A Young Woman Takes an
Old Wall Street Firm to Court
In January of 1975, Harriet Rabb submitted a complaint for a class-action suit alleging a “pattern and practice of sex discrimination” by Sullivan & Cromwell, against Diane Blank and against other women whom the firm might have refused to hire, in the United States District Court for the Southern District of New York. To defend against the charges, the firm made a surprising decision. It did not assign one of its lawyers to defend itself. Instead Sullivan & Cromwell, widely viewed as an establishment firm, selected a New York lawyer known for his attacks on the establishment.
Ephraim London, a partner in the small firm of London & Buttenwieser, came from a family of progressive lawyers. His uncle, Meyer London, won election to Congress in 1914 as one of a few Socialist Party congressmen. After graduating from NYU School of Law in 1934, Ephraim joined the firm started by his father and his uncle, which defended the rights of garment workers on the lower east side of Manhattan.
Ephraim London became known as an anticensorship lawyer. For decades, he argued and won Supreme Court cases establishing the principle that constitutional protection of free speech extended to film. Thanks to cases argued by London, Americans won the right to see such films as The Miracle from Italy (Supreme Court, 1952), Lady Chatterley’s Lover from France (1959), and Language of Love from Sweden (1971). In arguing before the Supreme Court, often defending films called obscene, Ephraim London had never lost.
Other credentials made London a sharp choice to challenge allegations of discrimination. He was familiar with women attorneys. His mother, who had met his father when she joined the law firm as a typist, later trained at night school to become a lawyer herself. His law partner was Helen Lehman Buttenwieser. She too showed antiestablishment flare. In the 1960s she raised $60,000 bail to win temporary freedom for a convicted Soviet spy, Robert Soblen, whom their firm was representing. (The spy fled bail, which was forfeited.)
Furthermore, London knew about the NYU law women and was positioned to learn more. He taught constitutional law at NYU. He had even hosted some of the women, including Kelly, in his townhouse on Washington Mews, near the heart of the NYU campus, when they needed training for moot court competition. For Rabb and Blank, London was poised to prove a canny and formidable opponent.
AT THE FILING OF DIANE BLANK’S COMPLAINT, the district court, following its usual practice, drew a name of a judge from a drum. Out came Judge Constance Baker Motley, the only woman among the court’s twenty-seven judges. During the same decades that Ephraim London was winning obscenity cases before the Supreme Court (all nine of the cases he argued), Constance Baker Motley had been winning race discrimination cases (she won nine out of ten). Despite their similar records, her path to the law had been less direct than London’s.
Constance Baker was born in 1921, the daughter of a cobbler and a seamstress who had emigrated from Nevis in the West Indies to New Haven, Connecticut. Her father became a dishwasher in a hotel opposite Yale University and later a chef for Yale’s elite secret society, Skull and Bones. “When I was growing up,” she recalled in her autobiography, Equal Justice under Law, “all of my male relatives seemed to work at one Yale eating club or another.”
She grew up in a family and a public school system that talked little about race and lots about getting a good education. No one mentioned that both her parents were descended from slaves. No one explained that the mural she passed each day in junior high school depicted the leader of a slave revolt against the crew of a Spanish slave ship, the Amistad. “We black students,” she recalled, “never raised sensitive questions about race and color, and the white students never did either.”
Although her parents urged their children to study hard, as they themselves had in the English Standard Schools on Nevis, neither parent offered young Constance much guidance toward a career. Yet soon after entering New Haven High School, located near Yale Law School, she began to imagine her future. She engaged in discussions of politics and race. She attended meetings of a local black women’s group, the Women’s Civic League. She read works by James Weldon Johnson, W.E.B. DuBois, and Abraham Lincoln—who, she learned, once said that the most challenging of all professions was the law. So at age fifteen, following Lincoln, Constance Baker Motley decided to become a lawyer. She received no encouragement. (Her mother suggested that she try hair dressing.) She came to realize that she was someone who would not, as she wrote years later, “be put down. I rejected the notion that my race or sex would bar my success in life.” She did, however, see a serious obstacle: poverty.
Her thrifty father had worked throughout her life to start a business. Just as she was entering high school, he bought that business: a small restaurant where he made lunches for local laborers. But he made the error of buying his restaurant in the late stages of the Great Depression of the 1930s. The restaurant failed. It took his savings, leaving nothing to send a daughter to college.
When Constance Baker finished high school, having completed her college prep courses (as well as three years of Latin) and graduating with honors, she had to settle for a job as a trainee in a federal program called the National Youth Administration. It paid her $50 a month to refinish old wooden chairs—the same work, she learned, being done by prisoners in a nearby jail.
In her second year on the job, she was asked to speak, in her role as president and founder of the New Haven Negro Youth Council, at a public meeting about the lack of activity at a local community center. It had been built by a local businessman and Yale trustee, Clarence Blakeslee. Standing out in a series of noncontroversial speakers, Constance Baker explained that the dominance of Yale people on the center’s board had alienated the black community. The next day she heard that Blakeslee wanted to meet her. Soon afterward, in his office, he quizzed her about why she was not in college. Her family, she explained, had no money. If she went to college, he asked, what would she do? She said she would become a lawyer. “Well, I don’t know much about women in the law,” he replied. “But if that’s what you want to do, I’ll be happy to pay your way for as long as you want to go. I am sending my grandson to Harvard Law School. I guess if I can send him to Harvard, I can send you to Columbia.”
