I began writing about Florence Allen, the first woman judge, because she was literally staring me in the face, hanging in a portrait on the wall in the classroom where I taught. My dean casually asked me, “you know Florence Allen, right?” I did not.
A Biographical Lens
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| Judge Florence Allen, Ohio Supreme Court c.1923 |
A quick web search told me the basics. The first woman federal appellate judge, appointed by FDR in 1934. The first woman in the nation elected to any state supreme court, Ohio in 1922 and re-elected in 1928. Before that the first woman judge elected to any general jurisdiction court, elected to Cleveland’s Cuyahoga County Court of Common Pleas in 1920, immediately after the ratification of the Nineteenth Amendment. The first woman shortlisted to the U.S. Supreme Court, considered twelve times by three presidents from both parties—and it looked like she had the nod three times between 1938 and 1949. I wrote a law review article recovering these basics, The Jurisprudence of the First Woman Judge, in the William & Mary Journal of Race, Gender, & Social Justice. There had been women in quasi-judicial administrative positions before Allen, but she was the first elected to a general trial court and was widely known in her time “the first woman judge.”
Judge Allen’s story, however, was more than the story of one woman. It was the story of women’s integration and transformation of the law more broadly. Thus, I thought a book length treatment was needed. For Allen was among the first one percent of women in the law at every stage: as law students, lawyers, trial attorneys, prosecutors, congressional candidate, as well as judge.
And as women entered these halls of justice, they brought with them transformative ideas of public law, fair process, and ethical adjudication. As external players to partisan politics, women activists had learned how to use alternative systems of lobbying, administration, and influence to achieve policy goals and correct injustices. They brought with them reform notions to restore the rule of law, ethical decisionmaking, and a democratic legal system accountable to all, not just the corporate and private business interests. Allen was at the forefront of this transformation, and her story tracks these changes demanding more responsive courts.
On the Research Trail
The research process was longer than I had hoped. I thought I had learned with my first scholarly monograph, ECS, how to better collect, scan, organize, index, and manage the archival process. But this second book project brought similar hurdles. Changing technology uncoding the coded. A pandemic, fire, and political machinations shutting down archives. Research assistants losing and erasing documents before they were backed up. Heavy teaching loads. Restarting writing each summer, and reinventing the wheel. Yet the story continued to drive me.
The research included over five thousand documents primarily at the Western Reserve Historical Archives in Cleveland and the Library of Congress. Digitization and the LOC as well as other libraries revolutionized the process. Even in the final days of proofreading and edits, the explosion of archival access to local papers with sites like Newspapers.com and NewspaperArchive provide rich new sources from sources in real time.
Reading Allen’s 800 federal and state opinions was also a challenge. First, just finding them was a battle, as many in this historical time frame were not readily available or did not indicate the writing judge in databases like Westlaw or Lexis. Frustrated, I finally went old school, asking the wonderful librarians in the Akron Law Library to help me find the dusty volumes of the reporters in the deep storage basement of the library. Lo and behold, I discovered in these a beautiful index at the front of each book listing opinions by writing judge, easily finding all Allen’s decisions including the per curiams. I also discovered in these indices that Judge Allen was always listed at the end of all seven judges, despite the alphabet placing her first and despite rising seniority over the years. It seems the woman judge, or “Miss” rather than “Judge,” as the volumes sometimes labeled her, could not be first.
The second research challenge from the cases was placing them in legal and historical context. Allen’s key years on the bench, 1920 to 1959, were among the least familiar to me. The least taught in Con Law courses, the least used in gender analysis, and often considered mere stopping points on the way to further developments. So learning the U.S. Supreme Court cases from this period, and the labor history, and the full legal history of the 1912 progressive Ohio Constitution were all required reading. It was fascinating—among the most generative and engaging projects of my career. There were rabbit holes galore as detours took me into hours of esoteric web searching. Producing a list of ancillary interests--enough to produce a list of six more books I’d like to write next.
Writing Women’s Legal History
The process of writing The First Woman Judge reminded me of some of the catches to writing women’s history. Writing women’s history is different because the sources may be difficult to find, less evidence is preserved by family members or institutions, women change their name at marriage, and women are often found externally to legal systems. See Oxford Legal History Bibliographies. Newspapers, organizations, and private collections offer potential gold mines, but do not offer easy access or indexation. Books about women’s history are often out of print, with the burst of scholarship in the early 1980s removed from shelves.
Allen’s story did not present as many of these methodological problems because she was unmarried, and was an internal institutional actor, who went to great lengths to preserve her own papers. Yet she culled these papers to omit much of the personal or political backstory and family members got rid of the rest. Even Allen’s opinions, had to be understood in gendered context as the chief justice refused to assign her important cases and male colleagues refused to engage with her in conference or join her opinions. The historical record thus requires gendered, as well as legal and historical, contextualization.
--Tracy Thomas
