Rebels at the Bar

by Jill Norgren

  In 1886 women activists in Chicago created a similar organization after study led them to understand the number of crimes involving sexual and physical abuse whose victims were women and children. They were determined to make the legal system protect these victims, and convinced several women’s clubs and associations in the city to support the work of what became the Protective Agency for Women and Children (PAWC).52

  The organization’s mission was broader than that of New York’s WWPU. PAWC gave free legal assistance to women and children who had experienced physical and sexual crimes, as well as non-payment of wages. PAWC staff and volunteers also lobbied for reform of laws that cobbled their clients, and undertook public education campaigns that would help to secure social justice. This ranged from laws affecting repossession of working women’s sewing machines to statutes defining seduction, age of consent for sex, and proof of rape. Like Mother Stewart and her allies, these Chicago women went into courtrooms in support of clients, vigilantly watching to make certain that judges followed the law. When PAWC instituted a campaign to replace corrupt justices, particularly ones who systematically dismissed criminal assault cases involving husbands who beat their wives, Caroline Brown, PAWC’s chairwoman, spent a year documenting the behavior, and judgments, of local judges.

  PAWC activists carved out a mission largely using non-licensed law activists. As legal training and the profession of law became more formal, with more stringent state laws governing the practice of law, the independence and influence of these non-licensed activists diminished.53 Charlotte Holt was one of the few women involved with PAWC who could, or would, pursue formal legal training in order to become a licensed cause lawyer.54

  These lay lawyers, along with the first generation of women members of the bar, were a bridge to the next generation of women attorneys who understood what had been involved in the early fight to join the profession, and the varied nature of the first generation’s philosophies of how to practice law. The stories of this second generation are as noteworthy and compelling as those of the first generation. Mrs. Mary G. Quackenbos, a wealthy New Yorker, graduated from New York University’s law school at the turn of the century. Like Mary Greene, she took up the study of law to manage her property but became interested in the problems of the poor. After law school she joined the Legal Aid Society and in May 1905 used her money to establish the People’s Law Firm. The Legal Aid Society, she said, served people with no funds. This left the working poor either without counsel, or prey for shyster lawyers. At People’s Law she gave working men and women quality representation, “at a cost within their means.”55 Cases came to her by word of mouth, and from judges in the courts, charitable organizations, and a local settlement house. Quackenbos began alone and within two years had a stenographer and three lawyers working with her.56

  Rosalie Loew graduated from New York University several years before Quackenbos. While law school and the bar presented no hurdles, Loew did not have Quackenbos’s wealth, and in addition to being a woman, she was Jewish. In an article published by Metropolitan Magazine, Loew wrote circumspectly that women lawyers must “take their place in the ranks by their brothers and scale the walls … handicapped [because of] the energy required overcoming a probable prejudice.”57 She practiced briefly with her father and then became the first woman lawyer at the New York Legal Aid Society. Her case load was large, eighteen to twenty-three cases on the docket a day, “scattered through the eleven divisions of the Boroughs of New York.”58 Many were wage claim cases.

  Florence Kelley had the advantage of being born into a well-established Pennsylvania family deeply involved in reform advocacy, including abolition. Kelley’s father was a lawyer, judge, and congressman; his daughter, born in 1859, learned about law and politics at a young age. While a student at Cornell University, Florence Kelley began researching the legal status of children. As a graduate student at Zurich University she was drawn to socialist groups, and translated into English Friedrich Engel’s Condition of the Working Class in England.

  After her return to the United States Kelley, “intellectual, socialist, and reformer,” devoted herself to fieldwork investigations, writing articles about bettering labor conditions, and lobbying for protective labor laws for women and children.59 While she was at Chicago’s Hull House, the governor of Illinois appointed her to the newly created position of state factory inspector. To facilitate her work, Kelley took a degree from Northwestern Law School and by 1893 was enforcing state regulatory powers through the prosecution of manufacturers for violations such as employing women to work over eight hours a day. In 1899, Kelley agreed to head the newly created National Consumers League (NCL). She solidified her reputation in this position, continuing, with colleagues such as Josephine Goldmark, to refine the use of social and economic data (“fact-based jurisprudence”) to defend protective labor legislation against legal challenges.60 Even more than Ada Bittenbender, Kelley defined the combined role of cause lawyer and reform advocate, and in the work of the NCL created a model that influenced twentieth-century civil rights and civil liberties organizations.

  CONCLUSION

  The entrance of women into the profession of law was nothing short of a revolution. In the last quarter of the nineteenth century, the “rebels” of this book succeeded in breaking into one of America’s most influential professions. At this time, men controlled the profession’s knowledge base, credentialing, client referral system, and networking. In order to end this male monopoly, these women had to challenge patriarchy, law, arrogance, prejudice, and the fear of change. They succeeded in what their opponent, Judge Edward Ryan, called “a sweeping revolution of social order.”