So Columbia Law School is where she went. On the way, she did undergraduate study at Fisk and then New York University, and Blakeslee paid her way. At her graduation in 1946 from Columbia, Blakeslee, then age eighty-three, came to offer still more help. He wanted to give her the name of a partner in a New York law firm who was a “fine man”—his code, she had come to realize, for a man who was not racist—whom he believed would hire her. But, she told Blakeslee, she had found her dream job.
Months earlier, she had begun work as a clerk to a young attorney, Thurgood Marshall, counsel to the Legal Defense and Educational Fund (LDF) of the NAACP. In a few years she became one of the principal trial attorneys for the LDF. She worked on briefs for Brown v. Board of Education, which in 1954 declared unconstitutional America’s long history of segregated and “separate but equal” public education. In 1961 she argued the case that won admission for Charlayne Hunter-Gault to the still-segregated University of Georgia. In 1962 she took the lead in arguing in court and directing the massive effort that desegregated the University of Mississippi, “Ole Miss,” by winning admission for James Meredith. In 1963 she helped represent Martin Luther King Jr. when he protested segregation in Birmingham, Alabama. As she worked, she learned to take in stride the behavior that she encountered as a black attorney (a judge, for example, who made a practice of closing his eyes when a black person argued in his court) or as a woman attorney (a judge in 1949, unable to call her Attorney Motley or even Mrs. Motley, became the first person who ever addressed her as Ms.).
After Thurgood Marshall left the LDF, Motley became probably (Supreme Court historians remain unsure) the first black woman to argue a Supreme Court case. Beginning with victory in a case concerning the right to adequate counsel (for a black man sentenced to death in Alabama for breaking and entering with “intent” to ravish), she went on to win Supreme Court cases that helped desegregate American restaurants, parks, and schools. Her last case before the court in 1964, an attempt to desegregate juries, led to her one loss, 6 votes to 3. (Two decades later the Court reversed itself, allowing Motley to remark that she was ultimately, belatedly, undefeated at the Supreme Court.)
In 1966, President Lyndon Johnson—after hearing praise from his attorney general for Motley’s skill in presenting Supreme Court oral arguments and, as he said, after hearing praise for her from every civil rights leader in the country—appointed her a federal judge. When she moved into her chambers in the U.S. District Court for the Southern District of New York, a short walk from City Hall, she joined a federal trial court with twenty-four male judges. She became its first woman judge and its first nonwhite judge. She also became America’s fifth woman to serve as a federal judge and its first black woman.
Her judicial colleagues in New York did their sometimes-awkward best to make Constance Baker Motley welcome. They even made sure she could attend their traditional dinners in the famously all-male Century Club. Not for years did she learn that she had attended only because her chief judge had lied to help her. He told the Century Club that she was attending the dinners as a secretary, a woman brought along to take notes on what the male judges said.
IN EARLY 1975, DOCUMENTS FOR THE CASE of Diane Blank v. Sullivan & Cromwell began to arrive in Judge Motley’s chambers. In the formal language of Title VII litigation, the complaint filed by Harriet Rabb stated that Blank, as plaintiff, “seeks a declaratory judgment . . . to restrain defendants [Sullivan & Cromwell] from maintaining practices, policies, customs and usages which discriminate against plaintiff and members of her class because of their sex with respect to hiring and conditions of employment.” The complaint repeated many of the findings of the Commission on Human Rights, including the fact that the firm had never promoted a woman to the rank of partner.
In early April, Ephraim London filed his first crucial document on behalf of Sullivan & Cromwell. Formally but without detail, it denied most of Blank’s allegations. Following the string of denials, London advanced a series of “affirmative defenses”—any of which might, if accepted by Judge Motley, defeat Diane Blank’s case. London challenged, for example, whether Blank had filed charges quickly enough with the EEOC. And he challenged her standing to bring a class action on behalf of other women whom Sullivan & Cromwell might have discriminated against.
Buried within these challenges, familiar to any judge or attorney working on this sort of discrimination case, came a surprising one. Blank, London alleged, had come to Court with “unclean hands.” Blank, he claimed, had applied for an interview with Sullivan & Cromwell not because she wanted a job but because she wanted to file a complaint for sex discrimination. To this end, he continued, she had lied when she claimed that a partner in the firm told her that “some of the partners are prejudiced against women.” Furthermore, London asserted, in order to attack other firms, she had urged other women to lie about discrimination.
The charge of “unclean hands” surprised Harriet Rabb. She had expected the usual defenses, but not that Blank was suborning perjury. When she phoned Blank the next day, Rabb said this was the “ugliest case” she had worked on since she defended H. Rap Brown.
Soon the case took another surprising turn. In mid-April, Judge Motley received a letter from Ephraim London, with a copy sent to Harriet Rabb, in which he suggested that Motley should “ask to be relieved” from the case. Although he mentioned no specific incident, he wrote, “I believe you have a mind set that may tend, without your being aware of it, to influence your judgment.”
Characterizing her mindset, he told Judge Motley that when appointed a decade earlier, she had “identified with women lawyers who suffered discrimination in employment.” Lest he seem illiberal, he added that he hoped that she still felt identification with sufferers of discrimination. Nonetheless, urging her to leave Blank’s case, he quoted in support the words of Justice Felix Frankfurter:
Unconscious feelings may operate in the ultimate judgment, or may, not unfairly, lead others to believe they are operating. . . . The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.
