whether I could keep it crimination cases in the 1970s and the down. I was initially terribly ner- women’s movement came into flower, did vous, and after about two minutes women advocates gain an advantage in argu- into the argument I looked up at ing gender-related cases? Justice Douglas im- these guys and I said, “I have a cap- plicitly answered that question in describing tive audience. They have no place to how four hapless women so irritated him dur- go for the next half hour. They must ing their arguments that he jokingly consid- listen to me.” And it was a feeling of ered rolling back all the progress the Supreme power. And then there was the chal- Court had granted women in equal protection lenge of rolling with the waves, cases. sometimes the punches.78 In the sixties and seventies, more and more women appeared as advocates. Their average ability and skill were ENDNOTES the same as the male advocates and their presence was no cure for the me- 1Kaiser v. Stickney, 131 U.S. clxxxvii Appx (1880). Ap- pendix of “Omitted Cases in the Reports of the Decisions diocrity of most arguments before us. of the Supreme Court.” I remember four women in one case 2See Norgren, Jill, “Before It Was Merely Difficult: who droned on and on in whining Belva Lockwood’s Life in Law and Politics.” Journal of voices that said, “Pay special atten- Supreme Court History 23, no. 1 (1999) at 16–40. tion to our arguments, for this is the 3Lockwood’s efforts to be admitted to the Supreme Court day of women’s liberation.” Several bar were considered amusing by Washington society. Malvina Shanklin Harlan, wife of Justice John Marshall of us did express the view that any Harlan, attended a party at the White House for Chief Jus- law which drew a line between men tice Morrison R. Waite on the day the Court initially had and women was inherently suspect. refused Lockwood’s application for admission. “It was an That view had not prevailed over the unprecedented proceeding at that time,” she reported, majority saying a discrimination “and the people of Washington generally were laughing in their sleeves over it. The newspaper giving an account of classification would be sustained if it said, ‘The Chief Justice squelched the fair applicant.’” “reasonable.” During this argument See Malvina S. Harlan, Some Memories of a Long Life, by the four wondrous Amazons, I 1854–1911 (revised 1915) (unpublished manuscript, Li- sent a note along the bench saying I brary of Congress, Washington, D.C.) at 90. was about to change my mind on sex 4Sheldon, George, “Negro Slavery in Old Deerfield,” classifications and sustain them if New England Magazine n.s. 8 (March 1893) at 54–57. 5Quoted in Proper, David R, Lucy Terry Prince: Singer they were “reasonable.”77 of History (1997) at 32. Proper’s work discredits the While presenting a case to the Justices is story of Prince’s oral argument before Justice Chase for lack of documentation. perhaps the most difficult task a lawyer can 6For a well-considered argument giving the benefit of the perform, it also confers enormous prestige doubt to the Prince story, see Smith, J. Clay, Jr. Emanci- and can be an exhilarating experience. De- pation: The Making of the Black Lawyer, 1844–1944 spite her abilities, even Ruth Bader Ginsburg (1993), at 70–71. For a more contemporaneous historical felt the same fears during her first time argu- account of Prince’s argument, see Holland, Josiah ing before the Supreme Court that strike most Gilbert, History of Western Massachusetts the Counties of Hampden, Hampshire, Franklin, and advocates, men or women. Yet she has also Berkshire: Embracing an Outline, or General His- recalled how powerful the experience made tory, of the Section, an Account of Its Scientific As- her feel: pects and Leading Interests, and Separate Histories of 86 JOURNAL OF SUPREME COURT HISTORY
