An extraordinary woman who could teach us all a lot

April 4th, 2024 by Tom Lynch

Yesterday, Manhattan Judge Juan M. Merchan rejected Donald Trump’s bid to delay his April 15 hush money criminal trial until the Supreme Court rules on presidential immunity claims he raised. Consequently, the wheels of justice continue to grind slowly, but exceedingly fine, and the trial will begin in eleven days.

And what of Trump’s claims of immunity? Writing in The Conversation this morning, Professor Wayne Unger, who teaches constitutional law at Quinnipiac University, said, “If a student of mine had submitted a brief making the arguments that Trump and his lawyers assert in their Supreme Court filing, I would have given them an F.”

Professor Unger writes that, in an attempt to cozy up to Supreme Court Justices, especially the ones he nominated, the Trump Brief cites a 2009 law review article by Judge Brett Kavanaugh, and claims it showed Kavanaugh supported his position. Kavanaugh wrote, “[A] President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” and Trump relies on that sentence as evidence of support for the position that a president requires absolute immunity.

But according to Unger, the article concludes the exact opposite. According to Unger:

But even a cursory reading of Kavanaugh’s article reveals that Kavanaugh argued only for a deferral of a criminal prosecution until after a president leaves office.

As Kavanaugh states, “The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”

And that is exactly what is happening right now with Trump out of office.

It would be interesting to know Justice Kavanaugh’s opinion of Trump’s lawyers trying to mislead the Court by referencing a law review article of his.

The legal maneuvering of Donald Trump, the born-on-third-base, but-everyone-knows-I-hit-a-triple man, made me think of something that happened on this date 151 years ago in Philadelphia, Pennsylvania. For that was the day in 1871 that 33-year-old Carrie Burnham, a woman with more legal acuity in her little finger than all of Donald Trump’s high-priced lawyers put together, finished her masterful two-day, 90-page argument before the Pennsylvania Supreme Court advocating that election officials in Philadelphia’s Ward 14 had illegally refused to accept her ballot.

A lower court had first ruled against her suit by claiming the Pennsylvania Constitution only allowed “freemen” the right to vote. This was its entire and only position. The court had written:

Carrie Burnham’s entire case rested on the meaning of the word, freeman. 

In 90 pages of legal erudition, rarely, if ever, seen in that, or any other court, she eviscerated the lower court’s position, beginning with the Teutonic origin of the word—frei mann. Citing Greek and Roman history, the Magna Carta, a wealth of English Common Law, the U.S. Constitution (particularly the 14th Amendment), as well as the Constitutions and court cases of various American states (particularly New Jersey, where women had the right to vote from 1790 until 1807), Burnham conclusively proved the word freeman was always intended to be generic, referring to both genders.

Well, as you’d expect, the lady lost her case. Although, two of the court’s judges asked her for copies of her brief, and one sent it along to Harvard Law School, where it continues to be taught to this day.

But Carrie Burnham was much more than is told in this story.

She wasn’t even a lawyer when she appealed to the Pennsylvania Supreme Court. She was able to do that, because the state had a law that allowed supplicants to plead their own cases.

She studied law privately, because no law school would admit her. When she requested taking the bar exam in 1873 and 1874, she was denied. After a decade of lobbying, however, she became the first woman admitted to Penn’s law school, in 1881. After graduating, Carrie Burnham was the first female lawyer in the city of Philadelphia, and first woman admitted to the Bar in the Commonwealth of Pennsylvania.

Today, a residence hall at Penn is named for her.

Extraordinarily, at a time when few women worked outside the home, she managed to become not only a lawyer, but, after an extended legal battle, also a medical doctor, making her an early and dynamic leader in the struggle for women’s rights in America.

She got her medical degree from New York’s Bellevue Hospital, one of only 30 women in a class of 500.

The women faced harassment from the men, including at least one professor who “repeatedly exposed” patients, both male and female, in front of the women, in hopes of shocking them into quitting the program. After these classes, the male students would line the hallways, forcing the women to walk an intimidating gauntlet to leave the building. But, she wrote, “[W]e continued our studies without noticing apparently any of the insults heaped upon us.”

She earned her degree of Doctor of Medicine and worked as an assistant physician at a medical institute in Boston. There she helped a male doctor prepare a book on physiology, but received no credit when it was published.

She continued to practice law for 21 years after her admittance to the Bar, and died in 1909.

Her 1871 argument in support of her right to vote apparently alarmed some men, because the next year, a state convention amended Pennsylvania’s constitution to say that only “every white male citizen” could vote.

That is praise, indeed.