Despite his turn to Frankfurter, London did not pretend that he had legal grounds for Motley’s removal. And he assured her that he did not plan to ask for her disqualification.
After receiving London’s letter, Motley did not reply immediately. A decade earlier, when she had joined the court, she had expected lawyers to “misbehave,” as she put it, because she was a woman. After all, when she was appointed, only four other women in the country served as federal judges—so lawyers might be surprised when they drew her as a judge. But from 1966 to 1975, no lawyer had ever tried to get her to leave a case until now.
While Motley delayed replying, Rabb fired back at London. Immediately she replied to him and Motley that, if his reasoning were followed,
there would not be any judge in this court who could hear this case. Indeed all judges would be disabled because each would appear other than open-minded or disinterested because each judge in the District is an attorney, of a sex. . . .
Further, Rabb pointed out, many judges had previously worked for mostly-male law firms. Fearing that London might pressure Judge Motley to leave the case, Rabb asked the judge not to depart without giving her a chance to argue that Motley should stay. Disputing Rabb’s logic, Ephraim London sent a second letter to Motley, again pressing her to leave.
While his effort to remove Judge Motley hung unresolved, London took a legal deposition, a formal interrogation of Blank at his offices with Rabb present. Blank had been dreading this grilling session. “I feel like this horrible inevitable thing,” she wrote in her journal, “is going to happen to me over which I can have no control.”
London began by asking Blank if she was now practicing as an attorney, which she was. After graduating from law school in 1971, Blank had moved to a clerkship, for Judge Charles H. Tenney, in the very court where her case was now being tried. Then, in 1973, she had teamed up with a group of friends and their friends to create her own law firm: Bellamy, Blank, Goodman, Kelly, Ross, and Stanley. Most of the partners had already done significant legal work. Carol Bellamy was a New York state senator and had been an attorney for a high-powered firm, Cravath, Swaine & Moore (later she would head UNICEF). Jan Goodman had teamed with Mary Kelly to help write the brief with Ruth Ginsburg in Reed v. Reed that led the Supreme Court to rule sex discrimination unconstitutional. Susan Deller Ross and Nancy Stanley had worked at the EEOC.
After ascertaining that Blank still practiced law, London asked her to name her law firm. Since the lawsuit concerned Sullivan & Cromwell—a firm that turned Blank down rather than a firm that had accepted her—Rabb, as legal counsel, intervened to ask what made the question relevant. London explained that he hoped to show that “Ms. Blank has embarked on a career of a certain kind” that was “consistent with the bringing of this action for certain purposes.” He did not call the career or its purposes feminist. But he added that he planned to “inquire into the question of whether or not Ms. Blank or her firm discriminates against men.”
With this sally, London proceeded to elicit the names of the other attorneys who worked for the firm. After asking if the firm employed any men, he learned that it had employed three: Christopher, Bruce, and Bill (Blank could recall only their first names), who had all worked as temporary secretaries. Pressing on, London pushed Blank to agree that her firm—which she said conducted a “general civil practice” of law—was in fact specializing in the “protection of women’s rights.” When she would not agree, he asked one of his simplest questions: “How is your telephone answered?”
“Feminist Law Firm,” Blank replied. She explained that receptionists had objected to answering repeatedly with the name of all six partners, so they agreed on this shorthand. Working from this fact, London quickly succeeded in winning an acknowledgment that, indeed, being a female attorney gave her a “certain perspective” and that her firm conducted test cases intended to be “helpful to women.”
Later in his questioning, London turned to the spring of 1970 and the first National Conference of Law Women. He asked if Blank had attended. At this point, Harriet Rabb objected—more strenuously than before—to the relevance of the question. “Do you intend,” Harriet Rabb inquired, “to ask her about every conference she went to?” London said that he might, and pressed on. When Rabb pressed back, he advised her that she was “not a judge” and suggested that Judge Motley would instruct Blank to respond to his questions about the conference.
When Blank replied readily that she had attended, London asked if she went as a “representative” of the NYU women. No, said Blank, but she and Jan Goodman had organized it. London also devoted much time to finding out about meetings of the NYU Committee on Women’s Rights, and how Blank had encouraged women to write down experiences during employment interviews that seemed discriminatory, collected complaints about those interviews, and passed them along to Harriet Rabb. Throughout this line of questioning, Rabb objected that such details seemed irrelevant in a case about discrimination by Sullivan & Cromwell.
At this point, hours into a deposition that would consume most of two days, the actors’ positions in the drama were clear: London wanted to demonstrate that Blank was the ringleader of a conspiracy that hoped to use what he called “guerilla tactics” against Wall Street law firms. Blank wanted to give credit to her colleagues in the women’s movement and to deny that anyone had lied. Rabb wanted to object that conferences and committees had nothing to do with the case, which should address one key question: did Sullivan & Cromwell’s hiring practices discriminate against women?
By late in the second day, tensions rose to a peak. When London began to focus on one of Blank’s weak points—her less-than-stellar grades, which had not qualified her to serve on NYU’s law review but instead on the less-esteemed Annual Survey of American Law—Rabb objected to his repeated use of the phrase “isn’t it a fact.” Her objection to the form of his questions, London insisted, showed that Rabb never learned how to conduct a deposition. “I cannot believe,” he told her, “that anyone who passed the bar exam could be as obtuse as you pretend to be.”
