Topic for Assignment: Representation of women in judicial positions and the impact of their presence in the Judicial system historically
Secondary Source: Cook, Beverly B. 1981. “THE FIRST WOMAN CANDIDATE FOR THE SUPREME COURT – FLORENCE E. ALLEN.” Supreme Court Historical Society. Yearbook 19-35. America: History and Life with Full Text, EBSCOhost (accessed November 12, 2016).
Secondary Source: https://www.supremecourt.ohio.gov/SCO/formerjustices/bios/allen.asp
Florence Ellinwood Allen was a woman of firsts within the American Judicial system. She was the first woman assistant county prosecutor in the United States, the first woman elected to a judicial office in the State of Ohio, the first woman in the United States to be elected to a state supreme court, the first woman appointed to a federal appeals court judgeship, and the first female candidate for the United States Supreme Court. In comparison to the story of Lavinia Goodell’s battle to be admitted to the bar for the Wisconsin Supreme Court, Florence Allen experienced a much smoother path to judicial success. However, while her credibility wasn’t questioned because of her gender and the perceived capabilities thereof, her gender did act as a roadblock when attempting to become the first female United States Supreme Court Justice due to the masculine nature of the judicial institution.
Before becoming a candidate for the national Supreme Court, Allen worked as a trial judge in Ohio and then later was elected to the serve as a justice on the Ohio Supreme Court. While she served in Ohio, she worked on programs to help immigrants, minority groups, and women–Allen was heavily influenced by the President Roosevelt’s New Deal policies and her own work in the women’s suffrage movement. Whenever Allen identified problems regarding the jailing of witnesses, bail policies, or administrative weaknesses in the court, she was quick to introduce her own experiments regarding court rule and to propose revision of state statutes related to the issues that arose. In many ways, her approach to social justice has been regarded as, “…compatible to that of Franklin D. Roosevelt, perhaps even more so with that of Eleanor Roosevelt.” Additionally, Allen protected citizen’s rights to non-violently picket, broadly expanded benefits for laborers, and in many other regards, was well ahead of her time on social issues. Also, while serving in the justice system, she broke down gendered ideas regarding the nature of women being too weak for the darker sides of judicial cases by working on three first-degree murder cases, one second-degree murder trial, and a perjury trial as well, within only her second year of her career in the judiciary (proving Justice Ryan from Lavinia Goodell’s story completely wrong in this regard). Continually, Allen showed that she was able to successfully supervise court processes, handle complicated evidence, and arrange legal arguments in her opinion. Allen’s capability, influence, and impact within her state judicial system caused for her to be known as the most eminent female legal professional of the 1930s and her experiences within the judicial system gave her the scholarly credentials typical of national Supreme Court Justices.
When Allen was first considered for a position in the United States Supreme Court, she was quick to address the improbability of her actually being appointed by saying that:
“Do not block in the future too optimistically because there are some things that will never happen in our lifetime. In other words, when my friends delightfully tell me that they hope to see me upon the Supreme Bench of the U. S., I know two things: First, that will never happen to a woman while I am living, and second, that perhaps it is just as well not to mention that possibility at the present time because there is a certain type of lawyer that immediately becomes fighting mad when that possibility is mentioned.”
Allen was well aware of the fact that her gender did play a role in the judicial system and in judicial appointments (it took another 50 years for the first woman, Sandra Day O’Connor, to be appointed to the national Supreme Court). From her experience in both the political and judicial spheres, she knew that, “Her membership and active participation were accepted within limits; when she offered to take on leadership roles, particularly candidacies for high public offices, the party showed little interest in giving her real opportunities”. While the consideration for being a Justice on the United States Supreme Court was an unprecedented opportunity in and of itself (since up until this point, the male sex of supreme court nominees was taken for granted), her gender did put her at a disadvantage because of cemented ideals of what a Supreme Court Justice is and is not (mentioned in Bremmer’s article as well). Essentially, while she did not face backlash on her capabilities and qualifications because she was a woman (as Lavinia Goodell did), she did face discrimination because she was a woman in a male-dominated field.
When Allen was officially viewed as a candidate for the United States Supreme court, the typical Supreme Court Justice fit under the following mold: white, protestant, of British ethnic stock, and born into comfortable urban or small town environment. Allen fit all of these categories, however she failed to meet one inherent requirement for “powerful political status” of her day–which was being the “right” (male) sex. Each time a national Supreme Court vacancy occurred within both the Roosevelt and Truman presidencies, Allen met the requirements they were looking for (for example, at one point, they wanted to replace a Justice from the Midwest–where she was born, or in another instance they wanted to replace a Justice from Ohio–where she currently lived); however, each time she was overlooked. The main reason for this wasn’t necessarily because those who appointed candidates were sexist, but rather because the social climate of her day didn’t support the notion of a woman in the United States Supreme Court. To have elected a woman to such a prestigious position in America at this time was seen as an act of political suicide by elite politicians. A Gallup poll from this time responded to news of Allen’s candidacy by asking the public the following two questions:
- “Would you favor the appointment of a woman lawyer to be a judge on the U.S. Supreme Court?”(A very large minority, 39%, were favorable.)
- “Would you like to see the next appointment to the U.S . Supreme Court go to a man or a woman?” (Only 18% wanted a woman.)
The responses to these questions show that in theory, the American public was okay with the idea of having a woman in the Supreme Court, but ultimately were not in support of actually appointing a woman to the Supreme Court in their lifetime. Supporting this notion, the Baltimore Sun claimed that: “A lot of people have recoiled from the prospect of a woman on the Supreme Court. To them the thing is almost unthinkable”. In 1949, it was reported that President Truman was “responsive” to the idea of appointing Allen to the Supreme Court. However, when he went to talk to the current members of the Supreme Court (all of which were men), he reported that: “No, the Justices don’t want a woman. They say they couldn’t sit around with their robes off and their feet up and discuss the problems”. Although their argument against Allen’s appointment was weak and Truman could have easily resisted their opinion on the matter, he was male in a male-dominated institution and as such, used a male’s understanding to justify the exclusion of women from the highest position in the judicial system.
Florence E. Allen was more than qualified for serving on the United States Supreme Court; however, her gender and gendered ideals ingrained in the judicial institution barred her from becoming yet another first. While she did live in a time where women were becoming seen as capable in institutions outside of the home, the idea of accepting a woman in a position of national judicial power had not yet seeped into the psyche of American society. No one doubted her credibility, capability, or qualifications within the justice system, but the fact that she was a woman was unable to be ignored (further supporting that gender has always played a massive role in the judicial system). Despite this, Florence Allen’s story is also evidence of the positive impact and influence that women can have within the courts. Her actions promoted equality, reform, and various New Deal policies. Although she wasn’t the first female United States Supreme Court Justice, Allen paved the way for the women that followed after her, disproved false assumptions that were associated with female presence in the courts, and also exhibited that women not only find success in judicial positions, but that when given the chance, they thrive.