Women Are Still Relatively New in the Legal Profession

Recent posts by Judi McMullen and Melissa Greipp have focused on issues confronted by women in the legal profession today, and the current issue of the National Law Journal reports that in large law firms, women still account for just of 15% of equity partners.

Although women currently (as of 2011) make up 31% of all lawyers in the United States and 47% of all students at ABA-accredited law schools, the presence of large number of women in the profession is still a relatively recent phenomenon.

There have been women in the American legal profession since the 1870’s, but their numbers were miniscule until after 1945.

In the fall of 1947, women accounted for only 3.3% of law students. (The number, not surprisingly had been higher during World War II, but that was because of the dramatic drop in the number of male law students during the war.) Although the percentage declined to 2.8% in 1948 and 1949, it began to grow after that and actually reached 4.1% (1362 of 31,197) in 1952, when 4.9% of all first year law students were women.

However, the number (not just the percentage) of woman attending law school began to decline again after 1952, as traditional notions of gender-appropriate occupations were reasserted during the Cold War Era. By 1956, the percentage of women dropped to a post-1950 low of 3.0%.

Although the number increased after that, the increase was extremely modest, and the 1952 figure of 4.9% of all law students was not reached again until 1968. Although the number of female law students increased from 1061 in 1956, to 2759 in 1967, the number of male students grew from 34,177 to 58,315 during the same period.

It was in the fall of 1968 that law school enrollments first reflected the impact of the Women’s Movement. For the 1968-69 academic year, the number of female first year law students jumped from 1179 to 1742, and the percentage of all law students who were female hopped up to 6.0%. Significantly, for the first time in the decade of the 1960’s, the number of males entering law school actually declined as an absolute number between 1967 and 1968.

The number of female students increased dramatically after that, passing the “10% of all law students” mark in 1972, the 20% barrier in 1974; and the 30% level in 1978. The largest single-year jump (in percentage terms) came between 1972 and 1973, when the number of first year female law students rose from 15.7% to 20.2% of the total, and the overall number of female law student rose from 12.1% to 16.0%. (Also, in 1972, the last all-male law school, Washington and Lee, first opened it doors to female students.)

The number of women in law school as a percentage of the whole continued to increase after 1978, although the rate of increase slowed. In 1985, women made up 40% of all law students for the first time; and in 1987, the percentage went permanently over that mark.

The percentage of women peaked at 49.0% in 2001 and 2002, and has declined slightly over the course of the past decade. During the 2011-12 academic year, women made up 46.7% of law students.

There were female students at the Milwaukee Law School in the 1890’s, and when Marquette took over the Milwaukee Law School in 1908, there were several women in the evening law program. Unfortunately, the law school does not have records of the number of female law students in its student body in individual years, but those figures could be reconstructed from the records of the University Registrar. However, the existing evidence suggests that Marquette’s pattern has generally tracked that of other ABA accredited law schools.

Note: All of the statements above that refer to “law schools,” refer actually refer only to ABA-accredited law schools. Outside of California, the vast majority of American law schools are ABA-accredited. In 1947, the number of ABA-accredited law schools was 111; by 2011, it was 201.

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The Public Frequently Disagrees With the Supreme Court

An article in Thursday’s New York Times by reporters Adam Liptak and Allison Kopicki examined the public response to the United States Supreme Court’s recent decision in the Affordable Health Care case. Based on public opinion polling shortly after the decision was handed down, only 46% of those surveyed agreed that the case had been correctly decided.

In a sidebar, the story also noted that public reactions of this nature were not unusual.

Using past public opinion polls to determine the immediate popular reaction to landmark Supreme Court decisions, the story reported that in 17 controversial cases decided between 1954 and 2011, majority support from the American public was the exception rather than the rule.

In only 4 of the cases did as many as 51% of respondents support the Supreme Court’s decision.

Two of the four cases were, perhaps surprisingly, the highly controversial opinions in Brown v. Board of Education (54%) and Roe v. Wade (52%). In both cases, a slight majority of Americans felt at the time that the cases were correctly decided.

The other two cases that evoked the support of the majority of Americans were Boy Scouts v. Dale (56%) (allowing the Boy Scouts to exclude homosexuals) and Clinton v. Jones (59%) (allowing Paula Jones to file a sexual harassment suit against the sitting president).

If we assume that the failure to agree with a decision represents a belief that the Constitution, properly interpreted, would have produced a different result, the polls suggest that the American people as a whole have instinctively embraced the following viewpoints:

(1) Race should never be a factor in assigning students to schools. (Brown v. Board of education and Parents Involved v. Seattle)

(2) Affirmative action, on the basis of either race or gender, is wrong. (Johnson v. Santa Clara and Grutter v. Bollinger)

(3) Women have a right to an abortion if they want one. (Roe v. Wade and Gonzales v. Carhart)

(4) It is okay for a private citizen or organization to discriminate against homosexuals, and gay sex acts can be treated as crimes. (Boy Scouts v. Dale and Lawrence v. Texas)

(5) Governmental security concerns trump the First Amendment. (New York Times v. U.S.)