As the ordeal neared completion, London tried to show that Blank, too, was either obtuse or obfuscating. Most tellingly, he challenged Blank on her claim that when she was looking for a job, Sullivan & Cromwell “hired male applicants whose qualifications were less than or equal to the plaintiff’s.” London asked Blank if she could name one of those applicants. “No,” she said. Then, London asked, on what facts did she rely for making her complaint? When Blank responded that the complaint grew out of the findings of the NYC Commission on Human Rights, London could not contain himself. Those findings, he suggested, grew out of her own earlier complaint. He began yelling at her. When Rabb upbraided him, he caught himself. “I apologize for shouting at the witness,” he said. “I know that is not proper conduct in an examination.”
In his closing line of questioning, London turned yet again to the presence of Blank—and, he seemed to hope, also of Rabb—at national conferences of law women. At the second such conference, he asked, did Blank recall an agreement to launch a “consolidated attack on Wall Street firms?” Did she recall an accord at that conference on the use of “guerrilla tactics”?
With Rabb objecting repeatedly to his efforts to discover a conspiracy, London strove to add Rabb to his list of conspirators. Was Rabb present at the first National Conference of Law Women in 1970? (Blank could not recall her there.) Was Rabb present at any meetings of the NYU Women’s Rights Committee? (Blank could not recall.) Had Rabb helped Blank prepare questionnaires that were distributed at such meetings? (No.) Did Rabb meet or confer with Blank about complaints against other law firms?
At this point, Rabb’s objections stopped London’s conspiracy probe by directing Blank not to answer. When London pushed, on a related front, to learn what Blank knew about Rabb’s “connection” to such organizations as New York’s Civil Liberties Union or Columbia’s Employment Rights Project, Rabb again blocked his path and directed Blank not to answer.
A reader of the deposition could sense that London was gunning not just for Diane Blank. He was trying to paint Blank and Rabb as co-conspirators in a guerrilla attack on Wall Street law firms. But a critical reader could also see that Blank’s case had major weaknesses. She seemed unable, albeit four years after her job interviews, to name a single male student hired by Sullivan & Cromwell who had qualifications that she could match. And she seemed not to recognize the problem.
IN THE CHAMBERS OF JUDGE MOTLEY, receiving all these documents, was just such a critical reader: a law clerk named Sara Steinbock. Steinbock had graduated in 1974 from NYU School of Law, where she too had been a member of the Women’s Rights Committee. And she could recall Diane Blank as a student. Now, Steinbock had her first legal job, as one of two clerks to Motley.
To Steinbock, who understood that Blank had not made law review, Blank’s case looked not great. Furthermore, Steinbock believed that Sullivan & Cromwell had made a wise choice of London as attorney. Rather than defend itself with one of its own corporate partners, who might have the Waspy style that would confirm stereotypes about the all-male partnership, it had gone to someone who was Jewish and a well-known liberal.
Whatever London’s background, however, Steinbock thought that he had written an odd letter: asking a judge to recuse herself based on a “mindset.” But Steinbock was, as she thought, “a kid,” just learning how to comport herself as a lawyer. And London was a “lion of the bar” from whom she could learn.
Then in May of 1975 another odd letter from Ephraim London reached Judge Motley’s chambers and Steinbock’s desk. Apparently London was not getting along with Rabb. In a letter copied to the judge, he told Rabb he would not sign a minor agreement, a so-called stipulation, because Rabb had behaved like a “yahoo” during her client’s deposition.
Soon after the “yahoo” letter reached her chambers, Judge Motley replied to London’s letter from weeks earlier that had asked her to leave the case. She construed his letter, she informed him, as an attempt to remove her from the case. If so, she suggested that he follow full procedure: file a “timely and sufficient affidavit setting forth the facts on which you rely.” Steinbock got the impression that the judge handled it as a matter of business, taking nothing personally. Quickly London replied that Motley had misunderstood. He had no intention, he reiterated, to ask for her disqualification.
With that confrontation averted, all parties proceeded to a crucial issue in the case: could Blank bring it as a class action on behalf of other women against whom Sullivan & Cromwell might have discriminated? Motley instructed Rabb to submit her written argument for Blank and London to submit any opposition no later than August 5, 1975. All sides understood that the future of the case hung in the balance. If Diane Blank represented a class, she could demand answers to questions about how Sullivan & Cromwell had treated all women who applied to work there.
WHEN JUDGE MOTLEY CALLED ALL PARTIES into her courtroom, on June 2, 1975, for the first pretrial conference, none of the participants could guess its purpose. “All right ladies and gentleman,” Judge Motley said, welcoming them to her courtroom and stating that she had called the conference to deal with the flood of paper that had been descending on her chambers. First, Motley turned to Blank’s motion for certification of the case as a class action. Rabb’s written argument on behalf of Blank, which had arrived a few days earlier, pointed out that class certification had recently been granted in a similar case in the same court: Kohn v. Royall, Koegel & Wells. In the case for Margaret Kohn, which Rabb was also arguing, Judge Morris E. Lasker had ruled that Kohn could bring her suit as a class action. He had cited well-established case law, including a 1969 ruling by the Court of Appeals for the Seventh Circuit: “A suit for violation of Title VII is necessarily a class action as the evil sought to be ended is discrimination on the basis of a class characteristic” such as race or sex.
