Women at the Bar-a Generation of Change November 2, 1978

• Publication year: 2011

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 3SPRING 2011

Women at the Bar-A Generation of Change November 2, 1978

Hon. Ruth Bader Ginsburg(fn*)

Rereading my November 2, 1978 remarks, I am heartened by the changes from that day to today. As Joan C. Williams develops in Reshaping the Work-Family Debate, there is a great distance yet to travel. Observing my children's and grandchildren's lives, however, I am hopeful for the future. And how good it is to have two sisters-in-law with me on the Supreme Court bench. Visitors can see we are here to stay-no longer one-at-a-time curiosities.

Hon. Ruth Bader Ginsburg November 1, 2010, Washington, D.C.

I was a first-year law student in 1956-57, part of an entering class that included 9 women among some 500 men. Few of us then had an acute sense something was amiss in the resemblance, the sameness our classmates displayed. But we did wonder why women's small numbers in law school had not increased-indeed, had gone down since 1950. Could it be discrimination, a restrictive quota system? We asked one of our best friends on the faculty. Certainly not, he assured us. In selecting from the large, gray middle of the application pile, the law school gave weight, he said, to anything strange, unusual, singular about an applicant. Using that criterion, a bull fiddle player gained a plus, so did a woman.

Several times in the 70s, I recalled that response-there's something strange or singular about women in law. It came to mind in 1971 when Professor Philip Kurland, an eminent constitutional law scholar, wrote in the Harvard Civil Rights-Civil Liberties Law Review, questioning the need for the ERA.(fn1) Constitutional amendments may be necessary to protect minorities or the unenfranchised, he said. But women are not a minority. They have had the vote for more than a half century; they outnumber men in our society.

The something strange or singular image was in my head again the next year, 1972, when former Harvard Law School Dean Griswold, then serving with devotion and diligence as the nation's Solicitor General, submitted appellees' brief in Frontiero v. Richardson,(fn2) one of the major 1970s sex equality cases. The brief explained to the Supreme Court why sex should not rank as a suspect category. That label, and the analysis attending it, the Government's Frontiero brief urged, should be reserved for politically powerless, discrete, and insular minorities. Women, of course, are a numerical majority in this country, the brief continued, and surely are not disabled from exerting their substantial political influence.

Not to be outdone by a Harvard predecessor, Yale Professor Bork, in a swan song as Solicitor General, a brief amicus curiae filed January 1977 in Vorchheimer v. School District of Philadelphia,(fn3) wrote that gender-based classification raises a question more "political" than "constitutional" because of "the fact that women are not a political minority."

Curious that gentlemen with extraordinary minds, and rare talent for making relevant connections, fastened on the census head count, but overlooked, or underevaluated, the point beneath our faculty friend's comment in 1956-woman's virtual absence, her strangeness, singularity in arenas where laws and political decisions are made.

Were women themselves largely to blame? Was it their own laziness or sense of insufficiency, up to the current decade, that kept them outside? When the gates were closed, that was not an available argument. Law schools and business schools were way-pavers for their graduates. They supplied recruits for posts with power potential in government and the economy. Closed gates at these major entry points had a disproportionately harmful effect.

Why did it take distinguished lawmen so long to open the gates? Tradition was a large factor. For most of our nation's history, the concepts "woman" and "lawyer" were thought incompatible.(fn4) Until 1920, there was the excuse that citizens who had no vote, no voice in making laws, had no business administering, enforcing, or interpreting them.

But the franchise gained in 1920 had no immediate ripple effect. A 1922 Barnard College graduate recalled: At the time I was ready to enter law school, women were looked upon as people who should not be in law schools. I wanted very much to go to Columbia, but I couldn't get in. I went over to see Harlan Stone, Dean Stone, who was later Chief Justice of the United States, and asked him to open the law school to women. He said no. I asked why. He said, we don't because we don't, and that was final.(fn5) (Constitutional law students may recall that some fifteen years after this episode, a celebrated footnote appeared in Justice Stone's Carolene Products opinion(fn6)-a seed note for the suspect classification doctrine later developed.)

Columbia Law School came round on the woman question in 1928, late, but over two decades before Harvard Law School opened its gate to women. In 1925, the Columbia law faculty reported candidly the reason for holding the line-a reason withheld by former Dean Stone. The story, as told in a 1925 issue of The Nation:The National Woman's Party wants President Butler to admit women to the Columbia Law School. Many times in years before the National Woman's Party was born, women tried to get into the Columbia Law School, and the walls of the masculine sanctuary always stood firm. President Butler long ago turned decision in the matter over to the law school faculty, but a large majority of the professors resisted imprecations, pleas, and demands from candidates, organizations, even from benefactors of the school. This defiance of the laws of change and the tendency of the times would be magnificent if it were wholly a matter of principle. The faculty, however, has never maintained that women could not master legal learning or that they should not be made to endure the frank and shocking language of the law. No, its argument has been lower and more practical. If women were admitted to the Columbia Law School, the faculty said, then the choicer, more manly and red-blooded graduates of our great universities would turn away from Columbia and rush off to the Harvard Law School!(fn7) The 1925 Nation article concluded with an editorial comment. It suggested that both Harvard and Columbia enter a pact to dilute the red blood with a little common sense.

Enough said of the closed-gate era. Let's return to the 50s and the snail's pace at which women's entrance into law school increased up to the late 60s. Chilling effect was a concept familiar in constitutional law in the 50s and 60s. In the free speech and press context, it was a mainstay of the Supreme Court's 1964 opinion in New York Times v. Sullivan.(fn8) It appeared in earlier decisions sensitive to the right of association, NAACP v. Alabama(fn9) in 1958, for example. Most recently, the Supreme Court has indicated growing awareness that traditional classification by gender, by casting the law's weight against change, serves to chill exploration by men and women of their full potential as human beings.(fn10)

Surely there was a chill wind for women in the law schools of the 1950s, although many of us barely noticed it while we were there. It was expected, taken for granted. Our sense of injustice was not aroused until years later when younger women, many of them touched deeply by the experiences in the 1960s civil rights movement, said the signpost at the gate was wrong. It should be changed from "Welcome to the Strange and Singular" to "Women are Wanted by the Law Fully as Much as Men Are."(fn11)

To review quickly some of the chilling factors. When women entered law schools in the 1950s, some of our classmates, our teachers, even our deans, asked what we were doing in law school occupying a seat that could be held by a man. More often than not, I believe, the question was not intended to wound or offend. Some thought it a good-humored ice-breaker. Others were realists. A 1963 survey of placement offices at sixty-three law schools tells the...