Topic for Assignment: Representation of women in judicial positions and the impact of their presence in the Judicial system historically
Primary Source (1872): https://supreme.justia.com/cases/federal/us/83/130/case.html
Secondary Source: http://publications.lakeforest.edu/cgi/viewcontent.cgi?article=1022&context=allcollege_writing_contest
In 1869, Myra Bradwell (38-years-old and wife of Cook County Judge, James Bradwell), applied for a license to practice law in Illinois. However, Bradwell’s application to the state bar was denied because was a married woman. The justification that the Illinois Supreme Court gave for their verdict, was that since she was a married woman, she “would be bound neither by her express contracts nor by those implied contracts which is the policy of the law to create between attorney and client.” While this response makes relatively no sense in today’s world, up until 1874, Illinois law was still heavily influenced by English Common law–which included the concept of “coverture” in marriages. Coverture was based upon “the biblical idea that at marriage the male and female become one flesh. Under the law they become one person and that person [is] the husband” (a relatively archaic idea given that it first was initiated in the Middle Ages). Essentially, women lost their identity as an individual upon marriage and as a result, were “legally barred from entering into contracts”–a necessary right needed in order to practice law. Additionally, because of coverture, married women”were legally invested with nearly as few rights as Negroes”. When Bradwell was notified of their verdict and the reasoning thereof, she fought back and responded by citing various court cases, reports of women being admitted to law school across the country, Article IV (section two) of the United States Constitution, and the Fourteenth Amendment. When the court was forced to respond to her case once more, they denied her application again; however, now it wasn’t because she was a married woman, but simply because she was a woman. This time, instead of citing the law and her marital status, the court cited personal opinions and prevailing social constructs regarding women and men belonging in “God-designated” separate spheres.
Following this response, Bradwell took her case to the United States Supreme Court hoping to find justice. However, she received a similar verdict from them as well. In their response, they referred to the nature of her gender by stating:
“The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex and condition that is qualified for every calling and position.”
While her marital status wasn’t referenced by the national court to the degree that it was in the Illinois Supreme Court, her gender became the primary evidence used against her (unsurprisingly). Additionally, the Supreme Court also referred to the need to “protect” women from judicial work because of woman’s fragile nature. In response to this, Bradwell stated: “…if the courtroom atmosphere was so odious as to be deemed unfit for women, then the court should reform the courtroom atmosphere and not seek a solution by keeping women out of the court.” Ironically, one day prior to her case being put before the Supreme Court, the justices supported the Slaughter-House Cases which advocated for the rights of all citizens in regards to occupational aspirations under the Fourteenth Amendment (the case was brought to the Supreme Court by a group of disgruntled White men–probably why it was treated differently than Bradwell’s case). Additionally, while the court advocated for “the right of any citizen to follow whatever lawful employment he choose to adopt” without conditions in the Slaughter-House cases, in response to Bradwell’s case, they stated that for women, there were conditions that applied to their occupational aspirations because they lacked the “highly special qualifications” needed.
Because Bradwell was a woman who was “attempting to enter the sanctum sanctorum of men, everything objected to the previous day (in the Slaughter-House Cases) had become null and void”. Essentially, the all-male United States Supreme Court of this era did not want the patriarchal nature of the judiciary to change and because of this, were unable to look at the case objectively. This belief that the judiciary was a place for men alone persisted well into the 20th century and can be seen in another all-male United States Supreme Court’s reaction to the consideration of Florence Allen to become the first female United States Supreme Court Justice. However, despite the Supreme Court’s ruling against her case, Bradwell continued to fight for women’s rights in Illinois and because of her work, a bill was passed in the Illinois Legislature in 1872 which stated that: “…no person could be precluded or debarred from employment, except military, on account of sex”. As a result of this bill being passed, Alta M. Hulett (a young woman who admired Bradwell), was able to become the first female appointed to the Illinois bar (upon hearing this, one of the justices who had served on the Illinois Supreme Court that denied Bradwell twice, said that if Miss. Hulett was his daughter, he would have disinherited her) and in a sense, Bradwell “finally won her case”.
The case of Myra Bradwell is significant because it shows that not only were women in general at a disadvantage when trying to attain positions within the justice system (gender roles, the nature of gender, expecations, sexist beliefs, etc.), but also that married women were intentionally barred from judicial service more so than those who were single. Lavinia Goodell, whose case happened around this same time, serves as an example of the differing difficulties that women faced based upon their marital status. While Goodell was initially excluded from joining the Wisconsin bar, she was eventually admitted and was not subjected to additional arguments against her due to her marital status. Perhaps this greater degree of success that she enjoyed could be attributed to the fact that she was unmarried throughout her battle for equality–resulting in one less hurdle for her to overcome. Although coverture was removed from the state laws of every state in the nation by the 1880’s, married women still experience exclusion in the justice systems in more modern times as well. This can be seen in the 1983 case of Bobb V. Municipal Court, where Ms. Bobb was subjected to various questions regarding her marital status when being considered for jury duty–something married men who were also being considered did not have to endure. Aside from coverture and the unique struggles married women faced in the judiciary, Bradwell’s case also shows further evidence that not only does gender matter in the courts, but also that women can have a positive impact within the justice system. Through her determination, she was able to carve a path for the women who followed her and directly influenced the elimination of the sexist laws that curtailed hers and other female judicial pioneer’s aspirations.