Vol. 30 No. 4 (May 2020) pp. 66-70STORIES FROM TRAILBLAZING WOMEN LAWYERS: LIVES IN THE LAW by Jill Norgren. New York: New York University Press, 2018. 304 pp. Paper $22.00. ISBN: 978-1479865963.
Reviewed by Julie C. Suk, Department of Sociology, Political Science, and Liberal Studies, The Graduate Center, City University of New York. Email: jsuk@gc.cuny.edu.
Jill Norgren’s STORIES FROM TRAILBLAZING WOMEN LAWYERS: LIVES IN THE LAW is an excellent biographical resource for a subject that should be central to the study of law and feminism: the history of women in the legal profession. Based on one hundred oral histories taken by the American Bar Association of outstanding female lawyers, Norgren tells the stories of women’s struggles and triumphs in changing a profession that has the power to change the status of women in American society.
The exclusion of women from the legal profession was a cornerstone of judge-made constitutional equality in the nineteenth century. In one of the first cases interpreting the Fourteenth Amendment to the U.S. Constitution, adopted after the Civil War to guarantee equal citizenship to the formerly enslaved, the Supreme Court held that a state could deny a married woman a license to practice law, even after she passed the bar exam, on the ground that the domestic sphere was the domain and function of womanhood. In BRADWELL V. ILLINOIS (1873), the Supreme Court reasoned that since married women had no legal personhood independent of their husbands, and thus could not enter into their own contracts or even own their own earnings, the state of Illinois was permitted to stop women from becoming lawyers. This “separate spheres” tradition, as it is known, justified and legitimized women’s exclusion from the legal profession. It also justified governmental policies of unequal treatment of women in many other opportunities to participate in economic and political life, including voting (MINOR V. HAPPERSETT, 1875), bartending (GOESAERT V. CLEARY, 1948), military service (ROSTKER V. GOLDBERG, 1981), and jury service (HOYT V. FLORIDA, 1961).
Nonetheless, at the turn of the century, some states began to admit women as members of the bar. After this pioneering generation of the first women who attended law school and became lawyers (the subject of Norgren’s wonderful earlier book, REBELS AT THE BAR) the “trailblazers” of the twentieth century began to integrate [*67] themselves into law firms, judgeships, government, and nonprofit organizations. Many of these stories reveal the crucial role played by men – husbands, fathers, professors, and mentors – in opening up paths for almost every trailblazer; it was not outstanding talent alone, but a man willing to put his weight behind the woman who possessed it, that made trailblazing a real possibility. But the idea that every woman with a law degree was taking the place of a breadwinning male was bandied about in law schools and in law firms.
Norgren tells triumphant stories of some trailblazers who could prove their individual invincible talents to men who could be convinced to loosen their stranglehold on incumbent power in the face of unshakeable talent. Shirley Adelson Siegel, for example, a 1941 graduate of Yale Law School, went on to be the solicitor general of the state of New York. After she was passed over by 40 firms, Yale professor Arthur Corbin (and scholarly giant of contract law) wrote personal letters to his friends at law firms. He described Siegel as “one of our best in industry, in mental power, and in personality,” and wrote, “Anything you can do for her will be a special favor to me” (p. 79). Siegel got a job at the firm of Proskauer Rose and Paskus which subsequently opened many doors for her.
But men like Corbin were few and far between. Norgren presents vivid stories of the discrimination women faced. Yet many were still able to become self-made women in the profession. Shirley Hufstedler, who graduated fifth in the Stanford Law School Class of 1949 (tied with Warren Christopher), got the recommendation of Stanford’s Dean – for a job as a legal secretary. Meanwhile, the same dean recommended Warren Christopher for a Supreme Court clerkship. Without a dean or a professor willing to stick his neck out for her, Hufstedtler had to find and seize opportunities for herself after she turned down the legal secretary job. She became a solo practitioner, performing legal research and writing briefs for many lawyers. Proving herself through the sheer force of her excellent work product, she eventually served as a consultant to the attorney general of California, who went on to become the governor. That governor, Pat Brown, appointed her to the state judiciary. Her work in that role made her a viable candidate years later for the federal appeals court for the Ninth Circuit. Hufstedtler became a federal appellate judge in 1968, and Secretary of Education under President Jimmy Carter in 1979 (pp. 75-77).