Its One Hundred Towns (1855). See also two other 17Conley v. Ballinger, Secretary of the Interior, 216 U.S. sources that perpetuate the Prince legend: Merriam, Rob- 84 (1910). ert L., Lucy Terry Prince (1983); and Katz, Bernard and 18The Historic Huron Indian Cemetery, pamphlet of Jonathan, Black Woman: A Fictionalized Biography of the Kansas City Chamber of Commerce. Lucy Terry Prince (1973), 225–69. 19Smith, J. Clay, Jr., ed., Rebels in Law: Voices in His- 7Correspondence between Rodney B. Field and George tory of Black Women Lawyers (1998) at 282. Sheldon, quoted in Proper, supra note 4 at 47, note 142. 20Smith, supra note 6, at 69–70. 8Marcus, Maeva, ed., The Documentary History of the 21Id. at 145. Supreme Court of the United States, 1789–1800, Vol. 22See generally Motley, Constance Baker, Equal Justice III (1990), Appendix C at 491. Under Law: An Autobiography (1998). 9Prince’s poetry is discussed in most works on Afri- 23Bell v. Burson, 410 U.S. 535 (1971). can-American poetry and in: Kaplan, Sidney, “Lucy 24Doe v. Bolton, 410 U.S. 179 (1973). Terry Prince: Vermont Advocate and Poet,” in The Black 25Garrow, David J., Liberty and Sexuality (1994) at 446. Presence in the Era of the American Revolution, 26Oral argument for Roe v. Wade, The Supreme Court’s 1770–1800 (1973) at 209–211. Greatest Hits, CD-ROM by Jerry Goldman, 1999. 10Morello, Karen Berger, The Invisible Bar: The 27Quoted in Garrow, supra note 25 at 524. Woman Lawyer in America, 1638 to the Present 28Smith v. Organization of Foster Families for Equality & (1986) at 8. Morello says in a note that “[h]istorian Reform, 431 U.S. 816 (1977). One and a half hours were Barbara Wertheimer in her book on working women, We allotted for oral argument. In the Supreme Court’s Jour- Were There,” reported “the instance in which Myra nal entry, Louise “Grumer” is corrected in pencil to read Clark Gaines of New Orleans, who spent years in litiga- Louise “Gruner Gans.” tion over her inheritance, argued and won her own case in 29U.S. ex rel. Johnson v. Shaughnessy, 336 U.S. 806 the U.S. Supreme Court against the formidable Daniel (1949). Argued April 19–20, 1949. Webster.” However, I could find no reference to either 30Interview with Patricia Dwinnell Butler, October 1997. Gaines or Webster in Barbara Mayer Wertheimer, We 31“Current and Previous Women In OSG,” Office of the Were There: The Story of Working Women in Amer- Solicitor General document. ica (1977). 32Schlesinger v. Ballard, 419 U.S. 498 (1975); Newport 11Supreme Court of the United States, Minutes. News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 12Ex parte Whitney, 13 Pet. 404 (1839); Gaines v. Relf, 669 (1983). 15 Pet. 9 (1841); Gaines v. Chew, 2 How. 619 (1844); 33Dates of service and number of cases argued for all fe- Patterson v. Gaines, 6 How. 550 (1848); Gaines v. Relf, male OSG advocates are from the Office of the Solicitor 12 How. 472 (1852); Gaines v. Hennen, 24 How. 553 General. (1861); Gaines v. Delacroix et al., 6 Wall. 719 (1868); 34Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See New Orleans v. Gaines, 15 Wall. 624 (1873); Gaines v. generally Varchaver, Nicholas, “The Last Emperor,” The Fuentes, 92 U.S. 10 (1876); Smith v. Gaines, 93 U.S. American Lawyer, December 1994 at 52. 341 (1876); Davis v. Gaines, 104 U.S. 386 (1881); New 35Rambler, Mark, “Counting on Maureen Mahoney,” The Orleans v. Gaines’s Administrator, 131 U.S. 191 (1889); American Lawyer, November 1998. New Orleans v. Gaines’s Administrator, 138 U.S. 595 36Interview with Maureen E. Mahoney, December 1999. (1891). 