By Marlene Trestman
While writing Fair Labor Lawyer, the book-length biography of New Deal attorney and Supreme Court advocate Bessie Margolin (1909-1996), I learned much about the Supreme Court careers of other pioneering women lawyers. Only by compiling a list of the first 101 women to argue at the Supreme Court, did I discover that Margolin was the 25th woman ever to do so. That list also revealed that Margolin’s 24 Supreme Court arguments earned her third place among the top women advocates of her time, right behind Mabel Walker Willebrandt and Beatrice Rosenberg, and right ahead of Helen Carloss, who argued 29, 28, and 21 arguments, respectively. As I earlier noted, the combined 102 arguments presented by this highly regarded foursome of federal government attorneys represents almost half of all arguments by women at the time.1 But my list of 101 women ended with arguments in April 1974, and thus it could not answer my next question: Had any other woman, in the remaining years of the twentieth century, surpassed the number of Supreme Court arguments presented by Willebrandt, Rosenberg, Margolin or Carloss?
Fueled equally by curiosity and stubbornness, and using the same methodology I employed in identifying the first 101 women, I completed the tedious yet intriguing tally of all female Supreme Court oral advocates of the twentieth century. This effort confirmed that, although several impressive female advocates came close, no other woman argued at the Supreme Court prior to the October Term of 2000 as often as any of the first fabulous four. The women with the next highest numbers of twentieth century Supreme Court arguments were attorneys Harriet S. Shapiro (17), Amy L. Wax (15), Beth S. Brinkmann (15), Kathryn A. Oberly (13), Elinor Hadley Stillman (12), and Maureen E. Mahoney (11). The effort also revealed that from October Term 1880, during which Belva Ann Lockwood became the first woman known to argue at the Supreme Court, through Katherine P. Baldwin’s April 2000 argument (her fourth), at the close of October Term 1999, a total of 519 different women lawyers presented a total of 938 arguments during those 136 years.
Having stopped my tally at the end of October Term 1999, I could only hope that some other curious researcher would continue the inquiry. Imagine my delight when I learned that Julie Silverbrook and Emma Shainwald picked up where I left off and completed the tally through December 2016. Silverbrook and Shainwald’s research showed that in just the first 16 years of the twenty-first century, women argued 500 times, an amount equal to more than half of all arguments presented by women during the entire twentieth century. Our combined work revealed that, as of the close of 2016, a total of 726 different women presented argument at the Supreme Court 1438 times.
Since then, Professor Jerry Goldman and technology collaborator Jeff Parsons of the Oyez Project enthusiastically joined the initiative, continuing the count through the end of October Term 2018, while also catching a few pesky numbering errors. When Supreme Court Librarian Jill Duffy most recently spotted the omission of several female advocates, I knew it was time to closely review, revise, and update the entire list. The results of that effort, attached as Table 1, reveal that as of May 4, 2021, the last day of oral argument for the current October Term 2020, a total of 769 different women had presented argument at the Supreme Court 1555 times.2 On the term’s penultimate day of oral argument, Lisa S. Blatt set the new record for the highest number of arguments by a woman: 41.
The accompanying bar graph (Table 2) summarizes the numeric information in the revised and comprehensive tally. Up through October Term 1969, the number of Supreme Court arguments by women reached a maximum of 10 to 12 during each of only 5 terms. Throughout the remainder of the twentieth century, the number of arguments by women remained at or above 12 per term, with the only exceptions being October Terms 1977 and 1994 during each of which the number of arguments by women dropped to 9. Indeed, beginning with October Term 1976 (during which the number of arguments by women rose for the first time to 22) and continuing through the rest of the twentieth century, the number of arguments per term never dropped below 20, with the same exceptions of 9 arguments during each of October Terms 1977 and 1984. Women presented 30 or more arguments during each of 8 terms spread across the last quarter of the twentieth century (1978, 1983-1986, 1992, 1996 and 1998), and presented the century’s greatest number of arguments (40) during October Term 1986.
During the twenty-first century, thus far, the number of arguments presented by women during each term remained at or above 25 for all but three terms (2003, 2017, and 2019, with 24, 19, and 20 arguments, respectively. At the same time, the number of arguments presented by women during this century has reached a maximum of 35 during only one term (2016), four arguments shy of the record 40 arguments during October Term 1986.
