Is There a Female Bloc on the U.S. Supreme Court?

For several decades commentators have referred to the United States Supreme Court as being divided into liberal and conservative blocs. Now, suddenly, it looks like there may be male and female blocs as well.

(Since a “bloc” normally has to have at least three members, the possibility of a female bloc came into existence only with the 2010 appointment of Justice Elena Kagan.)

In the Court’s recent decision in Blueford v. Arkansas, the court decided by a vote of 6-3 that the Constitution’s Double Jeopardy Clause did not prevent the State of Arkansas from retrying the petitioner Bluefield on capital murder charges.

Blueford was accused of killing his girlfriend’s young child and was indicted for capital murder. During his trial, the Arkansas jury was instructed to consider also the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. Ultimately, the jury was unable to reach a verdict and it reported to the trial judge that it was deadlocked on the manslaughter charge. The jurors also stated that they had voted unanimously against Blueford’s guilt for the capital murder and first-degree murder charges and did not vote on negligent homicide.

In response, the trial judge declared a mistrial. When the state chose to retry Blueford, his lawyers moved to dismiss the capital and first-degree murder charges, based on double jeopardy considerations. The trial judge denied the motion, and the Arkansas Supreme Court agreed that double jeopardy had not attached.

Having granted cert., the United States Supreme Court affirmed the decision of the Arkansas Supreme Court. By a vote of 6-3, the court held that double jeopardy does not bar retrying Petitioner for capital and first-degree murder since the jury had not made a final resolution of the charges in the initial trial. Chief Justice John Roberts delivered the opinion, joined by male Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Female Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan.

Whether or not gender played a role in the 6-3 split is an interesting question, but has not yet been addressed by commentators. Of course, one case does not establish a pattern, but it will be interesting to see if the pattern in Blueford v. Arkansas repeats itself.

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Black Lawyers in the 1930s

African-American lawyers were a scarce commodity in 1930.

A recent post on the ConLawBlog posed the question of how many African-American lawyers there were in the United States in 1930.  This is a subject that I have been studying for some time, and thanks to a heads up from Professor Idleman, I was able to answer the question.

According to the U.S. Census, in 1930, there were only 1247 black lawyers in the entire United States in 1930, out of a total number of 160,605 lawyers.  Of the 1247, 1223 were male and only 24 were female.

Even though the Great Migration had begun after World War I, the bulk of the African-American population still lived in the South in 1930. However, thanks to racial prejudice and limited economic opportunities below the Mason-Dixon line, a significant majority of black lawyers lived outside the South.

The largest concentrations of black male lawyers was in Illinois, which had 187 male African-American attorneys.

Other states with significant numbers were New York (117); Ohio (94); Michigan (63); and Indiana (62). The only Southern jurisdictions with comparable numbers were the District of Columbia (94); and Virginia (57).

Complete state-by-state breakdowns for the 24 females are not provided in the published Census Reports for 1930.  The largest number of black female lawyers appears to have been in the District of Columbia, where there were four.

As a percentage of total lawyers, black male lawyers accounted for more than 2% of total male lawyers only in the District of Columbia (2.8%) and Virginia (2.4%). If female lawyers are included — and the number of female lawyers in those two jurisdictions is available — the percentage of black lawyers in each of those two jurisdictions actually goes up slightly, but was still less than 3%.

Nowhere was the absence of black lawyers in 1930 more shocking than in the Deep South.  In spite of the large black population, proportionately much larger than it is today, Alabama had only 4 black lawyers, while Mississippi, Louisiana, and Florida had only 6, 8, and 10, respectively.  The totals for Georgia and South Carolina were just 14 and 13.

Black lawyers were more numerous in the other former Confederate states, but only slightly: North Carolina (27), Tennessee (26), Arkansas (16), and Texas (20).

Not surprisingly, given the small pre-World War II black population of Wisconsin, black lawyers were scarce in the Badger State.  According to the 1930 Census, there were only three black male lawyers in Wisconsin in 1930, although there was also at least one black female attorney, former Marquette law student Mabel Raimey.  (The three black male lawyers included law partners George Heriot DeReef, A.B. Nutt, and James Weston Dorsey, and Ambrose B. Nutt, all of Milwaukee.)

By way of comparison, Minnesota had 11 black lawyers in 1930, while Iowa had 7.  North and South Dakota had none.

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Oldest Living Marquette Law School Graduate Passes Away, Excelled in Law and Sports

Frank Zummach, thought to be the oldest living graduate of the Marquette Law School, passed away on April 30, in his hometown of Sheboygan at age 101.

In addition to a long career as a member of the Wisconsin bar, Zummach also played and coached basketball at Marquette, and from 1939-1942, he served as head coach of the Sheboygan Redskins of the National Basketball League, a forerunner of the NBA.

Zummach, a Milwaukee native, attended Marquette High School, and enrolled as a college student at Marquette in 1929. He began playing basketball for Marquette in 1930, and he entered the law school in 1932, with one year of varsity eligibility remaining.

Zummach continued to play on the Hilltopper varsity team as a first year law student and then switched to the role of assistant coach once his eligibility as a player expired. When he received his law degree in 1935, Frank was a member of the second class of Marquette Law students to be admitted to the bar under the diploma privilege. Because of the quality of his work in law school, he received the J.D. degree, rather than the then more common, L.L.B.

Frank gave up coaching in the fall of 1942 and for the next six decades, he practiced law in Sheboygan. In the late 1990’s, he was “rediscovered” by basketball historians and was a frequently lauded figure in basketball circles during the final fifteen years of his life.

For more on Frank’s career, see my post “The Marquette Law School Graduate Who Coached in the NBA Finals.” An extended obituary from the Sheboygan Press can be found at here.

 

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