This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.”
Early in her career, Thomas reports, Allen sensed that women should be treated more akin to men. As a law student, she was embarrassed when male classmates stood aside in chivalrous gestures of “ladies first.” She also resented gender-based obstacles in the job market. In an interview, one law firm partner pointed to snowfall outside in explaining that he could never send a woman out in such conditions.
Through her practice, Allen sought to level the treatment of the sexes—at least in the law. She represented women’s suffrage groups in helping expand the franchise. She was also the lawyer for a group of “conductorettes” laid off from their railway when male colleagues returned home from World War I. (The women won a non-binding opinion from the National War Labor Board, which was promptly ignored.)
Once in the judiciary, Judge Allen seemingly aspired to demonstrate that a female judge could equal her male counterparts. Upon her election to the Cuyahoga County Common Pleas Court, she resisted attempts to change her case docket on account of sex. She declined to be assigned only family disputes, and eventually oversaw four murder trials—one of which led her to impose the death penalty.
On the Ohio Supreme Court, Allen continued to win over male colleagues. In one anecdote, she told her fellow justices fidgeting about in the conference room, “while I don’t smoke, myself, I shall be delighted if any of you will do so whenever he wishes.”
Those techniques met their greatest test on the Sixth Circuit, where Judge Allen found herself excluded from lunch outings at the University Club in Cincinnati, denied eye contact during conferences, and sharply criticized in the drafting process. Judge Allen quietly pressed on, working to earn her colleagues’ esteem and identifying with them. When asked how she made time for housework, she answered: “I don’t cook, or sew, or shop, for the simple reason that I haven’t the time or energy for these things any more than the men judges have.”
Per Thomas, the judge’s technique eventually made headway—for herself at least. Sixth Circuit colleague and future Supreme Court Justice Potter Stewart came to her for tutorials on patent law. (The Court of Appeals for the Federal Circuit had yet to be created, leaving the Sixth Circuit with a bounty of patent cases from Midwestern manufacturers.)
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
