April 06, 2007

The Fun Quote Is Not the Same as the Holding

by PG

Having recently attended the Columbia Law Women's Association's annual Myra Bradwell dinner, I was feeling fairly well up on her story when I noticed her name mentioned in a TNR review of Belva Lockwood: The Woman Who Would Be President as part of their big Hillary issue (non-TNR subscribers can read the review here). Princeton historian Christine Stansell writes a good review of what sounds like an excellent book, but either due to her own error or to biographer Jill Norgren's inaccuracy, Stansell misrepresents the reasoning behing the Supreme Court's decision that the Illinois bar could refuse to admit Bradwell.

It was a tough time to embark on a legal career. In 1873, the Supreme Court dealt a stunning blow to women lawyers in Bradwell v. Illinois, which upheld a lower court's ruling that the Illinois bar could refuse to admit Myra Bradwell, a Chicago attorney who practiced law with her husband (both were active campaigners for women's suffrage), on the grounds of the timidity and the domestic nature of the sex. The situation was uneven and complex: a few state bars had admitted women, and by the time Myra Bradwell's case reached the Court, the state of Illinois had passed a law granting all persons, regardless of sex, the freedom to choose a profession. But Bradwell had a strong negative effect in confirming powerful prejudices against women's ability to engage in legal reasoning and endure the nasty business of litigation.
Though the most memorable parts of Bradwell come from Justice Bradley's concurrence, the actual holding had nothing to do with female delicacy or similar nonsense. Rather, Justice Miller simply cited Slaughterhouse, which opinion was issued literally the day before Bradwell came down: if the 14th Amendment's privileges and immunities didn't protect the right to be a butcher, why would it protect the right to be a lawyer? These were state matters, and if the Illinois state bar had refused admission, Bradwell couldn't complain to the federal courts about it. Even the Illinois Supreme Court, as quoted in Bradwell, justified its decision by saying "that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women," rather than by invoking women's timidity.

April 6, 2007 03:03 AM | TrackBack
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