(6) Foreign terrorists can claim no protection under the U.S. Constitution. (Boumediene v. Bush)

(7) The amount of money spent on political campaigns can be limited. (Buckley v. Valeo and Citizens United v FEC)

(8) Politically motivated U. S. flag burning should be a crime. (Texas v. Johnson)

(9) Prayer should be allowed in public schools. (Engle v. Vitale and Santa Fe v. Doe)

(10) The president can be sued for sexual harassment while in office. (Clinton v. Jones)

(11) No one really knows who should have won the 2000 presidential election. (Bush v. Gore)

Like it or not, this is popular constitutionalism.

Thanks to Scott Idleman for calling this article to my attention.

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John Roberts, the New John Marshall?

Immediately after learning that Chief Justice John Roberts had cast the deciding vote to uphold the Affordable Care Act’s individual mandate, I emailed my colleague Scott Idleman and suggested that Roberts was trying to be the new Charles Evans Hughes.

The reference, of course, was to Chief Justice Hughes who presided over the United States Supreme Court from 1930 to 1941. During the critical years of the early and mid-1930’s Hughes and his moderate Republican colleague Owen Roberts frequently sided with the Court’s three-man liberal bloc to uphold the constitutionality of a variety of relief statutes enacted to mitigate the harsh effects of the Great Depression. In doing so, Hughes frequently engaged in imaginative readings of supposedly settled parts of the Constitution, like the Obligations of Contracts Clause, the Due Process Clause of the Fourteenth Amendment, and the Commerce Clause.

I was not the only one to make the Hughes connection. The next day, my friend Dan Ernst of Georgetown University made a similar observation on the Legal History Blog.

However, I have come to believe that the better comparison for Chief Justice Roberts’ Obamacare decision are the opinions of his legendary predecessor, Chief Justice John Marshall.

That Hughes failed to vote with the Four Horsemen (the name for the Supreme Court’s conservative bloc in the 1930’s) is not really surprising. He had long been associated with the Progressive wing of the Republican party, and as a member of the Supreme Court from 1910 to 1916, and as the Republican presidential nominee in 1916, he generally supported a reading of the Constitution that was consistent with progressive reform and an activist state.

Hughes sided with the liberals because he was ultimately a liberal himself. Obviously, Roberts’ relationship with the other members of the Affordable Care Act decision (National Federation of Independent Business v. Sebelius) was a quite different one.

The similarity between Roberts and Marshall is based upon the willingness of both to sacrifice short term results in favor of long term objectives.

Marshall did this most famously with his opinion in Marbury v. Madison (1803). While denying his fellow Federalist William Marbury his commission as a justice of the peace of the District of Columbia—a commission issued by former Secretary of State John Marshall!—Marshall was able to establish the far more important principle of judicial review in his opinion. Although Marshall’s chief adversary, President Thomas Jefferson, knew exactly what Marshall was doing, he was without recourse since his side technically won the case.

Nearly two decades later, Marshall used the same tactic to confirm the superiority of federal constitutional review over that of the state courts in Cohens v. Virginia (1821). The Cohen brothers were convicted of violating a Virginia anti-lottery statute when they tried to sell tickets for a Congressionally-authorized lottery for the District of Columbia in Virginia. Virginia courts ruled that Virginia law took precedence over the act of Congress and both brothers were fined.

The Cohens appealed their conviction to the United States Supreme Court. Virginia contested the court’s jurisdiction on the grounds that the Constitution did not give the Supreme Court appellate jurisdiction over criminal cases begun in state courts or, for that matter, over any matter involving a state as a party. Moreover, it insisted that the Eleventh Amendment immunized it from suit in federal court, including appeals to the United States Supreme Court under Section 25 of the Judiciary Act.

As in Marbury, Marshall issued a powerful defense of federal judicial authority and in doing so rejected all of the arguments advanced on behalf of his home state. However, having rejected Virginia’s constitutional argument, he then found that the statute creating the District of Columbia lottery had not authorized agents to sell tickets in Virginia, and, therefore, there was no issue of federal versus state supremacy, and the Cohens convictions were withheld.

In Green v. Biddle (1823), Marshall adopted a broad, and not at all obvious, reading of the Obligations of Contracts Clause that was clearly at odds with a strict constructionist interpretation of the Constitution favored by his Virginia opponents. However, he issued this ruling in the context of upholding the validity of Virginia land titles in the state of Kentucky (which until 1792 was the westernmost county of Virginia), again leaving his opponents with a formal victory on the facts but with a major defeat on fundamental principles.

Roberts’ Affordable Care Act opinion appears to be a decision in this line. At its core, his opinion validates the older constitutional view that the Commerce Clause places real limitations on the extent of Congressional power, even in the realm of economic regulation. This position was long believed to have been discredited by the 1942 decision in Wickard v. Filburn, but in the Affordable Care Act case (National Federation of Independent Business v. Sebelius) five of the nine justices endorsed such a position.

However, because Justice Roberts found an alternate constitutional basis for upholding the individual mandate provisions of the act (the tax power), liberals were hardly in a position to criticize his opinion. Instead, he was roundly praised for his willingness to work with the Court’s liberal bloc.

However, as was the case with Marshall’s Marbury, Cohens, and Green v. Biddle decisions, the full implications of Roberts’ decision will not be known until a later day. Only history will tell us if Roberts’ use of this strategy will be as effective for him as it was for John Marshall.

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