An Untold “Her”story of the Supreme Court
[T]he Court which has said to woman “You cannot enter here,” must now open its doors at her approach when she comes armed with the proper documents.1
—Myra Bradwell, Chicago Legal News, 1879
The dominant narrative surrounding the United States Supreme Court focuses on the individuals who are nominated and confirmed. Academics and authors devote entire careers to telling and re-telling mainstream stories about the Court and its justices. The four women who have made it onto the Court, in particular, are subjects of extraordinary attention. Justices O’Connor, Ginsburg, Sotomayor, and Kagan have become popular culture icons, appearing on book covers, t-shirts, stickers, coffee mugs, tote bags, tattoos, action figures, and, in the case of “Notorious RBG,” even closet air fresheners and breath mints. These are compelling stories, to be sure. But what of those women shortlisted before O’Connor became the first woman to serve on the nation’s highest court?
Part one of the book tells a new Supreme Court history—her story—to include these important, and overlooked, narratives. It is a history of bathing beauties, lesbians, mistresses, and more who repeatedly went from shortlisted to selected for positions of power as lawyers before being considered to fill the ultimate role of Supreme Court justice. This book not only fills a glaring omission in the Court’s history, but it also advances a critical aspect in the evolution of feminism and women’s rights. Stories of the shortlisted sisters began as first wave feminism was just taking hold during the suffrage movement and continued through the rise of the second wave in the 1960s and ’70s. Their legacy offers many lessons for feminism and the future of women’s rights movements.
To best understand the significance of the shortlisted sisters’ stories, it is worth briefly revisiting the history of women’s rights in America to provide some context for their coming of age. Women were not among those whose rights were secured by the United States Constitution in 1789. More than five decades later, women gathered in Seneca Falls to hold the first Women’s Rights Convention in 1848. The gathering featured a document, the Declaration of Sentiments, which outlined a list of grievances authored by middle- and upper-class white women.2 Modeled on the Declaration of Independence, it contained a list of complaints surrounding women’s inequality including education, employment, moral expectations, property rights, and voting. Many of the demands have since been resolved, evidencing progress. After all, women today no longer face total disenfranchisement or a complete ban on formal education. But a number of the grievances listed in the Declaration of Sentiments remain relevant, such as the critique of male dominance in employment and a lack of pay equity: “He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration.”3 The Seneca Falls convention was a successful endeavor in many ways, but notably less so for minority women, especially black women. This error is one that feminists have repeated time and time again.4
It was not until 1869 that a woman was admitted to the practice of law: Arabella Mansfield shattered that glass ceiling with her admission to the Iowa Bar. The same year, Washington University in St. Louis became the first law school to admit women. Three years later, in 1872, Charlotte Ray became the first African American female lawyer, admitted to the District of Columbia Bar after graduating from Howard University.
It would be a full decade following Mansfield’s achievement in Iowa before a woman would be admitted to the Supreme Court Bar. Belva Lockwood holds that distinction. The Court initially denied her application, so she turned to Congress and boldly convinced the male legislators to pass a statute entitled “An Act to Relieve Certain Legal Disabilities of Women.” President Rutherford B. Hayes approved the legislation in 1879 and Lockwood was admitted that same year. Just a few years earlier, the Court had rejected Myra Bradwell’s appeal from the denial of admission to the Illinois Bar—as noted in the introduction, it was here that Justice Bradley extolled the virtues of keeping women in the home.5
One year after Lockwood’s admission, she became the first woman in the United States to argue a case before the Supreme Court, representing a female client with an unpaid debt.6 Though Lockwood lost the case, she appeared again in 1906, this time winning a case on behalf of the Cherokee Nation seeking payment from the federal government for land ceded to the government.7 She went on to be nominated as a presidential candidate in 1884 by the Women’s National Equal Rights Party, campaigning on promises to give women equal rights in marriage and to place a woman on the Supreme Court. Grover Cleveland won that year, and when Lockwood ran again four years later, Benjamin Harrison was elected president. (The litany of men running for and winning the presidency continues into the present day.) More than a century passed—102 years—from Lockwood’s admission to the Supreme Court Bar before a female justice sat on that bench.
Feminism’s first wave focused on securing the right to vote, one of the main issues noted by the women at Seneca Falls. The suffrage movement, led by well-known activists like Susan B. Anthony, Elizabeth Cady Stanton, and Alice Paul, was marked by different perspectives on not only the best way to achieve the desired end, but also how to address race. For example, “[w]hen Paul staged the famous women’s rights parade of 1913 in Washington, she ordered black suffragists to march at the back of the line in order to spare the feelings of Southern sympathizers. Ida B. Wells-Barnett, who had been leading a group of black women from Chicago, vanished into the crowd along the sidewalk, then stepped back into the street as the Illinois delegation marched by, joining her white friends and integrating the demonstration.”8 This same sort of racial tension endured even fifty years later, when “Paul ignored pleas that she decline to accept support for the ERA [Equal Rights Amendment] from the segregationist presidential candidate George Wallace.”9 Racial divisiveness and struggles to accomplish social change continue to this day.
