To the oft asked question as to how many women on the Bench of the Supreme Court of the United States would be “enough” – the iconic Ruth Bader Ginsburg – without batting an eyelid – would say “when there are nine”. After all, for most part of the history of the Supreme Court, it was normal for nine men to adorn the Bench. From one amongst the nine women in a class of five hundred at the Harvard Law School – where Dean Griswold asked every first-year woman “Why are you at Harvard Law School, taking a place that could have gone to a man?”[2] – Justice Ruth Bader Ginsburg became the second Judge on the Court joining the first and only Justice Sandra Day O'Connor in 1993. In her opening statement at her confirmation hearing, Judge Ginsburg said:
“Indeed, in my lifetime, I expect to see three, four, and perhaps even more women on the High Court bench, women not shaped from the same mold, but of different complexions.”[3]
The philosophy at the time of founding is well described in the quote ascribed to Thomas Jefferson – “The appointment of a woman to office is an innovation for which the public is not prepared, nor am I”. This comment was at a time when women did not have the right to vote.
Amongst the first to break the glass ceiling was Belva Lockwood – “a woman of courage who would not be put down”[4]. Widowed at the age of 22 with a young child, she trained to be a high school teacher and later became the school principal. After some time, she moved from Niagara County, New York, to Washington, and remarried. At the age of thirty-nine, she applied for law school admission – which unsurprisingly was rejected. After all, her presence “would…distract the attention of the young men”[5]. She finally got admission in the National University Law School[6] - but her struggle continued as the Law School refused to grant her a diploma she had earned. Undeterred, she wrote to President Grant about the unfairness in not awarding her the diploma – and a few days later, she received her diploma leading her into her next stage of struggle. After practicing law for three years in the District of Columbia, Belva Lockwood sought admission to the Supreme Court Bar – having met the requisite criteria. But her application was denied since “none but men are permitted to appear before it as attorneys and counselors”[7]. Undaunted, Belva Lockwood lobbied Congress till they decreed that any women who had the necessary qualification could practice before the Supreme Court of the United States. She became the first woman to argue before the Supreme Court.
A relentless fighter of equal rights, Belva Lockwood contested the Presidential Election in 1884 and 1888 as a member of the Equal Rights Party – even though women were not allowed to vote, there was no bar on women contesting – “We shall never have equal rights until we take them, nor equal respect until we command it” she would write in a letter to Marietta Stow. She was an unequivocal advocate for equal rights through her life, until she passed on 19th May 1917. The name of Belva Lockwood is thus etched in history as the torch bearer for equal rights.
Florence Allen took over the torch – and was many firsts in the United States. Born as one of the seven children of a mine manager and a future United States Representative, in Utah, Florence Allen studied the law from the University of Chicago for a year, and then from the New York University School of Law, and returned to Ohio to be admitted to the Bar in 1914. After the initial struggle at the Bar, she began her journey of firsts – she became the first woman assistant prosecutor in the United States, the first Associate Justice of the Ohio Supreme Court and the first woman to be on the United State Court of Appeals for the Sixth Circuit. At the time, when vacancies arose on the Bench of the Supreme Court, she was considered by President Truman for the appointment – but was deterred by India Edwards[8] who advised the President:
“[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 reason for not wanting a woman…”[9]
Florence Allen was however appointed to the United States Court of Appeals for the Sixth Circuit in 1958, where she served as Chief Judge, till her retirement, and then as the Senior Judge till her death on 12th September 1966. Although President Truman overlooked Florence Allen, he perhaps redeemed himself by the appointment of Burnita Shelton Mathews to the United States District Court for the District of Columbia – the first woman to the appointed to a United States District Court in October 1949 as a recess appointment and then confirmed in April 1950. But the going wasn't easy.
