A PLACE FOR WOMEN
This talk centers on my current workplace, the United States Supreme Court, and on women who figured in its history. I will speak of the way things were, and the way things are becoming. As a starter, I will pose a question Justice O'Connor and I are sometimes asked. Does it make any difference that you are there? Do women judges decide cases differently by virtue of being women? As a first response, I have several times quoted, as has Justice O'Connor, the words of Minnesota Supreme Court Justice Jeanne Coyne. In her experience, Justice Coyne said, "a wise old man and a wise old woman reach the same conclusion."
So they do. But it is also true, I hasten to add, that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what a fine jurist, the late Alvin B. Rubin of Louisiana, fittingly called "a distinctive medley of views influenced by differences in biology, cultural impact and life experience." Judge Rubin wrote those words in a mid-1970s judicial decision in a case called Healy v. Louisiana, a case that spelled the beginning of the end of the once prevalent exclusion or exemption of women from jury service. (I had the good fortune to represent the plaintiffs in that case. We successfully urged that jury duty has a double edge. It is both a right and obligation of all citizens -- women no less than men.) A system of justice (like a university) is the richer for the diversity of background and experience of its participants. It is the poorer, in terms of evaluating what is at stake and the impact of its judgments, if its members -- its lawyers, jurors, and jud ges - are all cast from the same mold. So yes, in words Justice O'Connor spoke in 1996, in her surprise appearance one night as Queen Isabel in the D.C. Shakespeare Theatre's production of Henry V: "Haply a woman's voice may do some good."
A bolder prediction was made close to a century and a half ago. The prophet was Sarah Grimke, great feminist and anti-slavery lecturer from South Carolina. On a December 1853 visit to Washington, D.C., Sarah Grimke wrote this to a friend:
"Yesterday, visited the Capitol, went into the Supreme Court, not in session[.] [W]as invited to sit in the Chief Justice's seat. As I took the place, I involuntarily exclaimed: 'Who knows, but this chair may one day be occupied by a woman.' The brethren laughed heartily[.] [N]evertheless, it may be a true prophecy."
So Sarah Grimke's letter concluded. Her prophecy, I believe, will indeed prove true. Women, I fully expect, will -- even in my lifetime come to serve the cause of Justice in numbers fully reflective of their talent.
I will recall in these remarks some of the unknown and the known who came before, and made it easier for Justice O'Connor and me. I will speak first of women's affiliation with the Supreme Court from the start, not as Justices, given the way things were, but as the Justices companions in life, their wives. Next, I will tell you of the first women to serve as law clerks in Justices' chambers, then of two women who might have graced the Supreme Court's bench, had time worked in their favor. Finally, I will return to today and my hope for the future.
The wives whose stories I will relate are Sarah Story, wife of Joseph Story, who served on the Court from 1811 until 1845, and Malvina Harlan, wife of the first Justice John Harlan, who served from 1877 until 1911.
Sarah Story broke a tradition Chief Justice Marshall held dear, the boarding-house mode of living while the Court sat in the Federal City. It was Marshall's idea that the Justices should …