  Nevertheless, picturing this revolution as a coup would be incorrect. The entrance of women into the legal profession is not served by hagiographic history. Nineteenth-century women did gain admission to a number of law schools, and achieved membership in numerous bar associations. With the exception of Myra Bradwell, the “rebels” committed themselves to the lifelong practice of law. They also wrote, lectured, engaged in political activities, and theorized about critical legal issues ranging from the nationalization of domestic law to reform of the judicial and criminal justice systems. Lay women “lawyers” also augmented contemporary cause work in important ways, innovating services for poor women and children at legal aid societies.

  Regardless, by the end of the nineteenth century, while the number of women lawyers in the United States had grown, male attorneys dominated the numbers: in the national census of 1900, one thousand women identified themselves as attorneys, compared with one hundred thousand male attorneys. By 1900, only twenty women lawyers had been admitted to the U.S. Supreme Court bar. Many law schools continued to refuse to admit women. Harvard Law did not open its doors to women until 1950.

  Once they passed the bar, nineteenth-century women found that employment opportunities were anything but equal. A critical lesson of the revolution centered on the fact that the federal government, corporations, and the larger, more prominent law firms refused to hire women attorneys. Women often made the federal government a target of protest when they contested this systematic employment discrimination. They intended to hold elected officials accountable, in the most basic manner, for the breech of civic ideals. They demanded that they be shown, through the hiring and appointment of women, that all citizens are created equal—that their civic ideals were not sham notions. They learned, as an additional lesson, that while sweeping away the most basic forms of exclusion required two decades, broad change would take more years than the days of their lives. This larger change would bring parity in the admission of male and female law students, the hiring of women by government and corporations, as well as women on the United States Supreme Court and women lawyers using their credentials to run for public office and to take up high non-elective office. These changes, however, would take another century.

  The letters of Equity Club members demonstrate vividly that these first women lawyers va
ried tremendously in their opinions. By no means did these “rebels” see eye to eye on all personal, political, or professional issues. Nevertheless, the Equity letters are marked by tolerance. There were differences but there was also, critically, sisterhood.

  The “rebels” pondered many issues: how to educate themselves in the law, how to practice, where to practice, with whom to practice, what fees to charge (or not charge) and, yes, comportment and the wearing of hats. Yet, even as they barely had a foot in the door, these first women attorneys, unlike the lay women lawyers, appear to have accepted that they would enter a profession defined by men, rather than creating a parallel field of female lawyering.

  It is impossible to know whether these women would have tired of the slow pace of change, of their very slow climb into the profession of law. With their sisters in the larger women’s rights movement, they faced deeply engrained patriarchal attitudes. These women lawyers, along with women doctors, ministers, professors, and journalists, were the vanguard. They were on a public stage even when they did not wish to be, representing the struggle for equal rights. Some “rebels” delighted in the role; others tried to guard their privacy. Each of them outwitted history by being models of female accomplishment and independence. Each has a place in the history of law and women’s advancement.

  Epilogue

  FOUR WOMEN HAVE now served as an associate justice on the Supreme Court of the United States. Sandra Day O’Connor, the first of these justices, was not appointed until 1981. For a short while after O’Connor retired, Justice Ruth Bader Ginsburg, who joined the court in 1993, was the sole female member. In 2009, U.S. district court judge Sonia Sotomayor joined her. Elena Kagan, the first woman dean of Harvard Law School, was confirmed a year later.

  The first generation of women lawyers imagined such success and status for themselves but were barred by custom, prejudice, and, in some instances, law from the most prestigious positions in their profession. Early in 1912, after the death of Justice John M. Harlan, the District of Columbia Woman Suffrage Association forwarded to President William Howard Taft the names of three first-generation women lawyers, Mrs. Ellen Spencer Mussey, Miss Emma M. Gillett, and Mrs. Belva A. Lockwood, as possible candidates to fill the Harlan vacancy. Association president Julia White Leavitt wrote to Taft, “As you seek a suitable lawyer … we beg to remind you that we have capable women lawyers in this District, who have been more than a decade practitioners before the United States Supreme Court.”1 Leavitt also reminded the president of women’s growing voting power. The position went to New Jersey Supreme Court chancellor Mahlon Pitney.

  Women were challenged in their ambitions even when they sought the most local positions. In 1870 Amelia Hobbs was elected justice of the peace in Jersey County, Illinois. Because of her sex, Hobbs’s right to take office was contested, and it is unclear whether she ever took office.2

  Women lawyers sought elective and judicial positions even before they could vote, usually as candidates of third parties. In the 1880s Belva Lockwood ran twice for the presidency. In 1891 and 1893 temperance activist Ada Bittenbender ran for the office of Nebraska Supreme Court judge on the Prohibition ticket, each time winning several thousand votes. Catharine Waugh McCulloch lost her 1888 campaign for state’s attorney but in 1907 defeated a male candidate for the office of justice of the peace. She was re-elected and served until 1913. McCulloch’s victories inspired lawyer Florence E. Allen to run her successful campaign of 1920 for judge of the Cuyahoga County, Ohio, Court of Common Pleas. Fourteen years later Allen was confirmed as the first woman to serve as a federal appeals judge. She remained at the Sixth Circuit appeals court until her retirement in 1959. Allen was often spoken of as a possible nominee for the U.S. Supreme Court. However, both President Franklin Roosevelt and President Harry Truman passed up opportunities to send her name to the Senate as a nominee. Constance Baker Motley had a distinguished career from 1946 to 1966 as counsel for the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund. In 1966, after nomination by President Lyndon B. Johnson, she became the first African American woman federal judge.