These figures take on greater meaning when contrasted with the number of male attorneys who regularly dominate the podium in the High Court. During October Term 1986, for example, when women advocates presented their all-time maximum of 40 arguments in any one term, men presented 306 arguments, more than 7 times the number of arguments by women. At the same time, of the 38 days on which the Court heard oral argument that term, women argued on 25 of those days, ranging in number from 1 to 3; the number of men who argued on each of the 38 days ranged from 5 to 11, with at least 8 men arguing on 24 of the days. Of the total 151 oral arguments that term, only two arguments were presented exclusively by women.3
As reflected in Table 1, the voices of women advocates were prominent on other occasions. Women argued against (or with) other women in the same cases 55 times during the twentieth century, and 80 times during the first 21 terms of the twenty-first century. In October 1955, Gloria Agrin and Blanch Freedman became the first women to argue against each other. Nukk v. Shaugnhessy, 350 U.S. 869 (1955). Notably, in April 1969, April 1970, and November 1970, Eleanor Jackson Piel and Maria L. Marcus argued and then twice reargued against each other in Samuels v. Mackall, 401 U.S. 66 (1971).
The largest number of women advocates ever to argue on the same day was five, which has occurred only once in the Court’s history. On April 19, 1988, Susan S. Dickerson, Mandy Welch, Maureen Mahoney, Evalynn Welling and Ellen Viakley presented arguments in four different cases, and outnumbered the four male advocates that day. Counting Justice Sandra Day O’Connor, who joined the bench seven years earlier, that occasion also marked the first time in the Court’s history that the voices of six women were heard during oral arguments on a single day. That number of women’s voices did not reoccur until the penultimate term of the century. On January 12, 1999, four women, Verna L. Williams, Barbara D. Underwood, Barbara B. McDowell, and Donna D. Domonkos (and two men), argued two cases to a Supreme Court that included not only Justice O’Connor but also Justice Ruth Bader Ginsburg.
So far during the twenty-first century, the highest number of women advocates to argue on the same day is three, which has happened 32 times. Thus, it wasn’t until Justice Kagan joined Justices Sotomayor and Ginsburg on the bench for the October 2010 Term that the voices of six women were again heard during oral arguments; it happened on March 1, 2011 when Leondra Kruger, Carolyn A. Kubitschek and Melissa Arbus Sherry presented argument in two different cases, and has happened again 16 times.
As this extensive exercise was originally prompted by my quest to set straight Bessie Margolin’s Supreme Court argument record, it seems only fitting to tie up loose ends. As of May 2021, only 11 women have argued at the Supreme Court 20 times or more, and to this day only 6 of them have presented more arguments than Margolin.
If she were still alive, I am certain that Bessie Margolin would congratulate her fellow advocates on reaching their historic milestones, and would heartily welcome more women to the group.
Marlene Trestman is the author of Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin (LSU Press, cloth 2016, paperback 2020). A former Special Assistant to the Maryland Attorney General, Trestman received the Supreme Court Historical Society’s Hughes-Gossett Award for “Fair Labor,” her 2012 article on Margolin, which was published in the Journal of Supreme Court History. In 2013, the Journal published “Addenda to ‘Fair Labor,'” Trestman’s proposed methodology for counting the Supreme Court arguments of historic advocates, and in 2014 posted online her list of “The First 101 Women to Argue at the Supreme Court.”
1 For additional information about the “fabulous four,” see Marlene Trestman, “Willebrandt, Carloss, Margolin, and Rosenberg: Four 20th Century Superstars of the Supreme Court Bar,” 101 Women Lawyers Journal 19-23 (Summer 2016).
2 As reflected by the errors and omissions in the prior tallies that were identified and are now corrected, the process of identifying and counting all female advocates remains fraught with opportunities for mistake, including those arising from simple miscounting to changes in surname that occasion marriage or divorce.
Consequently, I continue to welcome corrections. Moreover, I acknowledge that this inquiry accepts and reinforces an outdated binary conception of gender. As expressed by Jennifer C. Mika and Nancy Leong in their gender disparity studies, this approach “obscures, for example, transgender identification, or identification by those who do not consider themselves either men or women.” See Mika, “The Noteworthy Absence of Women Advocates at the United States Supreme Court,” 25 Am. U. J. Gender Soc. Pol’y & L. 31, 33 n. 9 (2017), citing Mika and Leong, “The Persistent Gender Disparity in Student Note Publication,” 23 Yale J.L. & Feminism 385, 395 n.43 (2011). Despite the inadequacy of the binary gender approach, I lacked a viable way to divide individuals into more than two genders. To improve future gender-based study of advocates, and to respect the gender identity of advocates both during oral argument and as recorded in the argument transcript and Supreme Court Journal (e.g., Mr., Ms., or Mx.), the Supreme Court may wish to institute a process for arguing counsel to indicate preferred honorifics and pronouns.
3 Patricia A. Brannan and Deborah T. Garren were the only counsel to present argument in Shaare Tefila Congregation v. Cobb on February 25, 1987, as were Gaele M. Barthold and Catherine M. Harper in Pennsylvania v. Finley on March 2, 1987.