“To Do Justly”: The Integration of Women into the American Judiciary

Abstract

In 1869, the state of Iowa admitted Arabella Mansfield to the Bar, making her the first woman to receive a license to practice law in the United States (Epstein 1993, 49). That same year, Myra Bradwell applied for an attorney's license in the state of Illinois. When the state refused her, she appealed her case all the way to the U.S. Supreme Court, which denied her claim by an eight-to-one vote (Bradwell v. Illinois 83 U.S. 130 [1873]). In his concurring opinion, Justic Joseph Bradley argues that, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator” (83 U.S. 130 [1873]). Ironically, shortly before the Supreme Court announced its decision, another woman in Illinois, Adah Kepley, attained a license to practice law. The judge who granted this license believed that her admission to the Bar was “proper and in accord with the spirit of the age” (Berkson 1982, 288).See Bowman (1998/99) for a list of biographies of these early women lawyers.

Judging Women

“…Scholars have examined whether female judges rule differently in subject areas perceived to involve women's issues or areas where women's supposed liberal leanings will make a difference, such as criminal law matters (Songer et al 1994;Jackson 1997;Martin & Pyle 2000). Although the overall picture is unclear (Palmer 2001), the general story appears to be that female judges support the rights of women more strongly than do their male colleagues (Martin & Pyle 2005;McCall & McCall 2007;McCall 2008).…”

Structuring Gender's Impact

“…The authors find that regardless of political party affiliation, female justices tend to support the female litigant in divorce cases more so than their male brethren. Although a majority of the findings suggest that gender-based voting differences exist among justices in women's rights cases, the results are inconsistent at times (Palmer, 2001).…”

“…The variable considers the percentage of practicing female attorneys and the percentage of first-year entering female law students. Palmer (2001) suggests that the overall number of women in the legal field "has had a profound impact on the profession and the legal rights of women" (p. 238), and thus I include a variable representing the growth of females in the legal profession as a whole. Palmer specifically suggests that the influx of female attorneys is important because female lawyers might present different types of legal arguments to judges who might represent a more female-oriented view of the law (see Sherry, 1986), and this might influence the voting behavior of the state high court judges.…”

“…I hypothesize, like several sociologists have for other professions (Dworkin, Chafetz, & Dworkin, 1986;Floge & Merrill, 1986;Kanter, 1977;Yoder, 1991), that women justices may be more willing to express behavioral differences that do exist once the proportion of women extends beyond tokenism. In short, this research taps both of Palmer's (2001) questions by positing that the answer to the first (Does gender matter?) partially depends on understanding the answer to the second (Does increased gender representation matter?…”

Understanding Disadvantage Partly Through an Epistemology of Ignorance

“…Reports on women's under-representation in the judiciary emanate from a wide variety of regions (Formisano and Moghadam, 2005) and jurisdictions, including England and Wales (Department for Constitutional Affairs, 2004), Northern Ireland (Feenan, 2005), the USA (Palmer, 2001), Canada (Backhouse, 2003), Australia (Davis and Williams, 2003), Brazil ( Junqueira, 2003), Egypt (Khalil, 2003), France (Boigeol, 2003), Ireland (Bacik et al, 2003), and The Netherlands (de Groot-Van Leeuwen, 2003 (Malleson and Banda, 2000). The questionnaires were adapted to reflect material differences in legal practice and judicial posts between Northern Ireland and England and Wales.…”