It was not discrimination alone that hindered women from advancing in the legal profession. Those who became mothers faced real conflicts arising from combining a legal career with [*68] motherhood. A true gem in this book is Norgren’s account of Patricia Wald’s story. Wald became the first woman appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1979 in an era when judicial appointments were beginning to be politicized. Some Senate Republicans opposed her nomination, calling her “wild and wooly” and “an instrument of the devil.” But perhaps their most misleading label for her was “antifamily,” Norgren points out, because Wald was the mother of five. As one of eleven women to graduate from the Yale Law School in 1951, she, like Siegel, benefited from male professors’ willingness to vouch for her talent. She got a judicial clerkship with Judge Jerome Frank, after which she landed in a fantastic law firm job at the firm that was then known as Arnold Fortas & Porter (becoming Arnold & Porter after Abe Fortas became a Supreme Court justice). Judge Frank said, “She is the best law clerk that I ever had.” She became pregnant with her first child after she started working at the law firm, and she hid her pregnancy by doing all her work at the library across the street from her office. Then, after her baby was born, she took ten years off from the practice of law to raise five children. She eased back into part-time legal practice in the 1960s, and was eventually appointed, also by Jimmy Carter, as an Assistant Attorney General in the Department of Justice (pp. 92-94).
For lawyers who were mothers, Wald’s experience was not uncommon. Sandra Day O’Connor, the first female justice on the Supreme Court, also took some years off to be a full-time mother and homemaker. And, as Norgren notes, Norma Shapiro, who became a federal district court judge, stayed home for nine years to raise three children. For that generation of trailblazers, sequencing full-time motherhood and full-time lawyering was really the only way to combine the two. Norgren quotes Shapiro’s observation that, for the generations of women lawyers that followed the trailblazers, the more common combination is juggling full-time lawyering with motherhood. Shapiro said, “I don’t think I would advise anybody to stay out for ten years or 12 years like we did. I think it would be almost impossible to come back and to be able to have any range of choices. And that’s why I say I think in some ways there is more choice and in some ways less choice. It may turn out to be the same kind of foreclosure on the opposite end that we had” (p. 94). Norgren returns to this theme in her later discussion of the next generation, touching lightly on the stresses arising from dual careers and career competition, including failed efforts at egalitarian parenting, in telling the stories of the divorces that were more common in this next generation of women lawyers. [*69]
Norgren also quotes law firm partner and former Justice Department attorney Carol Dinkins who said, “I cannot stress how important the availability of dependable birth control was to being able to have done what I did when I did it” (p. 216). Indeed, the ability to choose not to become a mother has become a necessary ingredient of women’s successful legal careers in briefs filed by successful women lawyers in the Supreme Court’s recent abortion cases. In WHOLE WOMAN’S HEALTH V. HELLERSTEDT (2016), over 110 female lawyers filed an amicus brief, arguing that they would never have made partner at a firm, or become a tenured law professor at an elite top-20 law school, if they had not been able to choose an abortion at some earlier moment in their lives. In WHOLE WOMAN’S HEALTH, the Supreme Court preserved the rule of ROE V. WADE (1973), which interprets the Fourteenth Amendment’s due process clause to include a woman’s right to choose an abortion, grounded in privacy. In WHOLE WOMAN’S HEALTH, the Court struck down a Texas law that restricted abortion access by requiring doctors performing abortions to have admitting privileges at a surgical hospital. A nearly identical law in Louisiana is, as of this writing, before the Supreme Court in the case JUNE MEDICAL SERVICES V. GEE. In an amicus brief for the case, 367 women lawyers and law professors have told their stories of how the choice not to become a mother at crucial moments in their education and careers contributed to the success of their careers.
In STORIES FROM TRAILBLAZING WOMEN LAWYERS, the primary theme is women’s lives in the profession and the institutions of the law – rather than in the law itself. Perhaps reflecting the bent of the oral history source material, it focuses more on professional biography rather than intellectual biography or legal history. As women lawyers’ amicus briefs in recent abortion cases demonstrate, there is an important intersection between women’s lives in the profession and their lives in the law. Norgren sets the stage beautifully for engaging these connections.
REFERENCES:
Norgen, Jill. 2013. REBELS AT THE BAR: THE FASCINATING, FORGOTTEN STORIES OF AMERICA’S FIRST WOMEN LAWYERS. New York: New York University Press.
CASES:
BRADWELL V. STATE OF ILLINOIS, 83 U.S. 130 (1873). [*70]
GOESAERT V. CLEARY, 335 U.S. 464 (1948).
HOYT V. FLORIDA, 368 U.S. 57 (1961).
JUNE MEDICAL SERVICES V. GEE, No. 18-1323, and No. 18-1460.
MINOR v. HAPPERSETT, 88 U.S. 162 (1875).
ROE V. WADE, 410 U.S. 113 (1973).
ROSTKER V. GOLDBERG, 453 U.S. 57 (1981).
WHOLE WOMAN’S HEALTH V. HELLERSTEDT, 136 S.Ct. 2292 (2016).
© Copyright 2020 by the author, Julie C. Suk.
