By Marlene Trestman
July 10, 2014
My research to write the first biography of Bessie Margolin, 1909-1996, has once again prompted an unexpectedly lengthy inquiry to answer what had seemed a simple question: How many women argued at the Supreme Court before Margolin's first argument in Phillips v. Walling, 324 U.S. 490 (1945), on March 2, 1945? As I quickly learned, despite thoughtful literature on the earliest women Supreme Court advocates, no complete list existed, nor was it obvious, as explained below, how to compile one.
Once I undertook the project, and learned that Margolin was the 25th woman to argue at the Supreme Court, I continued to identify all the women who argued there until Margolin retired as Associate Solicitor of Labor in January 1972. After I identified the 87th woman (Sophia H. Hall, Chicago, IL) who argued in January 1972, it seemed only appropriate to neatly conclude my work with the 100th woman (Joanne Condas, California Deputy Attorney General). Her adversary also turned out to be a woman (Wendy W. Williams, Legal Aid Society of San Mateo, CA), and so I included them both for their March 1974 argument in Geduldig v. Aiello, 417 U.S. 484 (1974).
Besides answering my initial question and identifying Margolin's fellow members in perhaps the legal profession's most exclusive women's club, my research developed other interesting facts. While it was not surprising that government employment provided great opportunity for women lawyers to argue at the Supreme Court, those women argued with unexpected frequency. Forty-three of the 101 women argued on behalf of federal, state or local government, in one or more of their arguments. Moreover, of the 270 arguments presented by these 101 women prior to 1975, 110 were presented by only five women -- Mabel Walker Willebrandt (29), Beatrice Rosenberg (28), Bessie Margolin (24), Helen R. Carloss (21), and Ruth Weyand (8) -- representing the federal government in all but one of these arguments. (Willebrandt was in private practice when she presented her 29th argument.) State Assistant Attorneys General Beatrice W. Lampert (WI), Dorothy Beasley (GA), and Jean M. Coon (NY), set the record with five arguments each, followed with four arguments by New York Assistant Attorneys General Brenda Soloff and Maria L. Marcus, and New Orleans Assistant District Attorney Louise Korns. Assistant Attorneys General Doris H. Maier (CA) and Ruth Kessler Toch (NY) each argued three times. Several other federal, state and local government lawyers also argued more than once.
At least 14 women represented NAACP, ACLU, Legal Aid or other advocacy organizations in one or more of their arguments. Constance Baker Motley presented 9 Supreme Court arguments on behalf of the NAACP.
Geographically, at the time of their first arguments, these 101 women represented 20 states, with the largest number of women coming from New York (23), District of Columbia (18), California (12), Illinois (8), Pennsylvania (6) and Texas (5). Three or fewer women came from each of fourteen other states: Alabama, Arizona, Florida, Georgia, Iowa, Kansas, Louisiana, Michigan, Mississippi, North Carolina, Oregon, Ohio, West Virginia and Wisconsin.
My method requires explanation. When I discovered that published Supreme Court decisions fail to consistently distinguish attorneys who argued from those who signed the briefs, I relied on the Journal of the Supreme Court of the United States, which provides a detailed account of who argued each case from 1889 to the present. (Although online databases HeinOnline and Digital LLMC contain the Journal from 1902 to present, the Supreme Court Library maintains its own searchable database of all Journal issues back to 1889.) For arguments prior to 1889, I attempted to review the handwritten entries of the Supreme Court minutes, available on microfilm at the Supreme Court Library and at the National Archives.
I started with Belva Lockwood's well-publicized first argument in November 1880, and managed to review only one reel of microfilm (which ended in November 1882), due the difficulty of deciphering the looping cursive handwriting, especially in a microfilm format. Thus, I acknowledge that I have omitted any women who may have argued between December 1882 and October 1889. Given the publicity and prior research that identify Belva Lockwood's second argument In January 1906, and no other woman before then, I believe there is slight chance of such omission. Having identified the source material, I then needed to develop a reasonable method of identifying gender of these historic advocates. Fortunately, the Journal appears to consistently use the prefixes "Miss" and "Mrs.," except in the case of Assistant Attorneys Generals, such as Annette Abbott Adams and Mabel Walker Willebrandt, who were listed by only their title and surname. Thus, I performed digital searches for the words "Miss" and "Mrs.," supplemented by specific name searches for Abbott and Willebrandt, and other early female Assistant Attorneys General. When I discovered that the digital searches occasionally failed to capture all of the search terms, often due to the poor copy quality of the original volumes, I resorted to reviewing the volumes online, page by page.
In the relatively few cases in which I suspected that the Journal erroneously designated gender, I turned to other resources such as legal and newspaper databases. In this way, I discovered some mistakes: "Mrs. S.E. Ellsworth," (1907 J. Sup. Ct. 64), "Mrs. E.D. Vickery," (1962 J. Sup. Ct. 239), and "Mrs. James M. Nabritt, III," (1970 J. Sup. Ct. 54) all turned out to be Messrs.
The list is limited to women who presented argument. For the sake of consistency and practicality, I excluded numerous instances in which women submitted on briefs in lieu of argument, as did Ellen S. Mussey (1905 J. Sup. Ct. 58), Sarah Sorin (1906 J. Sup. Ct. 17; 1912 J. Sup. Ct. 208), Winifred Sullivan (1915 J. Sup. Ct. 196), and Ada Bittenbender (1916 J. Sup. Ct. 244), among others.
Because I was interested in quantifying the history of oral arguments by women at the Supreme Court, I included not only each time each woman argued (through March 1974), but also instances in which the women reargued the same case. Eleanor Jackson Piel of New York and New York Assistant Attorney General Maria L. Marcus, numbers 71 and 72, for example, argued the same case against each other a total of three times, over a period of 18 months.
I have provided the page citations and docket numbers for all entries on the chart to enable interested researchers to follow up on my work, not only to continue the list but to correct any omissions and errors. Unless they discover a better research method, all they will need are patience and strong eyes.
 Marlene Trestman, a former Special Assistant to the Maryland Attorney General, is writing the biography of Bessie Margolin, to be published by LSU Press' Southern Biography Series. She received the Supreme Court Historical Society's Hughes-Gossett award for her article, "Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin, 1909-1996," 37 J. Sup. Ct. Hist. 42-74 (2012), after which she published, "Addenda to 'Fair Labor,' A Discussion of Methodology in Tallying Margolin's Supreme Court Record As Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss, and Beatrice Rosenberg," 38 J. Sup. Ct. Hist. 252-260 (2013).
 See, e.g., Clare Cushman, Supreme Court Decisions and Women's Rights, 207-234; Mary L. Clark, "Women as Supreme Court Advocates, 1879-1979," Journal of Supreme Court History, 47-67; Mary L. Clark, "The First Women Members of the Supreme Court Bar, 1879-1900," 36 San Diego L. Rev. 87- 135 (1999).
Below is a PDF listing the First 101 Women to argue at the US Supreme Court, 1880 - 1990. Please click here to download the PDF if it does not load.