Nine Old Men

In 1964, the book Gideon's Trumpet - about the 1963 Supreme Court decision that made it the law of the land that every defendant had the right to an attorney, whether or not they could afford one - was published. And as I read it, one thing stands out to me very vividly: the author's utter and absolute conviction that not only would there never be a woman Supreme Court Justice, there wouldn't even be women law clerks or even, probably, lawyers. I'm in Chapter 11 now, and every single time the author (Anthony Lewis, a two-time Pulitzer Prize winning columnist) refers to these worthies, even in the abstract, they are men.

And I don't mean the old "the masculine embraces the feminine" leading to "an American ... he" or "someone ... he". I mean men.

For instance, when talking in the abstract about the law clerks and how they're chosen and what they do, he writes:

"The law clerks ... are bright young men"

"As a practical matter, a young man who is there only briefly is unlikely to make any significant change (in the actual votes of a Justice)"

In describing the way the Court functions (not in this specific case, but in general) he writes:

"Genuine intellectual exchange among men of strong views is not always easy..."

"Because there are so many men involved..."

"Men who know their own fallibility may find it hard to bear the burden of final decision... Other men may not be bothered by judicial power..."

"Is it consistent with democracy to let nine men...make ultimate decisions...?"

All of these could easily have had "people"; the third would even read nicely with no noun at all (Those who ...Others...).

Then, when talking about how Fortas prepared for the case, he says

"There immediately got underway the extraordinary process by which a law firm digests a legal problem. Bright young men break it down into tiny components..."

And while, certainly, everybody at Arnold, Fortas and Porter in 1962 was a man, here he wasn't describing that firm in that year. He was describing the general process by which "a" law firm works. And he didn't say "bright young interns" or "bright young clerks" or "bright young legal students" or "bright young people" or "bright young legal minds" or even "bright youngsters". Bright young men.

And yet, when talking about people in general, such as petitioners to the court or the average American, he can write

A person with a federal claim...

Most thoughtful persons have concluded that there should be no such publication [of memoirs] at least until all participants in the events described have left the Court.

To even the best-informed person unfamiliar with the law...

As he entered the Supreme Court building that Monday morning ... [he] experienced the confusing change of emotions that any sensitive person feels in that curious place.

So it's not even as if "man" was his default, or only, choice.

No, it's clear to me - really quite startlingly clear - that it never crossed his mind that justices, lawyers, and law clerks were or could be other than men.

And that's only fifty years ago.