Women in Law

“Sixty years ago, Ruth Bader Ginsburg applied to be Supreme Court Clerk. She’d studied at two of [our] finest law schools and had ringing recommendations. But because she was a woman she was rejected. Ten years later, she sent her first brief to the Supreme Court- which led it to strike down a state law based on gender discrimination for the first time. And then, for nearly three decades, as the second woman ever to sit on the highest court in the land, she was a warrior for gender equality – someone who believed that equal justice under law only had meaning if it applied to every single American…”

One would be forgiven for assuming that a woman wrote this tribute to the late Ruth Bader Ginsburg. It is in fact by Barack Obama. It is perhaps apt that as the first American President of colour, he could relate to Justice Ginsburg on several levels, including that of being a lawyer.

Tributes to Ruth Bader Ginsburg’s Legacy

Justice Ginsburg’s work has influenced and inspired many women and men. Her legacy cannot be underestimated. Recent tributes include Sheryl Sandberg, who said:

“She was first in her class and she couldn’t find a job. So she did what brilliant, ambitious women have always done when the doors of power slammed in their faces: she found another way. She built a world-changing career fighting for women’s legal equality one case at a time, taking apart systemic gender discrimination piece by piece.”

Hillary Clinton, another woman who broke barriers in her early career and more recently with her presidential bid, also paid tribute to Ginsburg:

“Justice Ginsburg paved the way for so many women, including me. There will never be another like her.”

Ruth Bader Ginsburg’s Legal Journey

Ginsburg was born on March 15, 1933. She grew up in a low-income, working-class neighbourhood in Brooklyn to Jewish parents. Ginsburg’s mother, Celia, was of great intellect but her education was cut short and she worked in a garment factory. Celia was a major influence in her life. Perhaps this early childhood memory was what fuelled much of Ginsburg’s work throughout her career in furtherance of women’s rights.

Ginsburg was only the second female Supreme Court justice and a hugely significant one at that, who was a champion of gender equality.

Perhaps even more significant than her considerable achievements during her tenure as a Supreme Court Justice (which commenced in 1993 under the Clinton administration and continued for nearly three decades) was the work she did as a lawyer before ascending to the Supreme Court. She changed the course of American law for gender equality and left a sweeping legal legacy.

Ruth Bader Ginsburg and Thurgood Marshall: Two Role Models

When President Bill Clinton nominated Ginsburg to the Supreme Court, he compared her legal work on behalf of women to the work of Thurgood Marshall on behalf of African Americans. Thurgood Marshall was an American lawyer and civil rights activist who also served as an Associate Justice and who argued the landmark case (before his appointment as justice) of Brown v. Board of Education of Topeka 347 U.S. 483 (1954). This case outlawed segregation in schools.

A comparison of Ruth Bader Ginsburg with Thurgood Marshall shows that social change comes not just from elections and demonstrations (as important as these are) but also from battles fought in court. The landmark Brown case was arrived at by decades of civil rights cases argued by Thurgood Marshall as part of his involvement in the NAACP Legal Defence Fund. Marshall went on to establish the LDF as a separate entity from the NAACP.

As Marshall had done for civil rights as an NAACP attorney, Ginsburg did likewise to lead the American Civil Liberties Union’s (ACLU) Women’s Rights Project to win historic court victories for gender equity from 1972-1980.
Marshall was noted for his ‘go slow’ approach to establishing more civil rights protections to African-Americans after founding the NAACP ‘ Legal Defense Fund in the 1940’s. This ‘building blocks’ approach, noted by Ginsburg of Marshall’s work, was what led to the court’s unanimous ruling in the Brown case. Ginsburg emulated this approach.

The parallels between Marshall and Ginsburg don’t only hold true for their legal careers, but also apply to their time as students.

Ginsburg who couldn’t secure a clerkship or law firm position despite having a top ranked degree, went on to co-found the Women’s Rights Project at the ACLU and then ascend the Supreme court after 13 years of being a court lawyer.
Similarly, Thurgood Marshall was denied admission to his home state law school in Maryland on the basis of race. Marshall went on to serve on the federal appeals court in New York before becoming the nation’s first black solicitor general and thereafter being nominated to the Supreme Court by President Lindon Johnson in 1967.