Motley noted that earlier she had given London five further weeks to oppose Rabb’s motion. However, after reviewing Rabb’s documents, Judge Motley said that she concurred with Judge Lasker’s arguments and that, as she put it, Diane Blank’s case “is the usual and normal type of action which is brought as a class action on behalf of persons similarly situated.” Thus, she announced, “I don’t see any real need for belaboring this point.” Unless London right now could raise some new question about class certification, she said, she would certify the class today—five weeks ahead of schedule.
Watching from the jury box, Steinbock was shocked. Evidently shocked also, the tall, silver-haired attorney for Sullivan & Cromwell burst out, “Your honor, I am not prepared to—”
Before he could finish, Motley cut in, asking, “What is your name, sir?”
It was London, of course. He was not yet prepared, he said, to argue against class certification. Indeed, he made clear, he hoped never to discuss class certification. To avoid that issue, he wished to hold an entirely “separate trial.” That trial, which he claimed would be short, would consider a different question: whether Diane Blank had filed her papers late with the EEOC. By showing that her papers had arrived late, he could end this matter quickly.
London’s claim about late papers would require him, in his separate trial, to show that Sullivan & Cromwell’s discrimination against women (if it ever existed) had ended—was not ongoing. To support this claim, London could offer the statistics that had apparently swayed the New York district office of the EEOC: that the firm’s percentage of women among its associates had recently risen from about 1.4 to 12.5 percent. Further, though he did not articulate this motive, London had designed his short trial to put Rabb at a disadvantage. Rabb would be unable to show that Sullivan & Cromwell continued to discriminate because she would not yet have the information that London refused to give her (and that London would not be forced to give her until after Judge Motley certified the class action).
But Motley viewed the argument about ongoing discrimination, which might include a probe of those statistics, as the heart of the case. Determining whether Sullivan & Cromwell still discriminated was not work for a short trial preceding a full trial. She was not going to let London try this case twice.
With the goal of moving the case ahead, Motley stated, “I am going to rule now that it is a class action.” She told London that he could still write a memo to explain why this was not a usual and normal class action and that, if he came up with something new, she would reconsider.
“May I remind your Honor,” London asked in a last attempt, about the earlier order giving him five further weeks before she would certify the class. “Yes,” she replied, “I have just countermanded it.”
Still in the jury box, Sara Steinbock sat thinking, “Oh my god.” It would be her job to draft Motley’s memorandum opinion. Inevitably, Steinbock would need to justify the judge’s change of plan. But to Motley the reasons were clear. Until she certified the class action, London could resist giving information in depositions and interrogatories. She was beginning to think that London’s “job was to stall.”
Motley then turned to his motion to require Blank to answer questions about her attendance (and Rabb’s also) at conferences of law women. “The Court’s ruling,” she declared, “is that those questions are irrelevant to the merits of this case and the plaintiff is not required to answer any question relating to any conference that she attended regarding women’s rights.” Blank’s challenge in this lawsuit was straightforward: to prove that Sullivan & Cromwell discriminated against women.
London agreed. But he had asked about the law conferences for a different reason. Blank’s case, he believed, should be thrown out for lying, for “unclean hands.” London wished, he told Judge Motley, to show evidence that at these conferences Blank and other participants had decided that they would sue law firms and, further, “where it was necessary, there would be falsification of the facts.” This strategy was typified, he believed, by Blank’s false claim that a partner in Sullivan & Cromwell said that “some of the partners have prejudices against women.” He would reveal that Blank and her friends had conspired in what he called a “barratrous and champertous plan.”
A BARRATOR, ACCORDING TO BLACKSTONE’S COMMENTARIES of the 1700s, was someone who engaged in “frequently exciting” harassing lawsuits and, according to Black’s Law Dictionary, was a “maintainer of suits . . . a disturber of the peace who spreads false rumors and calumnies.” In these reference works, champerty was worse. It meant making a bargain to pursue someone’s legal claim in order to profit from the proceeds (Black’s Law Dictionary). Lawyers who practiced champerty were “pests of civil society” (Blackstone’s Commentaries). To Steinbock, just past law school, the odd terms made London sound archaic.
To Motley, they echoed her recent past. After the Supreme Court had ruled in 1954 that segregated education was unconstitutional, the NAACP encouraged black students to apply to all-white schools and colleges. Southern states responded by attacking the encouragement as illegal. They tried to paint the NAACP’s civil rights lawyers as violators of a legal canon that forbade barratry and champerty.
Taking antibarratry laws that had long been used to combat “ambulance-chasing” by lawyers who profited from others’ pain, southern states added language aimed at the NAACP. Virginia, for example, revived an old law that had prohibited lawyers from snagging business by paying a “runner” (an employee who chased after accident victims to get business) or a “capper” (a decoy who helped work a swindle); onto that law, the state grafted a clause permitting prosecution of any “individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability.” Not coincidentally, the NAACP retained lawyers for just such an action: helping black students win admission to white schools.
