The ATTORNEY GENDER GAP in U.S. Supreme Court Litigation

Article excerpt

In 1869, Iowa granted Arabella A. Mansfield a law license; it was the first law license received by a woman in the U.S. In 1870, Ada Kepley graduated from the Union College of Law (now Northwestern University) and earned the status as the first female to complete law school.1 Progress by women committed to a legal career seemed to have been made. However, at around the same time, Myra Bradwell was denied admission to the Illinois State Bar simply because Illinois did not believe that women were suited for a legal career; in 1873, the U.S. Supreme Court, via Justice Bradley's concurrence, agreed with the Illinois Bar, concluding that "The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother."2

A century later, women still comprised only 4.7 percent of all practicing attorneys in the U.S.3 Betty Friedan's proclamation that "The feminine mystique has succeeded in burying millions of American women alive,"4 had reinvigorated the women's movement and encouraged women to attempt entry into non-traditional careers such as the practice of law.5 Yet, despite the civil rights and women's movements of the 1960s, as well as passage of Title VII of the Civil Rights Act of 1964, women were still outsiders looking in the halls of justice.

As Latourette describes in her 2005 article, the first women lawyers confronted a culture that was hostile to the notion that women could or should participate in the domain of law as well as formal restrictions that made access to the legal profession exceedingly difficult.6 Unsurprisingly, therefore, in 1870 there were only five women lawyers. This number had increased to 75 in 1880. In contrast, the other 64,000 practicing attorneys in 1880 were men.7 In an era where cultural norms and economic reality prevented otherwise intelligent women from departing from the domestic sphere, those who chose to make that break suffered for it. Many women lawyers, like Myra Bradwell, were denied admission to state bars, most women were self-employed or employed in low level positions, and all women lawyers were barred from the male-dominated professional societies of the time.8

By 1960, the number of American women lawyers had grown to 7,543, or 3.5 percent of the total number of lawyers. In 1980, women accounted for 12 percent of all lawyers9 and, as of 2006, 30.2 percent of American lawyers were women.10 Despite the increase in the number of women attorneys, discrimination and gender bias in the legal field persists. For example, as of 2006, women occupied less than a quarter of the U.S. district court and courts of appeals seats, one woman sat on the Supreme Court, and only 20 percent of law school deans were women.11

At the same time, a large number of women are entering and graduating from law school. By 2003, women made up nearly half of the law school student body nationwide.12 For the 2006 entering class, that number had fallen slightly to 46.9 percent.13 The gap between the number of women entering/completing law school and holding prestigious legal positions indicates that contemporary women lawyers still face serious barriers to advancement and access to power.

Women lawyers at the Court

One of the most serious problems that women lawyers face is in gaining access to the U.S. Supreme Court. While society has come a long way since Bradwell v. Illinois, there remains a dearth of women lawyers participating in Supreme Court litigation. Because the Supreme Court makes policies that affect the entire nation, and the attorneys that participate in litigation before the Court, in turn, influence the justices' decisions,14 the makeup of the Supreme Court Bar is of paramount importance. Moreover, to the extent that attorney gender affects judicial decision making, including Supreme Court decision making,15 the potential variation in the participation rates of male and female counsel is of substantive importance.

In addition, the gender diversity of the Bar is itself important given the Court's own pronouncement that diversity is a legally recognized compelling interest. …