Professor Jonathan Entin clerked for Ginsburg when she was an appeals court judge and has written about the comparison between Ginsburg and Marshall in their work against gender and racial discrimination respectively. He notes that when Ginsburg began her work in the 1960’s she faced more ‘daunting’ prospects than Marshall in terms of legal precedent. When Marshall began his work challenging racial segregation in the 1930’s, the Supreme Court had already rejected some forms of racial discrimination (for example a Supreme Court ruling in 1914 had stated that denial of first class accommodation on trains to blacks violated the Fourteenth Amendment (McCabe v. Atchison, T & S.F.Ry 235 U.S. 151, 161-62 (1914).

Ruth Bader Ginsburg’s Work on Gender Discrimination

However, insofar as gender discrimination, the courts were still behind the times. Even in 1961 the Supreme Court, under Chief Justice Earl Warren, unanimously upheld the constitutionality of a jury selection system in Florida that discriminated against women on the grounds that “women are at the center of home and family life.” The observation reflected dominant social values at the time.

Perhaps somewhat surprisingly for someone who will be remembered as a warrior for gender equality, some of Justice Ginsburg’s most notable cases involved sex discrimination against men. Her first case in 1974, although unsuccessful, showed her willingness to work on behalf of men challenging gender discrimination. In this case a Florida widower asked for a property tax exemption that state law only allowed to widows. Ginsburg argued that rigid attitudes about sex roles could harm everyone.

Ginsburg sometimes said that one of her favourite cases as a lawyer involved a man whose wife died in childbirth, leaving him alone to care for their newborn son. In Weinberger v. Weisenfeld 420 U.S. 636 (1975)
Ginsburg convinced the Supreme Court that the section of the Social Security Act that denied fathers benefits because of their sex was unconstitutional. She won the case unanimously.

Some 20 years after she won his case, Wiesenfeld subsequently testified at her confirmation hearing to the Supreme Court in 1993. Mr Weisenfeld recently commented on his long standing friendship with Ginsburg and the case she won for him saying that ‘[we] found out three justices discussed the case before they even heard it. They were discussing how disgusting it was that a male wanted to stay home and take care of a child.’

Ruth Bader Ginsburg’s Work on Challenging Gender Stereotypes

Ginsburg wanted to shake up preconceived notions of the stereotypical gender positions in a family unit. In retrospect, this was decades ahead of her time.

It is interesting that she has inspired not just women but men in re-evaluating what the family unit should look like. One of Ginsburg’s clerk’s, Ryan Park, wrote a piece in The Atlantic Monthly, praising his former boss for inspiring him to become a stay-at-home father after completing his clerkship. He quoted her in saying that “gender lines in the law are bad for everyone: bad for women, bad for men, and bad for children”

I find this quote particularly interesting and inspiring as it shows the considered view that Ginsburg always took: thinking more laterally than simply the case she was dealing with at the time. The forethought that a child’s view of their parents is as important in shaping their own thought processes as how their parents view one another’s role is really a very holistic one. Ginsburg didn’t just take this view as a bystander, her own marriage was very much modelled on equal parenting- something, which at the time she was first practising law, was the exception, not the rule.

Latterly as a Supreme Court Justice, Ginsburg was famous more for her dissenting opinions than her majority opinions. She may have served as a more moderate liberal influence in a Conservative court during her tenure as a Justice, but the changes she championed as a young lawyer for gender equality were now there, enshrined in law.

Ginsberg’s comparison to Thurgood Marshall is both timeless and timely. Both fought for the marginalised in society. Ginsberg made it her life’s work to force the law to acknowledge and respect those who had not been heard and to enshrine such recognition in law.

In Ruth Bader Ginsburg’s own words “Real Change, enduring change, happens one step at a time”.

Women in Law

The judiciary was once a male-only bastion. Times have thankfully changed and with that, the female presence in the Scottish (and indeed U.K. judiciary) has markedly increased. Obelisk consultant Nicola Evans explores the history and progress of women in the judiciary.

In times gone by, access to the legal profession was governed by three factors: Gender, social class and wealth.

In Scotland, 1901, Miss Margaret Howie Strang Hall petitioned the court asking to be admitted as a member of the then-termed Incorporated Society of Law Agents. The courts refused, referring to the Romans refusal of allowing women to act at prosecutors. It was not until 20 years later that Miss Madge Easton Anderson became the first woman solicitor in Scotland and a further two years until Miss Margaret Kidd became the first woman advocate. Incredibly, Miss Kidd remained the only female advocate until 1948.

