If you walk into the US Supreme Court building today, you will see an envelope in a glass case on which is scribbled in cursive, “In Re Lady Lawyers.”
The envelope sits next to a list it contained, which has the names of 97 women who were admitted to practice law at the high court between 1879, when Congress adopted “an Act to relieve women of certain legal disabilities,” and 1920.
The first name on the list is Belva Lockwood, the second daughter of five children born to farmers in 1830 in New York. She was the spark behind the 1879 law. Married as a teenager, she did not seem destined for greatness. “At birth Lockwood had neither wealth and social standing nor the promise of a fine education,” the National Archives say of her.
Yet Lockwood became a force for equality and an esteemed lawyer in the 19th century, when women were largely considered unfit for intellectual labor, as well as an inspiration for those who would follow in her footsteps, including Supreme Court justice Ruth Bader Ginsburg.
Making of a lady lawyer
Lockwood was widowed at 22 and had a young daughter. Wishing to be financially independent, she went to college and became a teacher. In 1866, she moved to Washington DC to teach, and remarried. However, her husband’s health was poor and Lockwood had to provide for the family so she decided to become a lawyer.
When she completed her legal education at the National University Law School in 1871 (now George Washington University), the school withheld her degree because male students objected to sharing the honor. They thought a female graduate brought down the value of their certificates. Lockwood petitioned the nation’s president Ulysses Grant, demanding her degree. And she got it.
In 1876, she sought to practice in the highest court in the land. The high court refused to admit her, stating, “none but men are permitted to practice before [us] as attorneys and counselors.” Obviously, Lockwood was not deterred. She lobbied Congress and convinced representatives to pass that act relieving women “of certain legal disabilities.” A year later, she argued her first case before the Supreme Court justices. In 1906, Lockwood went before the bench again representing the Eastern Cherokee against the government, securing $5 million for her clients.
Lockwood even ran for president in 1884, though women didn’t have the right to vote. Her reasoning? Nothing was stopping men from voting for a women president. And though she didn’t win, and never got a chance to vote herself before her death in 1917, Lockwood was instrumental in the women’s suffrage movement, helping to secure the vote for millions who would follow her. She was a woman way ahead of her time, with notions so enlightened they have yet to fully come true more than a century after her death.
You’ve come a long way, baby?
Americans still have yet to elect a woman president, and “lady lawyers” are still far outnumbered by their male counterparts when it comes to oral arguments before the Supreme Court. On Sept. 26, the Washington, DC Women’s Bar Association held an event featuring some of the legal powerhouses who have argued before the most powerful justices in the land, discussing why the disparities still exist. ”I look forward to the day when we won’t have to do this anymore,” said Amy Howe, a co-founder and reporter for SCOTUS Blog and former Supreme Court advocate.
She was preaching to the converted, however. As the audience was almost exclusively made up of female attorneys, but for “one intrepid male soul in the room,” as Jill Dash, president of the bar association and American Constitution Society attorney, pointed out.
The problem with that absence is that in order for more rapid change to occur at the high court and beyond, men in power have to make conscious decisions to shift the dynamic, according to Kelsi Corkran, a partner in the appellate practice of the Washington, DC law firm, Orrick, and a former clerk to justice Ginsburg. “When I was a clerk I would never see anyone who looks like me arguing before the court,” Corkran said.
Consciously or not, that absence influenced Corkran’s perceptions of what was possible for her, and she points out that it’s much worse for women of color, who have even fewer role models. She got her first oral argument at the high court because a male partner at her firm insisted and positioned her for a case.
But relying on kindness isn’t exactly a plan, as Lockwood’s experience showed. And Corkran can’t help feeling that unconscious bias is what prevents people from choosing a female attorney to argue their high court matters.
Her former boss, justice Ginsburg, is also concerned. In her 2016 book In My Words, Ginsburg cited Lockwood and argued that, although there have been improvements with respect to gender equality in the legal field since the 1970s especially, her early work to achieve equality is not complete. The country needs women judges and advocates, Ginsburg, said, because wisdom isn’t gendered but experience can be. “Our system of justice is surely richer for the diversity and background of its judges. It was poorer when nearly all were cut from the same mold,” she wrote.
The lack of women advocates at the Supreme Court bar is especially pernicious in corporate cases. Only three women argued on behalf of big companies in the 31 business-related cases the high court heard last term. And only 17% of total cases in the 2018 term were argued by women, the panel reported. As Loren Alikhan, DC solicitor general, pointed out to the audience of female attorneys at the bar association event, the vast majority of opportunities for women to argue at the high court come from government, and she says she makes it a point to position her office’s attorneys for such cases.
Still, it’s a myth that the justices favor male attorneys, Corkran says. That perception may well influence the extent to which women are hired to argue the big cases that go before the court, but it isn’t correct. In her experience, whatever perniciousness there is in the hiring of female attorneys, it doesn’t extend to the hearing women advocates get when representing. “I am really confident that judges and justices take women seriously,” Corkran said.
Lockwood would no doubt be delighted to hear that.