Multiple locations on the Wisconsin court system’s website introduce visitors to the moving story of Lavinia Goodell.[1] In 1875, after she had begun practicing law in Rock County the previous year, Goodell sought permission from the Wisconsin Supreme Court to argue a case in that forum. A unanimous three-justice panel denied her petition in an opinion written by Chief Justice Edward Ryan in 1876. Although he deemed women fit for a variety of functions, Justice Ryan concluded that “the profession of law is surely not one of these.” After all, he explained, “the peculiar qualities of womanhood” gave rise to a “tender susceptibility,” “emotional impulses,” and a “subordination of hard reason to sympathetic feeling,” among other traits unsuitable in the legal profession. Instead, nature had prepared women “for the bearing and nurture of the children of our race and for the custody for the homes of the world …” Activities contrary to the “sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it.”
In 1879, after the passage of a bill that explicitly allowed women to practice law, Lavinia Goodell gained admission (over the dissent of Chief Justice Ryan) to the Wisconsin Supreme Court bar. The following year, however, at the age of 40, she succumbed to cancer, and for many decades thereafter, women rarely appeared in the Wisconsin Supreme Court. Only with the dramatic increase in the number of women attending law school in the last quarter of the twentieth century has this begun to change. As more women embarked on legal careers, significant numbers began to reach positions of sufficient responsibility to enable them to conduct oral argument themselves in the supreme court, rather than appear simply as names on a brief, subordinate to a senior male colleague who addressed the justices.
As recently as the 1981-82 term, for instance, women delivered only 10 percent of the oral arguments presented to the supreme court. However, this share increased to 17 percent in 1991-92, and then climbed to 21 percent in 2001-02, before soaring to 33 percent in 2014-15. In other words, the percentage of oral arguments delivered by women to the Wisconsin Supreme Court more than tripled in scarcely more than a single generation.[2]
Not only are female attorneys visible, they predominate as oral advocates representing government agencies and public-interest groups. This category includes such organizations as the Public Service Commission of Wisconsin, clinics associated with the University of Wisconsin’s Law School, Legal Action of Wisconsin, and diverse city and county attorneys’ offices, but the overwhelming majority of the oral arguments in this grouping have been accounted for by the Attorney General’s Office and the State Public Defender.[3]
Of all the oral arguments presented on behalf of these government agencies and public-interest groups, women gave 55 percent of them in 2014-15 (compared to only 20 percent in 1981-82). Regarding the two dominant agencies in this category, women delivered 55 percent of the oral arguments prepared by the Attorney General’s Office, and they contributed a stunning 62 percent of the oral arguments given by lawyers from the Office of the Public Defender (towering above their 24-percent share in 1981-82).
As one can conclude from the previous paragraphs, women have been much less prevalent in the supreme court as representatives of private firms (and as sole practitioners). In 2014-15, women accounted for only 16 percent of the oral arguments delivered by lawyers in this category, and in 1981-82 the figure was only 3 percent. Although the increase from 3 to 16 percent is not trivial, the gap in 2014-15 between this 16 percent and 55 percent (women’s share of oral arguments on behalf of government agencies and public-interest organizations) is more dramatic. Evidently, government offices and public-interest groups are more willing to hire women. Or women are more interested in working there. Or women in private firms face a much longer road to discernibly responsible positions. Or some combination of such hypotheses.
Although the prospect of Lavinia Goodell’s presence at the Wisconsin Supreme Court struck Justice Ryan as contrary to the “order of nature,” he would doubtless have found it even more preposterous if someone had suggested the possibility that one day a woman would not only argue a case in the court but serve as one of the justices. I suspect that Lavinia Goodell herself could not have imagined such a thing occurring—as, in fact, it did not for an entire century. In 1976, exactly one hundred years after Justice Ryan offered his thoughts on women’s proclivities, Shirley Abrahamson joined the court. She remained the only woman on the bench until 1993, when, in what amounts to the blink of an eye from the perspective of an historian, she was joined first by Janine Geske (1993-98) and shortly thereafter by Ann Walsh Bradley, Diane Sykes (1999-2004), Patience Roggensack, Annette Ziegler, and Rebecca Bradley—so that all but two of the seven current justices are women—a far more remarkable transformation than has occurred so far at the top of either Wisconsin’s legislative branch or the state’s executive counterpart.[4]
[2] In every case decided by the court (except for the handful submitted on briefs), at least two attorneys delivered oral arguments. Some attorneys gave oral arguments in more than one case during the course of a term, and in these instances all of the oral arguments are included in the following totals. Women accounted for 25 of the 258 oral arguments given in 1981-82; 27 of 162 in 1991-92; 43 of 204 in 2001-02; and 40 of 120 in 2014-15. Supreme Court decisions (which include information about the lawyers who participated in oral arguments) are available on the court system’s website for 2001-02 and 2014-15, and through services such as Lexis and Westlaw for the 1981-82 and 1991-92 terms.
[3] In 1981-82 the Attorney General’s Office and the Public Defender’s Office gave 72 of the 103 oral arguments conducted by lawyers in the category—and 46 of 53 in 2014-15—with the Attorney General’s total more than double that of the Public Defender.
[4] Women accounted for 15 percent of Wisconsin’s legislators in 1981 and 25 percent in 2015.
About Alan Ball
It was brought to my attention that, in addition to listing the five women who are current supreme court justices, I should have mentioned Janine Geske (1993-98) and Diane Sykes (1999-2004). I am grateful for this alert and have updated the post.