Why Care About the History of Women in the Legal Profession?

by Angela N. Johnson

Mary Clark’s article, “Why Care About the History of Women in the Legal Profession?” considers what theoretical frameworks are useful for evaluating the sigificance of women’s service in the Supreme Court bar and how the history of women in the Supreme Court bar and in the larger profession fit into the broader history of women (Clark Spring 2006).

Following years of active lobbying by Belva Lockwood, congress in 1879 amended the rules of the Supreme Court bar to allow admission of women. Until the turn of the twentieth century, most women of the bar were suffragists – though they were not involved in cases regarding women’s rights (Clark Spring 2006, 59). Most cases heard by women related to contract or property disputes and such women were either in solo practices or practiced with their husbands. Women of the bar in the 1900’s to 1920’s served as government attorneys atlocal, state and national levels. From 1921 to 1929, Mabel Walker Willebrandt of the Justice Deparmtent participated in twenty-two cases on the merits and argued ten of them. Then, not until the 1960’s and 1970’s were women regularly present in the court. This time period brought Constance Baker Motley of the NAACP Legal Defense Fund and Ruth Bader Ginsburg at the ACLU Women’s Rights Project. Ginsburg briefed and argued the leading women’s rights cases of the 70’s as Director of the Women’s Rights Project. “In contract with historical patterns, a growing number of women advocates have argued feminist causes before the Court, pressing for expanded recognition of sexual harassment, family leave rights, and gay rights. Overall, women have comprised eight percent of Supreme Court Advocates” (Clark Spring 2006, 60-61).

Clark notes that because arguing before the Supreme Court means (both symbolically and actually) to have attained the status of “ultimate lawyer” it is important that women attain equal status and in equal numbers; making it so that the ultimate lawyers are not all male. Moreover, women advocates who represent women-oriented causes now wield greater power; “No longer must women ask men to plead their causes, instead, women would empower themselves by stating their own cases” (Clark Spring 2006, 61). The same can be said of the impact of women as Supreme Court advocates for other “firsts” for women in the legal profession and when attaining the top-echelons of one’s professional lawyering career.

Why it matters:

1. There must be equality of opportunity and freedom from discrimination in gaining appointment to argue cases before the Court. This requires removal of formal barriers to participation including informal systems of winning appointments to represent clients in the High Court.

2. Women’s participation aids the legitimacy of the system through its greater reflectiveness of the diversity of the American people. Reflectiveness promotes public trust and confidence that justice will be done. The trouble with this argument, however, is that by claiming that women belong to a different group is dangerous. Emphasis, according to Clark, must be placed on varying demographics, experiences, and perspectives of women.

3. It is important to have “insiders” in the Court who can advocate for the woman “outsider” perspective.  By promoting women’s concerns within established venues; gaining the Justice’s trust, the women advocates can use it to benefit “outsider” women.

4. Women’s participation at the highest levels of the profession is important in shattering stereotypes and modeling possibilities for both current and future generations.

5. Women advocates bring different styles of advocacy and/or viewpoints than men to the Court. This could potentially challenge our understanding of what good lawyering is and reshape cultural norms. If women’s advocacy brings something different to the table then a reshaping of understanding what the law could be would potentially produce different substantive outcomes.

6. The absence of women in positions of power, including as advocates before the Court, is symptomatic of men’s dominance of women in our society and must be actively countered. Clark credits Catharine MacKinnon in developing the dominance/anti-subordination theory – the legal profession has been and continues to be defined by male norms – widespread acceptance of these norms benefits powerful men’s interests in dominating and subordinating women. Genuine change will come only with radical reconstitution of accepted social norms.

In sum, Clark’s article is insightful in that it draws parallels in looking at women’s accomplishments in a historical context to women’s accomplishments in the legal profession (more specifically in the United States Supreme Court).

Source Citation: Clark, Mary L. “Why Care About the History of Women in the Legal Profession?” Women’s Rights Law Reporter, Spring 2006: 59-68.

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