After securing the right to vote with the passage of the Nineteenth Amendment in 1920, many of the same women began to lobby for broader rights. The Equal Rights Amendment was introduced by Paul in 1923. It was not until 1972 that it finally passed in Congress and was sent to the states for ratification—where it still sits. Again, some minority women felt excluded from these efforts, which accounted for at least part of the reason why states like Illinois failed to ratify it in the 1970s. When Illinois finally voted for its passage in 2018, Representative Mary E. Flowers, a black legislator, critiqued the law as being designed to advance the rights of white women but not all women, similar to the fight for suffrage.10 On the House floor, she explained, “There were some laws on the books, but they did not apply to me.”11 Instead, “I’ve never had my rights given to me. I always had to fight for what was mine.”12 With Illinois becoming the thirty-seventh state to ratify, just one more is needed before the constitutionally-required three-quarters vote by all states occurs. Should a thirty-eighth state do so, however, it remains unclear whether the ERA will be deemed ratified within the appropriate time-frame.13
Even without a constitutional amendment to document equal rights for women, many believed that the dearth of female leaders would not be permanent. More women entered the pipeline once undergraduate and professional schools increasingly opened their doors and federal lawmakers passed formal measures like Title VII of the Civil Rights Act of 1964 (banning employment discrimination based on race, color, religion, sex, and national origin) and Title IX of the Education Amendments of 1972 (protecting access to education in federally funded institutions of education). This belief, while reasonable, has not borne out. No matter the field or profession, the percentage of women in leadership roles comes nowhere close to their percentage of the population.
One hundred twenty-nine years after Seneca Falls, in the midst of feminism’s second wave (which focused on issues like labor, pay equity, sexuality, reproduction, and dissatisfaction with domesticity14), women marched the streets of Houston in 1977 at the first—and only—National Women’s Conference, with delegates representing every state. Participants hoped that the endeavor would galvanize final support to pass the ERA, but it did not.15 Instead, women struggled to put their professional training to work, and often found themselves rejected for positions because they might “distract” their male counterparts, become pregnant, or simply take a position held for a “more-deserving” man. Women who managed to secure positions in the workplace found themselves forced to endure sexual harassment and were paid less than men with the same qualifications and responsibilities.
Landmark sexual harassment and discrimination cases, like Meritor Savings Bank v. Vinson16 in 1986, made remedies available to some women but did little to change misogynistic culture. Nowhere was this more evident than when Anita Hill disclosed her experiences of sexual harassment perpetrated by Supreme Court nominee Clarence Thomas in 1991. Hill testified for eight hours in front of the Senate Judiciary Committee about the sexual harassment she endured while working for Thomas when he was director of the Equal Employment Opportunity Commission (EEOC) and a supervisor at the U.S. Department of Education. Her testimony included revelations that Thomas shared graphic descriptions of pornography and made references to pubic hair. Although Hill’s role was to provide testimony in the context of hearings about Thomas’s suitability as a justice, it appeared that Hill herself was on trial or under investigation. A similar phenomenon bizarrely repeated itself nearly thirty years later when Republicans on the Senate Judiciary Committee hired a “female prosecutor” (distinctly noting her gender) to question Dr. Christine Blasey Ford, who alleged that Supreme Court nominee Brett Kavanaugh had sexually assaulted her as a teenager. We return to this parallel phenomenon at the end of the book. Despite Anita Hill’s highly credible testimony, Thomas was confirmed 52–48. The ordeal caused bitter disagreement within the African American and feminist communities. Nonetheless, Hill’s testimony would forever change the landscape of sexual harassment, making the term a household word and dramatically increasing the number of complaints lodged with the EEOC.
Outraged and inspired by Hill’s experience, a record number of women ran for—and won—congressional offices in 1992, making it what Time magazine dubbed “The Year of the Woman.”17 Keep in mind, however, that this number of wins was only twenty-seven, which emphasizes how grossly underrepresented women have been in Congress. The magazine cover story championed the “flurry of fresh female faces” as a response to second-wave feminism: “If the women’s movement of the 1970s was the lightning flash of female empowerment, then the long-awaited roll of thunder began to resound in this year’s election results. From coast to coast, women candidates, thrust forward by Anita Hill-inspired outrage and helped along by anti-incumbency sentiment, were in contention as never before.”18 Hill’s testimony and the election results that followed marked the start of feminism’s third wave.
