January 24, 2008 — Supreme Court Fellows Dinner, Washington DC

I am glad to attend this 35th Anniversary celebration of the Supreme Court Fellows Program. It just happens that all four of the 2007-2008 Fellows are women. Another historic first: Just last week the Chief Justice appointed a woman — the first ever — to serve as Special Master in an original jurisdiction case. Two clear signs of how much has changed since the time this Court was first asked to entertain a woman’s application to become a member of the Court’s Bar. I thought it fitting, in these brief remarks, to look back to that earlier time and present a cameo portrait of the brave 19th century woman who broke the Court’s barrier. Her name, Belva Ann Lockwood.

In March 1879, the Evening Star, a widely read Washington, D.C. newspaper, reported: “For the first time [ever], a woman’s name now stands on the roll of [Supreme Court] practitioners.” That woman, Belva Lockwood, was not born to wealth or social advantage. She grew up on a family farm in Niagara County, New York. Widowed with a child at age twenty-two, she enrolled in college to gain the training she needed to become a teacher and, later, a school principal. She moved to Washington, D.C., in 1866, remarried, became a suffragist and an ardent advocate for widening employment opportunities for women. Once settled in our Nation’s Capital City, she also embarked on her long-held ambition to become a lawyer.

Her sister suffragist, Elizabeth Cady Stanton, compared Lockwood to Shakespeare’s Portia.

Lockwood resembled Shakespeare’s character in this respect: Both were individuals of impressive intelligence who demonstrated that women can hold their own as advocates for justice. Like Shakespeare’s Portia, Lockwood used wit, ingenuity, and sheer force of will to unsettle society’s conceptions of women as weak in body and mind. But Portia, to accomplish her mission, impersonated a man before revealing who she was. Lockwood, in contrast, used no disguise in tackling the prevailing notion that women and lawyering, no less politics, do not mix. Not only did she become the first woman admitted to the Bar of the Supreme Court, she ran twice for the office of President of the United States.

Her frontrunner status was achieved by unflagging effort. In 1869, then a mother of two approaching her thirty-ninth birthday, Lockwood applied for admission to law school. Her applications were rejected on a familiar ground: Her presence “would be likely to distract the attention of the young men.” Lockwood persevered until the National University Law School (now George Washington University Law School) allowed her to matriculate. She encountered yet another impediment when that school refused to issue the diploma she had earned. Men in the class were again the asserted obstacle. Graduating with women, it was feared, would lessen the value of the men’s diplomas.

To overcome that roadblock, Lockwood wrote to President Ulysses S. Grant, titular head of the University. She wasted no words: “I have passed through the curriculum of study . . .  and demand my diploma.” Grant did not answer, but two weeks later, in September 1873, the University’s Chancellor awarded Lockwood her diploma.

In 1876, having practiced law in the District of Columbia for three years, Lockwood qualified for, and sought U.S. Supreme Court Bar membership. Chief Justice Morrison R. Waite announced the Court’s denial her application with this explanation:

By the uniform practice of the Court . . .  and by the fair construction of its rules, none but men are permitted to appear before it as attorneys and counselors.

The announcement of the Court’s decision did not note dissents; in fact, three of the Justices, including the Chief Justice, had voted to admit Lockwood. Nonetheless, the evening paper reported Lockwood’s rejection under the headline: The Chief Justice squelched the fair applicant. At a White House dinner the same day, the Chief silently endured some teasing from his wife and the First Lady for the Court’s action.

Undaunted, Lockwood relentlessly lobbied Congress to grant her plea. She succeeded less than three years later in February 1879. Congress decreed that “any woman” possessing the necessary qualifications “shall, on motion, . . . be admitted to practice before the Supreme Court of the United States.” (Lockwood’s case illustrates the productive dialogue sometimes carried on between the Court and Congress.) Once a member herself, Lockwood moved the admission of Samuel R. Lowery, first African-American attorney from the South to gain admission to the Supreme Court Bar.

Twenty-one months after her admission, Lockwood became the first woman to participate in oral argument at the Court. She next and last argued before the Court in 1906. Then age seventy-five, with three decades of experience as an attorney skilled in pressing claims against the United States, she helped to secure a multi-million dollar award for Cherokee Indians who had suffered removal from their ancestral lands, without just compensation.

Lockwood was not content to rest on her personal achievements. She sought not only suffrage, but full political and civil rights for all women. Though she could not vote for President, she ran for the office herself, pointing out that nothing in the Constitution barred a woman’s eligibility. Explaining why she entered the race, she wrote in a letter to her future running mate, Marietta Stow: “We shall never have equal rights until we take them, nor respect until we command it.” In 1884 and 1888, during her two campaigns as the presidential nominee of the Equal Rights Party, Lockwood drew attention to a range of issues important to Americans, among them, preservation of public lands, reform of family law to make it less unfair to women, and use of tariff revenues to fund benefits for Civil War veterans. No celestial idealist, Lockwood turned to advantage the publicity of the campaign to launch herself onto the paid lecture circuit.

Visitors to my chambers will see posted on a wall outside a replica of the vote sheet recording the Court’s refusal to admit Lockwood, and one of many less than flattering cartoons published during her presidential runs. She was a woman of sense and steel. Along with legions of others, I am inspired by her example, and elated by the progress of our society toward full and equal citizenship stature for men and women.

Please join me now in applauding that progress, and in toasting Supreme Court Fellows past, present, and future. 

Cheers and Bon Appetit.

*In framing these remarks, I have drawn heavily on an excellent, recently published biography, Jill Norgren, Belva Lockwood: The Woman Who Would Be President, (New York University Press) 2007.

Source: 2008 Southwestern Law Review, 37 Sw. L. Rev. 371 (2008).

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