Judge Selection Process | Overdue Overhauls

Both England and Scotland have, relatively recently, had a considerable overhaul of the selection process for judges. Judicial selection is now much more transparent. In Scotland, the Judicial Appointments Board was introduced in 2002 and as its website states it was designed ‘to bring transparency to the selection process and to build a system in which the public, the profession and the politicians can have trust and confidence.’
In England, the Constitutional Reform Act 2005 established the Judicial Appointments Commission, which is now responsible for appointing judges. The 2005 Act specifically states that appointments must be made solely on merit.

However, the U.K. still has one of the lowest proportions of female judges on its benches, according to a report by the Council of Europe. If we take a closer look, we see the Scottish legal system continues to struggle with equality in terms of appointments. As of 2016, there were only 125 women working as advocates (who represent clients in the higher courts) out of 462 people who are members of the Faculty of Advocates.

Of Scotland’s 113 QCs, only 21 are female. Further, of the 31 judges in post only nine are female. Europe-wide, systems with the lowest percentage of women among professional judges were Azerbaijan (11%), Armenia (23%), Northern Ireland (23%), Scotland (23%), England & Wales (30%) and Ireland (33%), with an overall average of 51% in Europe.

Female Judiciary Role Models

There are several inspirational women of note in the judiciary. In England, Lady Hale was appointed Deputy President of The Supreme Court in June 2013. In January 2004, Lady Hale became the United Kingdom’s first woman Lord of Appeal in Ordinary after a varied career as an academic lawyer, law reformer, and judge. In October 2009 she became the first (and remains the only) woman Justice of The Supreme Court. As such, Lady Hale is the most senior female judge in the United Kingdom.

Lady Dorrian QC was appointed to Scotland’s second highest judicial post as Lord Justice Clerk in 2016. This appointment made Scottish judicial history as no woman has served at this level prior to this. Lady Dorrian, a graduate of the University of Aberdeen, was admitted to Faculty of Advocates in 1981 and served as Advocate Depute – the first woman to hold the position – between 1988 and 1991, and became a QC in 1994.

Lady Hale is a regular speaker about issues such as feminism, equality and human rights – and has notably been happy to be open about the ‘imposter syndrome’ that she has experienced. This characteristic affects more women than men and is the feeling that despite academic and professional success the person will be found out to be a fraud. Many studies have looked at this and found it to be a natural symptom of gaining expertise.

Success for Women in the Judiciary

Lady Dorrian has referred to only a modest amount of sexism in own her career – and that was largely in the sense that it was simply less familiar to have women appearing in court and conducting cases. She does not attribute her success to having a particularly pioneering attitude, but simply to working hard and taking opportunities that seemed sensible.

It is interesting to note that both Lady Hale and Lady Dorrian almost seem to downplay their respective success in the profession: a characteristic that people who ascend very hierarchical institutions often exhibit. Sheryl Sandberg’s bestselling book Lean In: Women, Work and the Will to Lead looks at this tendency and unsurprisingly, many of the case studies are female.

Family-Friendliness | the Bar vs Private Practice

Although not necessarily an easy option, the Bar has been considered a more ‘family friendly’ career option than private practice. Roisin Higgins QC, commented in the Scotsman newspaper that far from being a hostile environment to female advocates, there is the suggestion that for women hoping to combine a legal career with family, advocacy might offer the most family friendly path.

Remaining Challenges for Women in the Judiciary

Lady Dorrian has pointed out the real ‘challenges’ facing the future of the profession in relation to its composition, access to it and progression within it. In a recent conference, ‘Equality means Business’ in Edinburgh in May 2017, Lady Dorrian highlighted that the legal profession as a whole should be representative of the society which it serves. Without this diversity, the profession runs the risk of not being able to offer access to justice for a wide range of practice areas (often the poorly funded areas) or for a wide client base. To be respected, the legal profession has to reflect the society it represents.

Accordingly the benefits of putting equality and diversity as the focus of the profession, she points out, isn’t just about doing the right thing but is enshrined in legislation, putting duties of equality on the shoulders of employers and public authorities.

The profession should take heed and retain talent by constantly seeking to ensure it is nurtured in the correct way.

Nicola Evans has a background in commercial law having worked  in-house for an international company and also having lectured in law. Nicola works as a Consultant for Obelisk Support, specialising in commercial law and providing remote, flexible services.