Burnita Shelton was born in December 1894, and after formal education, she trained to be a music teacher. When the First World War broke out, she moved to Washington D.C. and qualified as a civil servant. After the war, she joined the night classes at the National University Law School and received her degree in 1919, and her masters in 1920. She then passed the Bar exam. She was involved in the activities of the National Women's Party through her years at law school. Her gender made her unwelcome at the Bar – but undeterredly she went on to enjoy professional success at the Bar. An active advocate for equal rights, Burnita Shelton Mathews was instrumental in identifying legislation which were discriminatory in nature – with some States even passing legislation she drafted, including one that removed the disqualification for women to serve as jurors. Her professional growth also she her establish a law firm with her suffragette colleagues, before President Truman nominated her to the Bench – where she served with distinction till her retirement in 1968.
The struggle of women lawyers in the United States is not limited to the awe-inspiring stories of the three extraordinary women in this piece. For example, in 1869, Myra Bradwell was denied admission to the Bar, upheld by the Illinois Supreme Court on the premise that “as a married woman, Bradwell would not be bound by contracts she made.”[10] Women were unwelcome at Law Firms and even to clerkships – something that Ruth Bader Ginsburg has oftentimes spoken of. Perhaps the question of Dean Griswold was not out of sync with the general attitude towards women at the Bar – and as extension to the Bench. It was not until President Carter took the Presidency was the complexion of the judiciary changed. Amongst 97 Judges on the Federal Court of Appeals, 1 was a woman, and amongst 399 District Court Judges, 5 were women. President Carter appointed forty women to federal judgeship – a life appointment.[11] For Carter, the appointment of competent women to the Bench was no charity or tokenism – but the right thing to be done. It wasn't about women's rights – it was about equality. What the immortal words of Sarah Moore Grimke popularized by Ruth Bader Ginsburg in her argument before the Supreme Court in Frontiero[12] actually meant – “I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.”
Almost a century after Belva Lockwood became the first woman to argue before the US Supreme Court, Justice Sandra Day O'Connor became the first woman to be a Judge of the US Supreme Court, and there is now no looking back. Ginsburg herself became the first Jewish Woman on the Bench, with Justice Sonia Sotomayor as the first Latino Woman and Justice Ketanji Brown Jackson as the first black Woman on the Bench. Of course, Justice Kagan was the first woman to be the Solicitor General of the United States and with Justice Amy Coney Barrett, the Supreme Court now comprises of “women not shaped from the same mold but of different complexions”. On the 18th of September this year, it has been five years since the passing of Justice Ginsburg – who began as one of nine women in five hundred at Harvard, became the second of nine on the Bench in 1993 and was amongst the three of nine at the time of her death. Four out of nine are women on the Bench of the US Supreme Court at the time of her fifth death anniversary – much closer to “when there are nine”.
Author is Advocate on Record, the Supreme Court of India. Views Are Personal.
2. Jane Sherron De Hart, Ruth Bader Ginsburg – A Life, Alfred A. Knopf, New York, 2018, Pg. 56 ↑
3. Ruth Bader Ginsburg, My Own Words, Simon & Schuster, 2016, New York, Pg. 183 ↑
4. Ruth Bader Ginsburg, Supra note. 2, Pg. 65 ↑
5. Ruth Bader Ginsburg, Supra note 2, Pg. 66 ↑
6. It is now called the George Washington University Law School ↑
7. Ruth Bader Ginsburg, Supra note 2, Pg. 67 ↑
8. India Edwards was the head of the Women's Division of the Democratic National Committee ↑
9. Ruth Bader Ginsburg, Supra note 2, Pg. 75 ↑
10. Ruth Bader Ginsburg, Supra note 2, Pg. 71 ↑
11. Ruth Bader Ginsburg, Supra note 2, Pg. 75 ↑
12. Frontiero v. Richardson, 411 U.S. 677 (1973). The quotation is found in the Court transcript at Page 20, and available at https://www.supremecourt.gov/pdfs/transcripts/1972/71-1694_01-17-1973.pdf. ↑