Bradwell v. Illinois: When the Supreme Court denied legal work to women

On April 15, 1873, the Supreme Court decided in  Bradwell v. Illinois, striking down the Myra Bradwell’s challenge to the Supreme Court of Illinois’ refusal to grant her a license to practice law.

Myra Bradwell was a teacher, political activist, and the founder and publisher of Chicago Legal News, founded in 1868. Her husband, James, was a lawyer and judge and Myra began her formal legal training in his law offices, assisting with legal research and writing. Bradwell’s training helped her write several key state laws regarding the rights of women, notably the 1861 Married Women’s Property Act and the Earnings Act of 1869, both of which helped married women gained control over their property and finances. By 1872, Bradwell was Secretary of the Illinois Women’s Suffrage Association when the state legislature passed with her influence an anti-discrimination bill stating, “No person shall be precluded or debarred from any occupation, profession, or employment (except the military) on account of sex.”

Based on her qualifications, a Seventh Circuit judge in August 1869 recommended that the Illinois Supreme Court issue her a license to practice law. They denied the application on the basis on the basis that married women could not make contracts, a necessity for any lawyer. The state supreme court denied her application a second time on February 5, 1870, with Chief Justice Charles B. Lawrence stating 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.” She appealed the decision to the U.S. Supreme Court.

Wisconsin Senator Matthew Hale Carpenter, a famous attorney of the U.S. Supreme Court bar who was a family friend, argued on behalf of Bradwell. The Slaughterhouse Cases, decided the day before, narrowed the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause to the rights that existed solely from U.S. citizenship and which "owe their existence to the Federal government, its National character, its Constitution, or its laws"—for instance, "access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas.

In Slaughterhouse, Carpenter had represented the Crescent City Livestock Landing and Slaughterhouse Company, which had been granted a monopoly on all slaughterhouse business in New Orleans by the Reconstruction biracial Louisiana legislature in 1869. Carpenter argued the 14th Amendment was passed only to elevate African Americans and had no bearing on economic statutes passed by a state—thus, it did grant not significantly greater power to the federal government to review state actions and the means chosen to carry out their police powers, including the granting of monopolies.  In Bradwell’s case, Carpenter argued that under the “privileges or immunities” protected by Section 1 of the 14th Amendment, no class of people could be excluded from practicing the law. Carpenter saw his participation in both cases as being part of an effort to limit judicial review while not protecting states’ rights from federal encroachment.

But Justice Samuel Miller, writing for the majority and following his own Slaughterhouse majority opinion, denied that the right to practice law was a “privilege or immunity” of federal citizenship. States had the power to determine who could qualify for admission to the bar of its own courts, and the 14th Amendment did nothing to diminish that power. The Court was unwilling to question the reasonableness of such state decisions.

Justice Joseph Bradley had dissented the day before in Slaughterhouse, because he thought that the New Orleans law infringed upon the “freedom of contract” protected by the 14th Amendment. Yet in his concurring opinion in Bradwell, Bradley emphasized that “freedom of contract” was different among the sexes. There was no historic precedent that women had the right to engage in “any and every profession, occupation, or employment in civil life.” Instead, as Bradley said in an infamous passage, “The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

Of the four Slaughterhouse dissenters, only Chief Justice Salmon Chase dissented in both cases. According to legal historian Richard Aynes, Chase—a supporter of expanded women’s rights and suffrage as Governor of Ohio and Treasury Secretary—deemed the case important but was too ill to pen a dissent. He died a month later.

After the case, Bradwell made no further attempts to gain her law license. But others were inspired by her fight for employment equality, as Belva Lockwood—after being denied admission to the Supreme Court bar—successfully pushed for a federal anti-discrimination bill similar to the one passed in Illinois in 1879 and was admitted to the Supreme Court Bar in March 1879. A year later, in the case Kaiser v. Stickney, she became the first woman ever to argue before the court.

Further Reading:

Richard L. Aynes, “Bradwell v. Illinois: Chief Justice Chase’s Dissent and the “Sphere of Women’s Work,” Louisiana Law Review (1999), https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=https://en.wikipedia.org/&httpsredir=1&article=5767&context=lalrev

Nancy T. Gilliam, “A Professional Pioneer: Myra Bradwell’s Fight to Practice Law,” 5 Law and History Review 105 (Spring 1987), https://www.jstor.org/stable/743938?seq=1

Gwen Hoerr Jordan, “"Horror of a Woman": Myra Bradwell, the 14th Amendment, and the Gendered Origins of Sociological Jurisprudence,” 42 Akron Law Review 1201 (2015), https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1164&context=akronlawreview

Francis Olsen, “From False Paternalism to False Equality: Judicial Assaults on quality: Judicial Assaults on Feminist Community, Illinois 1869-1895,” 84 University of Michigan Law Review 1518 (1986), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2927&context=mlr

Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.