37Interview with Frank Lorson, Chief Deputy Clerk of the 13See generally Harmon, Nolan B., The Famous Case of Supreme Court of the United States. Myra Clark Gaines (1946). 38Maryland v. Wilson, 519 U.S. 408 (1997). 14Van Brunt, Henry, “Three Sisters’ Defense of Cemetery 39See generally Drachman, Virginia G., Sisters in Law: Continued For Nearly Forty Years,” Kansas City Times, Women Lawyers in Modern American History June 7, 1946. (1998). 15Conley argued her case on January 14, 1910, and was 40See generally Brown, Dorothy M., Mabel Walker admitted to the Supreme Court bar on October 25, 1915, Willebrandt: A Study of Power, Loyalty, and Law on motion of John W. Davis. Many newspaper accounts (1984). of Conley’s achievements erroneously claim that she was 41Clarke, Nell Ray, “Women in the Supreme Court,” the first women admitted to the Supreme Court bar. In Equal Rights 14 (April 9, 1927) at 71–72. Clarke reports fact, she was the fifty-ninth. that by that date Willebrandt had argued nineteen times 16Kansas City Public Library, “The Conley Sisters” [Web before the Supreme Court: fourteen Prohibition cases and site] at
42“Assistant to Attorney General Handles Much Work on of admittees for the same Term. Because the Supreme Trains,” The Washington Post March 28, 1934 at 13. Court Journal does not list honorifics such as Mrs. and 43Kirby Petroleum Co. v. Commissioner of Internal Reve- Ms. when recording oral and written admissions, gender nue. Commissioner of Internal Revenue v. Crawford 326 was determined by the first name. Given names that are U.S. 599 (1946); Commissioner of Internal Revenue v. ambiguous (Robin, Terry, Leslie, etc.) were not counted. Holmes’ Estate 326 U.S. 480 (1946); Putnam’s Estate v. To accommodate a margin of error, percentages were Commissioner of Internal Revenue, 324 U.S. 393 (1945); rounded off. United States v. Standard Rice Co., Inc., 323 U.S. 106 54“Three Sisters from Indiana to be Sworn In before the (1944); Commissioner of Internal Revenue v. Bedford’s United States Supreme Court,” press release, The Na- Estate, 325 U.S. 283 (1945); Merrill v. Fahs, Collector of tional Society Daughters of the American Revolution, Internal Revenue, 324 U.S. 308 (1945); Commissioner of March 2, 1998. Internal Revenue v. Wemyss 324 U.S. 303 (1945); 55Biskupic, Joan, “Women Are Still Not Well-Repre- Douglas v. Commissioner of Internal Revenue, Robin- sented Among Lawyers Facing Supreme Test: Despite son’s Estate v. Commissioner of Internal Revenue, Dal- Gains for Female Advocates, High Court Is Largely a rymple v. Commissioner of Internal Revenue, 322 U.S. Man’s Venue,” The Washington Post, May 27, 1997 at 275 (1944) (two cases); Maguire v. Commissioner of In- A3. ternal Revenue, 313 U.S. 1 (1941); Harrison v. Northern 56Interview with Betty Jo Christian, September 1999. Trust Co., 317 U.S. 476 (1943); Haggar Co. v. Helvering, 57United States Department of Commerce v. United Com’r of Internal Revenue, 308 U.S. 389 (1940); Com- States House of Representatives, 525 U.S. 316 (1999). missioner of Internal Revenue v. Gooch Milling & Eleva- 58Norgren, supra note 2 at 19. tor Co., 320 U.S. 418 (1943); Helvering, Commissioner 59Clarke, supra note 41 at 70. of Internal Revenue v. Metropolitan Edison Co., Metro- 60Radcliffe, Donna, and Hyde, Nina S., “Courting Attire,” politan Edison Co. v. Pennsylvania Water & Power Co., The Washington Post, November 27, 1973, at B2. 