Virginia’s highest court ruled that the NAACP was violating the state’s new antibarratry statute, which the court endorsed as a “valid police regulation.” With other states enacting similar antibarratry traps, the NAACP appealed in federal court. Motley joined in writing the brief in support of her NAACP colleagues. Over a string of years, her allies making oral arguments against Virginia’s barratry tactic included Spottswood W. Robinson III, Thurgood Marshall, and Robert L. Carter—all of whom would eventually, like Motley, become federal judges. In the climactic case, Carter argued for the NAACP before the United States Supreme Court. He lost.
Writing the decision in early 1962 for a 5–4 majority was Justice Felix Frankfurter, who wanted to steer the Court away from appearing “to discriminate as partisans in favor of Negroes.” Virginia’s antibarratry and anti-NAACP statute provided his chance. No state, Frankfurter wrote, needed to exempt the NAACP from its antibarratry laws simply because NAACP lawyers were “moved not by financial gain but by public interest.” Motives that replaced venality with virtue would not shield NAACP lawyers from indictment as barrators. Ancient antibarratry law trumped emergent public-interest law.
The decision never appeared. After suffering a stroke, Justice Frankfurter, along with another justice in the five-vote majority, resigned from the court. Robert L. Carter went back to argue the case a second time. Again the vote was 5 to 4. But the NAACP won. Its lawyers, including Constance Baker Motley, could continue fighting discrimination.
LONDON’S ATTACKS ON RABB, Judge Motley grasped, went beyond charges of barratry. During his interrogation of Diane Blank, he had upbraided Rabb for lacking the training of an attorney. When Rabb objected to the form of his questions, he countered by calling her “obtuse.” Now, in a different form of insult during the pretrial conference, London claimed Rabb had acted improperly by trying to “whisper advice” to her client. As Motley ruled against London, stating that Blank was permitted to consult counsel before answering a question, London’s string of insults reminded Motley of his letter calling Rabb a yahoo. Asking for a copy, she read it aloud in court:
Dear Ms. Rabb, don’t bother to send the stipulation. I won’t sign it. There is no reason to accommodate you so long as you ignore your commitments and behave like a yahoo—as you did during your client’s examination.
What, Judge Motley wanted to know, did he have in mind? For that matter, what was a yahoo?
“A yahoo, your Honor, is a word that comes from Swift’s Gulliver’s Travels.” Explaining Jonathan Swift’s eighteenth-century allegory, he went on to say that yahoos were a “very crude kind of people who behaved in an uncontrolled manner” and that he had intended—
The judge cut him off. In front of Motley sat his written complaint, which excerpted what he viewed as Rabb’s moments of unlawyerly obstruction. In it he attacked Rabb with yet another epithet: puerile—a term, he added, that “may now be applied to a woman’s conduct” though it originally applied to the mischief of young boys.
Rereading these excerpts, Motley saw no grounds for calling Rabb’s defense crude or for calling Rabb a yahoo. In Motley’s nine years as a federal judge, she told London, she had seen no case “in which a lawyer has addressed his opponent with any such language.” She had doubts he would try such tactics before a male judge. In her courtroom, she said, “We don’t conduct any cases like that.”
In the courthouse cafeteria at midday, judges sat together and talked about their work. “You know how everybody talks about their business at lunchtime,” Motley recalled years later. “And we obviously talked about lawyers who were ridiculous.” Her colleagues who knew London began volunteering opinions. He wasn’t a member of Sullivan & Cromwell, they reminded her. The firm had hired an outsider to do what it knew was improper, they suggested, and so that no lawyer from Sullivan & Cromwell risked being held in contempt of court for charging an attorney with barratry and a judge with prejudice. The white-shoe firm had hired London, Motley gathered, to do its dirty work.
THE WORK GOT DIRTIER. On July 24, 1975, London filed an “Application for Disqualification.” Reversing his repeated statements that he would not seek her removal from the case, London now formally pressed Motley to disqualify herself. Her past actions showed, he argued, that she “identified with those who suffered discrimination in employment because of sex or race.”
Not waiting for an answer, London went over Motley’s head. Writing to the court of appeals, he requested that it overturn her ruling on class certification, informing them that he had asked Motley to disqualify herself. Facing this probably unprecedented attempt to disqualify a federal judge on the basis of sex and race, Motley went looking for courage and for precedent. She found both in the work of Judge Leon Higginbotham, serving since 1964 on the district court in Philadelphia.
Only the year before, in a case involving charges of racial prejudice by white workers, Higginbotham had been pressed to disqualify himself based on news reports of a speech which he, a black judge, had made about ending racial injustice. To a gathering of black historians, he urged that blacks look beyond federal court as they sought to end discrimination. The pressure to disqualify included the assertion that in speaking to blacks about ending discrimination, he used the pronoun we. To this, he replied,
Defendants assert that my use of the term “we” indicates an emotional identification with my audience which requires my disqualification. Perhaps defendants would have wanted me to say “You black people must pursue your options for equal justice in other forums.” Maybe that approach would have been permissible. Perhaps, on the Fourth of July, they would want orators to say “You hold these truths to be self evident, that all men are created equal . . . ,” but never declare that “We hold these truths to be self evident.” If defendants’ rationale is accepted, whenever an orator says “we” in such a context, he is involved in a conspiracy which precludes his capacity to judge thereafter with impartiality.
Higginbotham proceeded to pick apart each segment of the attack on his impartiality with care.
Only late in his reply did he suggest why white litigants might try to disqualify him. Their pressure might arise in part from the fact that until 1961
no President had ever appointed a black as a United States District Judge. If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.
