Monday, April 20, 2009

Worst Supreme Court Cases For Women You've Never Heard About #1: Bradwell v. Illinois

I got the idea to make a top ten list from KipEsquire. At first, I was tempted to compose my very own list of some of the worst US Supreme Court cases ever. Among these would be notorious cases like Plessy v. Ferguson which upheld the constitutionality of the "separate but equal" doctrine, Bush v. Gore (which the Court should have never agreed to hear), and Bowers v. Hardwick (which upheld laws that made private sex between consenting adults of the same-sex illegal).

As I kept going, I realized that there are way more than 10 "bad" cases and that the criteria for even determining what's a bad case is incredibly subjective. For instance, is a "bad" case one with a poor outcome even if it has "good" reasoning? Or, must a "bad" case have a poor outcome as well as poor reasoning? Generally, I tend to agree with the line of legal thought that says judges are incapable of eschewing their personal policy preferences and leanings when making decisions. Call me a cynic (I prefer realist), but I simply do not believe that judges are neutral arbiters who merely discover and apply "objective law" to the case at hand.

As historian Leonard Levy has written, the Supreme Court has a long history of having Justices, of all political persuasions, who seem to "...first choose what the outcome should be and then reason backward to supply a rationalization, replete with the appropriate rules and precedents, of which there are enough on any side of an issue to make any argument seem to respect tradition and professional expertise." Judges are human beings and, as such, are as much of a product of their times, upbringings, and cultures as the rest of us. While I do believe that many individual justices have been able to transcend the popular biases of their time in order to render opinions that are consistent with the protection of individual rights, it has also been apparent that many were not capable of doing so.

And that's what this list is about. Most of us have heard about the big and important cases like the ones above. Few, even those who have attended law school, have heard about the smaller, yet just as insidious, ones that I'm about to mention that involve equality for women. That's what this series is about.

Just because this one hits close to home, our first winner is:

Bradwell v. Illinois (1872)

Bradwell is sort of a two-for-one in that, in addition to rendering an unfortunate result for women, it also illustrates how deameaning "traditional marriage" used to be for women. Essentially, marriage rendered women publicly invisible by subsuming women into the legal identity of their husbands and isolating them within the private sphere of home.

In Bradwell, the Illinois Supreme Court refused to issue a woman, Myra Bradwell, a law license because she was a married woman. In 1872, under the law of coverture, a married woman had neither her own separate legal identity nor the right to enter into legal agreements (or own her own property or keep her own earnings if she did have a job). The Illinois Supreme Court denied Bradwell's application for a law license because, as a married woman, she would have been unable to create a legal attorney-client agreement. As an item of note, she met every other state requirement for a law license other than the implicit one that required a penis and testes. For, "When Myra Bradwell sought a license to practice law, she already had extensive legal experience. She had studied law with her husband, James B. Bradwell, and was the founder and publisher of the leading midwestern legal publication, the Chicago Legal News." (Back then, Illinois law required only that applicants to the state bar be adults of "good character" and have "sufficient training." Attorneys didn't have to go to law school, as many people learned through apprenticeships).

On appeal to the US Supreme Court, Myra Bradwell argued that the denial of a law license violated her constitutional rights as a US citizen under the Privileges and Immunities Clause of the US Constitution. In rejecting Bradwell's argument, without elaboration or analysis, the US Supreme Court declared that the SlaughterHouse Cases "renders elaborate argument in the present case unnecessary" because "[i]t is sufficient to say they are conclusive of the present case." By "conclusive" the Court meant that, under Slaughterhouse precedent, Illinois could pass whatever licensing laws it wanted, even if these laws were discriminatory to women. For some historical context, the Slaughterhouse Cases notoriously weakened the US Constitution's power to protect civil rights by holding that certain protections in the US Constitution did not apply to states. Generally, this meant that while the federal government could not pass discriminatory laws, states were free to do so.

So that was all settled then. In Bradwell, we see an all-white male Supreme Court desperately seeking to maintain legal and economic privileges for people like themselves. Perhaps that's why they felt no need to render any sort of analysis as to how the Slaughterhouse Cases were similar/dissimilar to the present case, or even to question whether the Slaughterhouse precedent was worth re-examining.

In other words, Bradwell v. Illinois wasn't even a real opinion. The Supreme Court didn't give Bradwell the courtesy of a simple little IRAC analysis that every diligent 1L is capable of doing. If I were grading an exam and a student merely stated a conclusion without argument, claiming that the argument was "unnecessary" because the answer was so obvious, the student would score no points. Not only because of arrogance and laziness but because it's never the conclusion that's the meat of an opinion, it's the analysis. The analysis is what makes it possible for future judges to decide cases that have similar-but-slightly-different fact patterns, it's what enables attorneys to craft arguments as to why some cases are controlling and others are not, and it offers everyone else a semblance of predictability with respect to how future cases will or should turn out.

Instead, the Supreme Court wiped its hands of legal analysis before moving on to its real agenda- using its status as the highest court in the land to opine upon the Way More Important Issue of Woman's Role In The Public Sphere (hint: she doesn't have one). Doing nothing more than arguing from their guts, the men on the Supreme Court came to the conclusion that women shouldn't be lawyers anyway because it is woman's destiny to not have a job outside of the job of wife and/or mother (preferably both).

First, the Court observed that when the (also male) doods who drafted Illinois' law regarding who gets to be a lawyer, they did not intend for it to apply to women. Nor could these men even envision such a creature as a female attorney (hence the gratuitous use of the "gender neutral" male pronoun in the statute). And furthermore, back then everyone just knew:

"That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth."

In his separate concurrence, Mister Justice Bradley chimed in to note that even though Myra Bradwell had the audacity to think that women were capable of occupying "any and every profession, occupation, or employment in civil life," he countered by observing that oh ho ho "[i]t certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the [women]." For, "[o]n the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman....The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it ["it"? WTF?!] for many of the occupations of civil life."

So, there you have it. The Supreme Court of the United States of America, in 1872, decided that it was in accordance with our Constitution to prohibit women from being lawyers and they also thought it was valid to make a circular appeal to tradition in their Very Important Manly Man Court Decision. Ah yes, women cannot be lawyers because they have never been lawyers and only men are lawyers. Deep thoughts.

I hope, if anything, this post has shed some light on how a court, especially the Supreme Court, can use its aura of authority to crank out any sort of decision that accords with tradition, their already-held political beliefs, and their "professional expertise."

Oh, that reminds me. If I'm not mistaken, this case is part of what I like to call America's Official Affirmative Action Program for Men in general, and male lawyers and judges in particular. Stay tuned for more fun cases mandating women's natural, divined, and legally-ordained inequality!

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