306 U.S. 522 (1939); Real Estate–Land Title & Trust Co. 61Interview with Harriet S. Shapiro, May 1999. v. United States, 309 U.S. 13 (1940); Lang v. Commis- 62Biskupic, Joan, “In This Court, One Must Dress with sioner of Internal Revenue, 304 U.S. 264 (1938); General Respect for the Justices,” Austin American-Statesman, Gas & Electric Corporation v. Commissioner of Internal December 18, 1999, at A33. Revenue, 306 U.S. 530 (1939). 63“Special Events Supreme Court of the United States,” 44Total Broadhurst Lee Company, Ltd., v. Commissioner November 3, 1992. of Internal Revenue, 279 U.S. 861 (1929). 64“Special Events Supreme Court of the United States,” 45Douglas, William O., The Court Years, 1939–1975: November 3, 1997. The Autobiography of William O. Douglas (1980) at 65Quoted in Ayer, Eleanor H., Ruth Bader Ginsburg: 184. Fire and Steel on the Supreme Court (1994) at 55. 46“Bessie Margolin, Labor Department Lawyer,” obitu- 66The case was Lubin v. Panish, 415 U.S. 709 (1974). ary, The Washington Post, June 21, 1996 at B6. 67Interview with Marguerite M. Buckley, March 2000. 47Douglas, supra note 45 at 184–5. Some press reports erroneously attributed the distinction 48“Beatrice Rosenberg; Prominent Attorney for the U.S. of begin the first woman to argue before the Supreme Was 81,” obituary, The New York Times, December 2, Court in pants to Jane M. Picker, who argued a high-pro- 1989, section 1 at 15. file pregnancy case, Cleveland Bd. of Ed. v. LaFleur, dur- 49Douglas, supra note 45 at 186. ing the same Term. Picker wore a red pant suit in the Su- 50“Beatrice Rosenberg, Lawyer, Justice Official,” obitu- preme Court building while preparing her case, but chose ary, The Washington Post, December 2, 1989, Metro sec- a dress for the actual argument. Interview with Jane M. tion. Picker, March 2000. 51See generally Cushman, Clare, ed., Supreme Court 68Radcliffe and Hyde, supra note 60. Decisions and Women’s Rights: Milestones to Equal- 69Buckley interview, supra note 67. ity (2001). 70Crampton v. Ohio, 402 U.S. 183, argued November 9, 52These percentages were calculated by counting the 1970. Correspondence with Alice Robie Resnick, Sep- number of women advocates (Mrs. and Ms. in the Su- tember 10, 1999. preme Court Journal) who have argued in a given Term 71David Strauss argued Steel Co. v. Citizens for a Better and dividing that number by the total number of advo- Environment, 523 U.S. 83 (1998), on October 6, and cates who argued that Term (including amicus curiae and Benna Ruth Solomon argued Chicago v. International pro hac vice). Percentages were rounded off. College of Surgeons, 522 U.S. 156 (1997), on October 14. 53These percentages were calculated by counting the 72Greenberg, Jan Crawford, “This Couple Argues Before number of female admittees to the Supreme Court bar in a Highest Court,” Chicago Tribune, October 15, 1997, at 6. given Term and dividing that number by the total number 73Anonymous source. 88 JOURNAL OF SUPREME COURT HISTORY
74Greenberg, supra note 72. to be approaching the office.” The anonymous employee 75O’Donnell, Alice L, “A Long Way, Baby: Women and was O’Donnell herself; the unnamed Justice was James Other Strangers Before the Bar,” Supreme Court Histori- C. McReynolds. cal Society Yearbook (1977) at 59. The author recounts 76Schaeffer, Amy, “Meet Miss Marx!”, Barnard College how “one Justice was opposed to having any women em- Alumnae Magazine, January 1941, vol. xxx, no. 4 at 12. ployees at the Court. One Clerk of the Court finally dared The case was United States v. Bland, 283 U.S. 636 pioneer the course and hired a woman to work in his of- (1931). fice. But so violently opposed was the Justice that (tales 77Douglas, supra note 45 at 185. recount) the woman had to hide every time he was heard 78Film for Visitors, Supreme Court of the United States.