Twenty-five years later, the nation watched one of the most objectively qualified persons in history run for the presidency—a Yale-trained lawyer, law firm partner, New York senator, and U.S. secretary of state who had also spent eight years working in one of the most prestigious areas of the White House as first lady. Hillary Clinton was the first woman to ever be nominated for the office by a major political party. Polls predicted widely that she would win, but instead the nation chose Donald J. Trump, a man who exposed the reality of American misogyny in unprecedented ways. He shamed Republican opponent Carly Fiorina’s appearance (“Look at that face! Would anyone vote for that?”19) and stalked—literally—Clinton on stage during a presidential debate.20 His bragging comment to “grab ’em by the pussy”21 played over and over during the campaign, foreshadowing what would follow. As president, Trump ridiculed Fox News anchor Megyn Kelly as having “blood coming out of her eyes, blood coming out of her wherever”22 and told ABC reporter Cecilia Vega, “I know you’re not thinking, you never do”23 after she thanked him for calling on her at a press conference. He also targeted black female journalists with persistent name calling.24 These disparaging, denigrating comments about women are so common25 that it was newsworthy when Trump did not make them.
In response to Trump’s election, women across the country marched, yet again. This time, instead of donning suffragist white or burning bras, they gathered by the millions in hot pink pussy hats to protest the commander in chief. The day after his inauguration, the Women’s March in Washington, D.C., became what has been called the largest protest in U.S. history,26 and even more marched in cities throughout the United States and around the globe. Almost simultaneously, the #MeToo movement emerged in full force. First created by Tarana Burke, an African American woman, in 2006 (Burke, incidentally, rarely gets attribution for her significant contributions), the effort went mainstream over a decade later when celebrity actress Alyssa Milano tweeted about her own experience with sexual assault/harassment on October 15, 2017, prompting millions of other women to do so as well.27 The #TimesUp movement launched in January 2018 to support women in sexual harassment cases, raising a legal defense fund of more than $20 million. Many women (including the authors of this book) revealed publicly for the first time sexual assaults and harassment that they had kept hidden their entire lives. Some published detailed descriptions of the trauma, such as the op-ed penned by journalist Connie Chung in the Washington Post28 and the profiles by actresses Ashley Judd and Gwyneth Paltrow featured in the New York Times along with eighteen other survivors.29 Not only did the effort bring women together to share their experiences, but it brought prominent men down from their positions of power.
One year after the #MeToo movement went viral, the New York Times inventoried the number of “high-profile men and women in the United States who permanently lost their jobs or significant roles, professional ties or projects (e.g., concert tours, book deals) within the past year after publicly reported accusations of sexual misconduct.”30 The list featured 201 men and three women, including comedian Louis C.K., news anchor Matt Lauer, journalist Charlie Rose, actor Kevin Spacey, media mogul Harvey Weinstein, and numerous state politicians. While nearly half of their replacements were women, this hardly made a dent in the gender disparities in leadership and power, especially for the legal profession, which has yet to experience its own #MeToo reckoning. Only two men on the list were practicing lawyers or judges—Eric Schneiderman, the former attorney general of New York, and Alex Kozinski, the former chief judge of the United States Court of Appeals for the Ninth Circuit (more on him in chapter five). The relative absence of the legal profession from the list does not mean women in that industry are not experiencing sexual harassment and assault. A study of nearly 7,000 lawyers from 135 countries published by the International Bar Association in 2019 found that thirty-seven percent of women and seven percent of men reported experiencing sexual harassment in the workplace.
With the failures and shortcomings of the first, second, and third waves of feminism exposed yet again, many women, especially minority women, rejected feminism entirely, though arguably the fourth wave of feminism began in 2012 with the advent of social media. Despite these powerful surges in the name of feminism, many are left feeling lost in the undertow. Some argue that whatever wave of feminism we are in, it amounts to nothing more than another version of white supremacy.31 Others acknowledge the flawed past of feminism while simultaneously pushing toward meaningful equality that embraces the complexities and struggles of intersectionality, including ability, class, education, race, religion, sexuality, and other underrepresented statuses. As Chimamanda Ngozi Adichie explains in We Should All Be Feminists, “My own definition of a feminist is a man or a woman who says, ‘Yes, there’s a problem with gender as it is today and we must fix it, we must do better.’”32 We choose this as our definition as well, and we see this book as providing one pathway for all of us to do better.
Though the initial #MeToo reaction led to some men in power being replaced by women, we are concerned about the inevitable backlash. Some men have responded by avoiding women in the workplace entirely. As one news article explained in late 2018:
No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings. In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way? Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women. Call it the Pence Effect, after U.S. Vice President Mike Pence, who has said he avoids dining alone with any woman other than his wife. In finance, the overarching impact can be, in essence, gender segregation.33
This contemporary gender segregation looks and sounds much like the world the women profiled in this book had to navigate as they advanced through their careers, regularly excluded from spaces where “business” was conducted by men. While that news article suggests this is limited to the world of finance, we fear that it may become the status quo across all sectors and signal a return to an era we thought long behind us.
This #MeToo backlash makes the stories of the shortlisted sisters all the more relevant today. Each of them endured—and thrived—in worlds where men regularly excluded women and yet they repeatedly ascended into prestigious positions of power previously held only by men. The first two chapters of part one introduce these incredible women and place their lives and accomplishments in historical context. Chapters three and four explore their stories in connection with those who followed, including the women who made it onto the Court and those who did not. Part two then turns to the consequences and harms of shortlisting and outlines ideas about how more women can move from shortlisted to selected.