  As of 2012, four women have served as associate justices of the Supreme Court of the United States: left to right, Sandra Day O’Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. (Courtesy of Steve Petteway, Collection of the Supreme Court of the United States.)

  In 1900 twenty women were members of the U.S. Supreme Court bar. The number increased gradually in the new century. The federal government slowly began hiring women attorneys after ratification of the Nineteenth Amendment. This gave women lawyers greater opportunity to argue cases in the federal courts, including the Supreme Court. Annette Abbott Adams served briefly in 1920 as an assistant attorney general in the Justice Department, charged with enforcing the Eighteenth Amendment (prohibiting the manufacture, sale, or transportation of intoxicating liquors) and the National Prohibition (Volstead) Act. During her year in Washington, Adams argued five Supreme Court cases, losing only one.

  Mabel Walker Willebrandt followed Adams at the Department of Justice, and from 1921 to 1929 was also responsible for enforcement of the Volstead Act. She made aggressive use of tax laws in the fight against illegal liquor, earning national respect as “Prohibition Portia.” Her friend, Judge John Sirica, said, “If Mabel had worn trousers, she could have been President.”3

  In the 1930s and 1940s, at the Internal Revenue Service, the Department of Labor, and, later, the Justice Department, extraordinarily talented women, including Helen R. Carloss, Bessie Margolin, and Beatrice Rosenberg, also earned respect prosecuting Prohibition Act and tax-related cases, as well as participating in fair labor standards, equal pay, and age discrimination cases. From 1943 to 1972, as an attorney in the Justice Department’s criminal division, with an expertise in search and seizure law, Rosenberg argued more than thirty cases before the Supreme Court. In the 1970s, the Office of the Solicitor General (OSG) began to hire women lawyers. Harriet Sturtevant Shapiro was brought in, followed shortly by Jewel Lafontant, appointed by President Richard Nixon as deputy solicitor general. She was the first woman, and the first African American, to hold a high position at OSG. In 1993 Janet Reno, from Florida, became the nation’s first woman attorney general.

  Southern women were not represented in the first generation of attorneys. In the second generation Betty Runnells of Louisiana graduated from Tulane University in 1898 and was admitted to the bar in Louisiana. Several Mississippi women born in the 1890s became influential members of the profession. Helen Carloss was one. Lucy Somerville Howorth was another.4 Howorth came from a pro-temperance, pro-suffrage family, graduated from Randolph-Macon College, and after being denied admission by Columbia Law School because she was a woman, entered the University of Mississippi law school. Howorth graduated at the top of her class in 1922 but then had the usual struggle in attracting clients and building a reputation as a respected solo practitioner. Eventually, she won two appointments that advanced her career, one as a member of the Mississippi Board of Bar Examiners and a second as the commissioner (magistrate) of a United States district court in Mississippi, where she heard many civil and criminal federal cases. In 1928 she married, and in 1931 Howorth was elected to the Mississippi House of Representatives. A lifelong Democrat, she moved to Washington, D.C., with her husband after Franklin Roosevelt’s election, and spent two decades in various federal positions.

  Burnita Shelton Matthews grew up visiting the Copiah County, Mississippi, courthouse where her father served as clerk of the chancery court and tax collector.5 She married in 1917, and with her husband’s encouragement entered law school in Washington, D.C., working during the day as a clerk at the Veteran’s Administration, taking classes at night, and picketing the White House for woman suffrage on weekends. She passed the bar in 1920 but, unlike Helen Carloss, was unable to secure a lawyer’s position at the Veteran’s Administration. Believing that she would not be hired for a government position, she
opened a law firm with Laura Berrien and Rebekah Greathouse. Matthews became an advocate for women’s inclusion on juries after ratification of the Nineteenth Amendment. In 1934 she became the president of the National Association of Women Lawyers (NAWL), which had grown from a women lawyers club in New York City with, in 1899, eighteen members to a national professional organization.6 In 1949 thirty new federal district court judgeships were created. Matthews’s name was sent to President Truman; confirmed, she became the nation’s first woman federal district court judge. Despite the example of Judge Florence Allen, the Washington Post chose to discuss how to handle the powder room question rather than Matthews’s qualifications.7

  The powder room question is only one of several new decorum issues. Fussing over whether to wear a hat in court has given way to women judges determining where to robe, or what style of neckpiece to wear, while female attorneys seek to determine an appropriate balance between feminine attire and pinstripes. In the late 1970s Nancy Gertner, then a young criminal attorney in Boston, shaped a courtroom identity complete with red suit—skirt, not pants, lest any juror find her too masculine.8 Female attorneys on Wall Street, and in the corporate world, always concerned about making partner, ponder these professional dress issues with even greater concern.