Women Advocates Before the Supreme Court
Women Advocates Before the Supreme Court,
From October Term 1880 through December 2016
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. 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 compiling the list of the first 101 women, I completed the tedious yet intriguing tally of all female Supreme Court oral advocates of the twentieth century. As reflected in that tally, which accompanies this essay as Table 1, I have now 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).
Like my original list, the expanded list begins with October Term 1880, during which Belva Ann Lockwood became the first woman known to argue at the Supreme Court, but continues through Katherine P. Baldwin’s April 2000 argument (her fourth), at the close of October Term 1999. My expanded list identifies a total of 520 different women lawyers who 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 through the present. Imagine my delight when I learned, right before this essay went to print, that Julie Silverbrook and Emma Shainwald picked up the work where I left off and completed the tally through December 2016, as set forth in Table 2. Silverbrook and Shainwald found that in just the first 16 years of the twenty-first century, women argued 491 times, an amount equal to more than half of all arguments presented by women during the entire twentieth century. Our combined work reveals that, as of the close of 2016, a total of 726 women have presented argument at the Supreme Court 1430 times.
The accompanying bar graph (Table 3) summarizes the numeric information set forth in both tallies. 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 a completed term has remained at or above 25 for all but one term (2003, 24 arguments); at the same time, the number of arguments presented by women during this century reached a maximum of only 34 during each of two terms (2001 and 2014).
These figures take on greater meaning when contrasted with the number of male attorneys who regularly dominated the podium in the High Court. Taking October Term 1986, for example, when women advocates presented their all-time maximum of 40 arguments, men presented 306 arguments, more than 7 times the number of arguments by women. Moreover, the 40 arguments presented by women were heard in 36 different cases; the 306 arguments by men were heard in 149 different cases. During October Term 1986, arguments were presented exclusively by women in only two of 151 cases.
As reflected in Tables 1 and 2, 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 63 times during the first 16 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 occurred only once during the twentieth century. 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.
During the twenty-first century, the highest number of women advocates arguing on the same day is three, which has happened 28 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 11 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 December 2016, only 9 women have argued at the Supreme Court 20 times or more, and to this day only 5 of them have presented more arguments than Margolin.
|1||Lisa S. Blatt||34|
|2||Patricia A. Millett||32|
|3||Mabel Walker Willebrandt||29|
|5||Nicole A. Siharsky||27|
|6||Beth S. Brinkmann||24|
|9||Maureen E. Mahoney||20|
 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).
 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).
Below are PDF Charts with information listing the First 101 Women to argue at the US Supreme Court, 1880 - 1999 and 2000 - 2016.
1880 - 1999 Please click here to download the PDF if it does not load.
2000 - 2016 Please click here to download the PDF if it does not load.
The Excel Sheet for this data is available here download link.