As he reached his conclusion, he made clear where he stood. “In a nation which,” he said,
had a revolution theoretically based on the declaration that “we hold these truths to be self-evident, that all men are created equal,” a judge should not be disqualified if two centuries later he believes that the rhetoric must be made real for all citizens.
Judge Higginbotham stayed on the case.
His words gave courage to Judge Motley. Since London was already going over her head to the court of appeals, she needed to reply quickly. Over a weekend, Motley produced her answer to London’s challenge, a memorandum opinion that she finished on Monday, August 4, 1975. The opinion addressed each of London’s charges, holding the most personal for last.
To his charge that she had not let him hold a brief trial to show that Diane Blank’s papers were late, she countered that the papers could not be deemed late if discrimination was continuing—a question at the heart of the main trial. She wrote that London was withholding information that was needed for the main trial to move forward and would not be brought out in a brief trial. To his charge that she had certified the class without giving him a chance to reply, she countered that she remained willing to read any reply.
Near the end of her response, she turned to London’s more personal charges, including what he called her identification with people who had faced discrimination “because of sex or race.” According to him, she once deplored employment discrimination for tending “to make its victims social and economic cripples, hopeless victims of warped and reactionary social custom.” He alleged also that she once said that her nomination to the federal court was significant to Negroes and women lawyers who were suffering discrimination. “I hasten to add,” he continued, that both he and the firm of Sullivan & Cromwell “are in agreement with the quoted statements”—for which he gave no source, and which he introduced as evidence that she would not be “objective.”
Replying to London’s charge that she identified with people who suffered sex discrimination and race discrimination, she pointed out that Ephraim London
offers as support for this “identification” an eloquent quote, attributed to me, on the crippling effects of discrimination. Mr. London offers, however, neither evidence of this alleged “identification” nor citation for the direct quote.
Though questioning his quotations, Motley did not hide from her decades of lawyering for the NAACP. It was beyond dispute, she said, “that for much of my legal career I worked on behalf of blacks who suffered race discrimination. I am a woman, and before being elevated to the bench, was a woman lawyer.” But the fact that a judge had engaged in civil rights litigation or was the same sex as a possible victim of sex discrimination should not prove sufficient to force her disqualification. Elaborating on a point made by Harriet Rabb immediately after London’s first letter urging Motley to leave the case, she continued that if, indeed, the
background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.
Although Motley had little contact with the nascent feminist theory of the 1970s, London’s challenge had turned her opinion toward a crucial realization that was emerging about man-made law: Male lawyers like London supposed (and in this case had the nerve to argue, on behalf of an all-male partnership) that the standard for unbiased judging was white and male. If a judge diverged in sex (female) and race (colored), a male lawyer could try to remove her for embodying “bias” not common in judicious white males.
As Motley concluded, her opinion tweaked London, recalling that in early letters he had asked her to disqualify herself but twice stated that he had no grounds to move formally for disqualification. Despite the fact, noted Motley,
that he previously specifically declined to make such a motion on the ground that it was baseless, Mr. London now nonetheless includes the factors of my background, race and sex, which have not changed during the pendency of the litigation.
Though London may have changed his tune, Judge Motley had not. She refused to disqualify herself.
Almost immediately, the all-male court of appeals replied: Judge Motley would not be disqualified. Ephraim London had lost his gamble.
LONDON’S FAILURE TO ELIMINATE Judge Motley did not mean failure in his defense of Sullivan & Cromwell. From her vantage as clerk, Sara Steinbock supposed that Blank might still lose when her case went to trial. Steinbock’s impression remained that Blank and Rabb had a case that was “not so strong”—even if it was a case that London “made stronger each time he showed up.” Steinbock also sensed no note of triumph in Motley as she rebuffed London, and surely no levity.
Steinbock herself had indulged in a bit of light irony—a sign, she realized, that she was becoming outraged by London. In the bits of phrasing that Steinbock drafted toward Motley’s refusal to disqualify herself, she was the one who slipped in the wisecrack that Motley’s race and sex had “not changed during the pendency of the litigation.” It was Steinbock’s favorite line—clever, she thought, but likely to be cut by the judge. When Motley signed off on it, Steinbock had hoped to see her smile or even chuckle. Motley did neither. Steinbock realized that Motley was treating the case professionally, not emotionally—as a mature judge, not as a kid clerk.
At about this time, the visibility of the case increased sharply. Although well covered in New York’s legal press, the battle between Rabb and London had mostly escaped the national media. An article in the Wall Street Journal, however, managed to gather information from both Rabb and London that had not surfaced in court. London, after what the Journal reporter called a bit of arm twisting, revealed that his yahoo letter had been prompted merely by a flare-up about rescheduling a deposition, which he admitted to the Journal “wasn’t so all-fired important.” Rabb admitted that she had been introduced to Blank and her allies by Eleanor Holmes Norton—who, the Journal noted, was head of the city Commission on Human Rights, “before which many of the complaints were filed”—a revelation that probably came closer to suggesting a conspiracy than anything London had managed to elicit.
Blank heard immediately that Rabb was upset, calling the article scurrilous. Then Rabb got a call from a friend in the investment banking firm Lehman Brothers. He said the article was the “talk of Wall Street.” To investment bankers this was a story, as Blank put it, about “a law firm that can’t win its own lawsuit, and on top of that goes out and hires a buffoon for a lawyer.” The partners at Lehman Brothers, he told Rabb, were calling up partners at Sullivan & Cromwell to tease them.
