The dog did not bark, said Sherlock Holmes. A famous racehorse disappeared the night before the big race, and the horse’s trainer was found murdered. Holmes, analyzing the situation, told Detective Gregory of Scotland Yard that there was “the curious incident of the dog in the night-time.” “The dog did nothing in the night-time,” said Gregory. “That was the curious incident.” That nothing happened was significant because it indicated that the dog did not bark because he knew the villain.
The fact that something does not happen can be significant. Since August 4, 2015, Paulette Brown has been president of the American Bar Association (400,000 members). Her term will end in August 2016. She is its first black woman president. Before 1943, the ABA did not even allow blacks to become members. (The first black male president of the ABA was Dennis W. Archer, 2003-2004.)
Brown, who attended segregated schools in Baltimore, is the fourth child of a truck driver. Her mother did clerical work. Brown’s selection as ABA president merited some, but not much, attention in the popular press; much like the dog that did not bark, these milestones now garner much less publicity.
Discrimination against women lawyers has lessened over the years, and that is why these changes in the ABA saw less coverage in the popular press than in 1995, when Roberta Cooper Ramo became the 119th ABA president and its first female president.
The efforts of women to secure equal opportunity in the law have not been easy. Yes, the arc of history tends towards justice, but that arc is not a gently sloping upward curve. Instead, it bends. A better metaphor is that it is more like a frog trying to climb out of a water well: for every two steps forward, there is one step back.
Brown is the sixth woman president of the ABA. When Brown finishes her year, the next ABA President will also be a woman, Linda Klein, the managing shareholder in Baker Donelson’s Georgia offices. Klein will serve a one-year term as president-elect and then become ABA president in August 2016. Klein, like Brown, has marked her own milestones. For example, in June 1997, Klein became the first woman president of the State Bar of Georgia.
In early August, the American Bar Association Commission on Women in the Profession gave five women lawyers its 2015 Margaret Brent Women Lawyers of Achievement Award. (Brown won this award in 2011.) Each of the five has also had amazing careers. One, Flora D. Darpino, Lieutenant General, United States Army, Judge Advocate General, Washington, D.C., is the first woman to serve as judge advocate general, the top lawyer in the U.S. Army. Another is Mari Carmen Aponte, U.S. ambassador to El Salvador. She was the first woman president of the Hispanic National Bar Association and the first Puerto Rican woman admitted to practice law in Pennsylvania.
Another is Fernande R.V. (Nan) Duffly, associate justice of the Massachusetts Supreme Judicial Court. She was the first Asian-American woman appointed a judge in Massachusetts. The fourth is Mary Ann Hynes, senior counsel, Dentons US LLP and the first female general counsel of a Fortune 500 company. The final recipient this year was Emma Coleman Jordan, professor of law at Georgetown University Law Center. She is a former White House Fellow (who served as special assistant to the U.S. Attorney General) and past president of the Association of American Law Schools and of the Society of American Law Teachers.
Margaret Brent, for whom the ABA named this award, was the first woman lawyer in America. She arrived in the colonies in 1638, and was involved in 124 court cases in more than eight years, winning every single one. The Brent story is particularly interesting because it shows that the trajectory of women lawyers in the United States has been uneven. As the years went on, people forgot Brent’s success, and her successful career did not make it easier for other women to become lawyers, as Myra Colby Bradwell later learned.
Ms. Bradwell, the wife of Cook County Judge James B. Bradwell, passed the Illinois Bar in 1869. A year before that, she started the Chicago Legal News, the first legal newspaper in the western part of the United States. (In 1869, Chicago was considered to be in the West; now it’s the Midwest.) Her law examiners, a judge and a state’s attorney, found her qualified and recommended that the state supreme court issue her a law license.
The applicable statute required only that a “person” desiring a license obtain a certificate of good moral character from a local court. Ms. Bradwell, complying with the statute, submitted her certificate along with her application for a license. The state court, in an oral opinion, denied it because as a married woman she “would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client.” After the state court announced the decision, Bradwell filed an argument maintaining her constitutional right, as a married woman, to practice law. The Illinois court then issued a written opinion that denied her a license because of her sex.
She moved on to the U.S. Supreme Court. Bradwell v. Illinois was the first case before the U.S. Supreme Court challenging the constitutionality of different treatment for men and women. Bradwell argued that the refusal of the Illinois Supreme Court to grant her a license to practice law solely because she was a woman violated the Privileges and Immunities Clause of the Fourteenth Amendment. She said that she was entitled to a license to practice because the Fourteenth Amendment “opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the simple enjoyments of life.”
The Supreme Court affirmed the state court decision with but one dissent. Earlier that term, in the Slaughter-House Cases, the Court had held that the Privileges and Immunities Clause protected only those privileges and immunities that were the result of United States citizenship. Admission to practice in state courts was, if anything, dependent upon state citizenship and, therefore not within the scope of the amendment.
Bradwell is best remembered because of the reasoning of the concurring Justice Bradley (joined by Justices Swayne and Field). Bradley upheld the different treatment of women because “The paramount destiny and mission of woman are to fulfil [sic] the noble and benign offices of wife and mother. This is the law of the Creator.” These justices did not explain the method of communication between the Creator and them.
That is not the end of the story, however. While this litigation was going on, Alta M. Hulett also was seeking to be admitted to the bar. Supported by Ms. Bradwell, her legal newspaper, and others, she persuaded the Illinois legislature to enact a law providing that no person could be precluded from any occupation except the military on the grounds of sex. The U.S. Supreme Court issued its opinion on April 15, 1873. A year earlier, in March 1872, the young (18 years old) Ms. Hulett became the first woman lawyer in Illinois. The Illinois legislature, the popular branch of government, reversed the effect of the state court decision.
There is still more to the story. Karen Berger Morello, the author of The Invisible Bar: The Woman Lawyer In America 1638-1986, tells us, “In 1890, the Illinois Supreme Court, on its own motion, granted Bradwell her license to practice law. Two years later she was admitted to practice before the United States Supreme Court but she never did. When she died in 1894, Myra Bradwell was survived by a son and a daughter, Bessie Bradwell Helmer. Both of her children were lawyers.”
