October 29, 2003
Remarks of Justice Ginsburg at Bar's Quarterly Meeting
Remarks of United States Supreme Court Jutice Ruth Bader Ginsburg
for Philadelphia Bar Association Luncheon October 23, 2003
The 10th Annual Sandra Day O'Connor Award is a roadmark to celebrate, and I am glad to join you in a rousing Brava to the Justice and the award winner. To the Philadelphia Bar Association, may I say thanks for choosing this day to launch, in addition, a "Pursuit of Justice" essay award in my name. The Philadelphia Bar, I'm told, is the oldest city bar association in the nation, and "Philadelphia lawyer," all here know, means a fine practitioner, following the excellent example Andrew Hamilton set when he came to New York to defend Peter Zenger.
The 10th anniversary of the Sandra Day O'Connor Award fortuitously coincides with the 10th anniversary of my appointment to the Supreme Court, and with the 25th anniversary of distinguished U.S. District Judge Norma Shapiro's appointment to the federal bench. Happily, each decade-indeed, each year-brings more women's voices to the fore in our profession. Perhaps some year soon, all lawyers who appear before the Supreme Court will fully comprehend that there are two of us, and will stop calling me "Justice O'Connor." Yes, there is a way to go, especially in making law firm life compatible with family life, but what a distance we have traveled since my 1959 graduation from law school.
In my growing up years, men of the bench and bar generally held what the French call an idée fixé, the unyielding conviction that women and lawyering do not mix. It ain't necessarily so, ancient texts reveal.
In Greek mythology, Pallas Athena was celebrated as the goddess of reason and justice. 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.
Recall also the Biblical Deborah (from the Book of Judges). 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 judgments. According to the rabbis, Deborah was independently wealthy; thus she could afford to work pro bono.
The U. S. legal establishment, even if its members knew of Athena and Deborah, for too long remained unwilling to admit women into its ranks. 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 enroll women.
Lemma Barkaloo, among the first women to attend St. Louis, earlier had been turned away by my own alma mater, Columbia. In 1890, when Columbia denied admission to three more female applicants, a member of the University's Board of Trustees is reported to have said: "No woman shall degrade herself by practicing law in New York especially if I can save her."
Once granted admission to law schools, women were not greeted by their teachers and classmates with open arms and undiluted zeal. An example from this city's own 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.
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. The Illinois court thought it instructive, too, that female attorneys were unknown in the mother country. Concerning the Illinois court's reference to 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.
In 1875, when Lavinia Goodell of Wisconsin was denied admission to her State's bar, a Justice of the Wisconsin Supreme Court remarked: "It would be revolting to all female sense of innocence . . . that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice." An enlightened local newspaper commented in an editorial: "If her purity is in danger, it would be better to reconstruct the court and bar than to exclude the women." Goodell persevered. Wisconsin's legislature trumped the State's high court and, in 1879, Goodell became a member of the state bar.
As late as 1968, however, the law remained largely a male preserve, as textbooks and teachers confirmed. A widely adopted first year property casebook published that year, for example, made this parenthetical comment: "[F]or, after all, land, like woman, was meant to be possessed . . . ."
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."
The critical mass achieved in the 1970s contrasts with the impermanence of the slight surge in women's law school enrollment during World War II. In that earlier era, the president of Harvard was reportedly asked how the law school was faring during the World 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." (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.")
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"-the absence of adequate lavatories for women.
Times have indeed changed: To mark my 1993 appointment to the Supreme Court, my colleagues ordered an addition to the Justices' robing room-a women's bathroom equal in size to the men's.
Despite the obstacles, the depressing signs conveying "No Portias wanted here," female lawyers would not be put down. In the early 1960s, women accounted for about 3% of the nation's lawyers. Today, their ranks have increased tenfold, to 30% of the U. S. bar.
In the law schools, women filled between 3 and 4.5% of the seats each academic year from 1947 until 1967. Today, women are more than 50% of the entering law school population, and 41% of the new associates engaged by large law firms.
Progress is evident behind the podium, too. In 1922, Barbara Nachtrieb Armstrong was appointed to the Berkeley (Boalt Hall) law faculty. She was the first woman ever to gain a tenure-track post at an ABA-approved law school. Over two decades later (1945), only two other women had made their way to the tenure-track at AALS- member schools. When I was appointed to the Rutgers faculty in 1963, women headed for tenure at AALS schools still numbered under a score. But by 1990, more than 20% of law professors were women. Today, women are 23% of the full professors with tenure, and more than 32% of law faculty members overall.
Strides in law practice are similarly marked. In all but three states, a woman has served as president of the state bar association. To date, over 130 women have headed state associations. Eight women are currently state bar presidents. Two women have served as President of the American Bar Association in the decade just passed. Notably, a woman chaired the House of Delegates under each female ABA president.
When I graduated from law school, only one woman-Sixth Circuit Judge Florence Ellinwood Allen-had ever served on an Article III federal appellate bench. Today, women hold nearly one-quarter of all Article III federal judgeships. As of July, every State except Oregon and Indiana had elevated at least one woman to its court of highest resort; currently, about one-third of state court chief justices are women.
Women's voices, once silenced in lawyers' circles, are nowadays heard wherever there is legal work to be done. Like persons of different racial groups and ethnic origins, women contribute what a fine jurist, the late Fifth Circuit Judge Alvin Rubin, described as "a distinctive medley of views influenced by differences in biology, cultural impact, and life experience." Our system of justice is richer for the diversity of background and experience of its lawyers. It was poorer, in relation to the society law exists to serve, when nearly all of its participants were cut from the same mold.
In 1776, Abigail Adams famously admonished her husband John to "remember the ladies" in the new nation's code of laws. Today, women need not depend on men's memories. In our courts, conference rooms, and classrooms, in ever-increasing numbers, women are speaking for themselves, and doing their part, along with sympatique brothers-in-law, to help create a better world. Women will of course be remembered, for we are everywhere. Thank you.