Still, the article left Blank’s credentials looking far from strong. Blank did not enjoy reading in the Wall Street Journal that she had received mediocre grades in law school and edited “a sort of second string law review.” Weaknesses in Blank’s individual case made it crucial to show that Sullivan & Cromwell had discriminated against women as a class. From the start, London had fought against handing over data from the firm that might strengthen that claim. The statistics that Sullivan & Cromwell guarded most fiercely concerned its partners—a weak spot, since the firm had never promoted a woman to partner. Among Rabb’s questions were fairly simple ones that could combine to reveal a pattern, if it existed, of discrimination: For those men who arrived as associates and were invited to join the partnership, how long on average had they remained associates? For those women who arrived as associates and did not receive invitations to partnership, how long had they remained associates? For those women whose years as associates exceeded the average for the men who made partner, why was each woman not offered the opportunity to become a partner?
As the case moved forward in the spring of 1976, London fought hard against providing the data about partnership. Refusing to answer Rabb’s questions, he argued that they were irrelevant because “Title VII does not require an offer of partnership to any person or employee. Any construction of the law that requires an offer of partnership to an employee or class of employees would, we believe, violate Constitutional guarantees.” Behind this resistance lay a pivotal claim: that the U.S. Constitution, with its guarantee of due process and freedom of association, trumped Title VII and protected partnerships, which invite members to join rather than hire employees to labor. This claim represented the ultimate effort to keep the legal profession free to discriminate by sex or race.
In support, London submitted a fourteen-page affidavit, almost a legal brief in itself, from one of Sullivan & Cromwell’s most senior partners, John F. Cannon. At length Cannon described the burdens that he and his fellow partners would endure if they were required to sort through mounds of confidential matter relating to each candidate who had been considered for partner. “I personally,” he said, “expect that I would have to spend the major portion of my time over several weeks in the effort.” Moreover, Rabb’s questions about “why we do or do not invite lawyers to join our partnership are irrelevant and improper,” he asserted. Congress “did not in Title VII confer upon the federal judiciary the responsibility to review the membership practices of law partnerships.”
Judge Motley sided with the firm. Rebuffing Rabb, Motley ruled that partnership information was irrelevant. Because Blank sought to become only an associate, Sullivan & Cromwell could refuse to explain why it had invited no women associates to join its partnership.
Undeterred, Rabb applied to Judge Motley for a rehearing, and she did so with the help of a powerful new ally: the national office of the EEOC. Although the EEOC’s New York office had found in 1974 that Blank probably had not been discriminated against by Sullivan & Cromwell, now in June of 1976 the national office decided to support her request for information about women’s efforts to become partners at Sullivan & Cromwell. The EEOC was unwilling to concede to Sullivan & Cromwell’s claim that “partners and partnerships are not within the purview of Title VII of the Civil Rights Act of 1964.” The EEOC argued in a brief to Judge Motley that large law firms must not succeed in insulating themselves from antidiscrimination law merely by “choosing to do business in the partnership form.”
This argument came from an invigorated EEOC, one strongly engaged with women’s rights and no longer dreading, as it had in the 1960s, being denigrated as a “sex commission.” Authors of the brief included the legendary Bea Rosenberg, who directed litigation for the EEOC’s effort to convince the Supreme Court that pregnancy discrimination was sex discrimination. They included also Charles Reischel, the EEOC attorney who had tested Susan Deller Ross with a hypothetical about Porta Potties and who had since married Nancy Stanley, a member of Blank’s law firm.
Sullivan & Cromwell did not shrink from this new assault. Replying to the EEOC brief, London relentlessly defended the firm’s contention that “Title VII did not make it unlawful for a partnership to discriminate on the basis of sex” in the selection of partners. He cited the partnership laws of New York State to argue that joining a partnership must be voluntary. He cited the due process guarantee of the U.S. Constitution to argue that partners could not be commanded to admit new partners.
Judge Motley, watching the incoming fusillades—EEOC versus a major New York firm, Title VII of the Civil Rights Act versus the Fifth Amendment of the Constitution—chose to step out of the line of fire. She found it “unnecessary,” she wrote in her reconsideration of whether the firm must provide partnership information, “to reach the difficult issue” of whether Title VII made it “unlawful for a partnership to discriminate.” But whether or not Sullivan & Cromwell had the right to discriminate in hiring partners, she agreed with Rabb and the EEOC that any such discrimination might offer evidence of a “similar pattern in the selection of associates, where it would be illegal.”
In reaching this conclusion, Motley drew on a case recently heard in her own circuit, that of Margaret Kohn. In that case alleging discrimination in the hiring of female law associates, Judge Morris Lasker had endorsed the following argument made by a magistrate:
It is difficult to conceive of anything more telling with respect to whether or not these associates are being subject to employment discrimination than whether they proceed on to partnerships in the firm in the same manner as male attorneys with similar capabilities.
Here was precisely the ruling that Sullivan & Cromwell had been dreading. Providing partnership information would demand significant time, as Joseph Cannon had earlier advised Motley. More important, though he did not say so, such information might reveal a multidecade pattern of prejudice against women in his firm and the legal profession. The time had come to settle.