Very few in the legal profession know her name. She is often called “the first” woman judge.¹ A biography of her is entitled “The First Lady of the Law.”²

She was the first female jurist to serve on a high court. She was the first female jurist to serve on a federal appeals court. President Franklin Delano Roosevelt considered nominating her to the U.S. Supreme Court. Her name was Florence Ellinwood Allen. She should be a household name that every law student and lawyer knows.

Allen graduated Phi Beta Kappa from Western Reserve University in 1904.³ During college she displayed an independent streak, writing an editorial her senior year calling for the abolition of sororities as “undemocratic.”⁴ She then spent some time overseas in Berlin studying music, returning to Western Reserve to obtain a master’s degree in political science.⁵ It was there that one of her professors suggested she attend law school.⁶

When she entered Chicago Law School, she was the only women in a first-year class of 100 students.⁷ She recalled: “For a shy person it was terrifying to have to enter a classroom first while a hundred men stood aside.”⁸ She studied under the legendary Roscoe Pound in criminal law and was second in her class after the first quarter. However, she left Chicago to work for the New York League for the Protection of Immigrants and then later finished her legal studies at New York University.⁹ She excelled in her legal studies, finishing second in her class.¹⁰

Woman suffrage headquarters in Upper Euclid Avenue, Cleveland: At extreme right is Miss Belle Sherwin, president, National League of Women Voters; Judge Florence E. Allen is holding the flag. Source: Library of Congress

For a decade after law school, she devoted considerable energies to working for women’s suffrage, working under the likes of famed activist Carrie Chapman Catt. She later became an assistant prosecutor in Cuyahoga County, Ohio. After a few years, she was elected to the Court of Common Pleas. In 20 months she was the judge in more than 900 cases.¹¹ She even presided over the murder trial of Frank Motto. In 1922, she ran for a position on the Supreme Court of Ohio. After winning, she became the first female to serve on a state high court. In 1934, President Franklin Delano Roosevelt nominated her to serve on the U.S. Court of Appeals for the 6th Circuit. An FBI background report, infected with gender bias, reportedly was not in her favor.¹² However, the Senate unanimously confirmed her.¹³ While she received unanimous Senate support, some of her colleagues on the 6th Circuit were less than pleased. Her appointment apparently made one of her colleagues so upset he stayed in bed for two days.¹⁴

Roosevelt considered her for a Supreme Court appointment around the same time he unveiled his infamous Judicial Reorganization Plan of 1937, better known pejoratively as his court-packing plan. First Lady Eleanor Roosevelt was a strong supporter of Allen and favored her elevation to the high court.¹⁵ But, Roosevelt never nominated her.

Judge Allen’s name was floated as a possible Supreme Court nominee during later years as well, particularly during the Presidency of Harry Truman, but the glass ceiling was too high at that time. She served on the 6th Circuit in full capacity from 1934 until 1959. She continued to serve as a senior judge on the 6th Circuit until her full retirement in 1966. During her long federal judicial tenure, she distinguished herself. Among her more prominent opinions was one for a special three-judge federal district court in Tennessee Electric Power Co. v. Tennessee Valley Authority.¹⁶ The decision upheld the authority of the TVA. Allen herself acknowledged that the decision “attracted nation-wide attention.”¹⁷

She devoted considerable energies to speaking engagements nationally and internationally and wrote a book on the U.S. Constitution.¹⁸ A review published in the University of Chicago Law Review said her book on the Constitution was “a most important contribution to the literature of human liberty.”¹⁹

Allen cared deeply about her profession and her country. She writes beautifully in her memoir in words that still ring true today:

A great public service is demanded of lawyers and laymen today. Unless lawyers inspire the coming generation with a conception of the ethical basis of law, our precious freedom built up through the centuries will inevitably be destroyed.²⁰

Judge Florence Allen devoted her life to public service and the law. She should be remembered as much as the judicial legends for whom she paved the way.

David L. Hudson Jr. is an associate professor of law at Belmont University College of Law and teaches torts, constitutional law, first amendment law and the bar exam workshop. For 17 years, he was an attorney and scholar at the First Amendment Center in Nashville. Hudson earned his undergraduate degree from Duke University and his law degree from Vanderbilt Law School.

NOTES

1. Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 Wm. & Mary J. Race, Gender & Soc. Just. 293, 293 (2021).
2. Jeanette E. Tuve, The First Lady of the Law: Florence Ellinwood Allen (1984).
3. Ruth Bader Ginsburg, Laura W. Brill, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change Carter Wrought, 64 Fordham L. Rev. 281, 282 (1995).
4. Florence Allen, To Do Justly, The Press of Western Reserve University (1965) at 20.
5. Mary L. Clark, One Man’s Token is Another Woman’s Breakthrough: The Appointment of the First Women Federal Judges, 49 Villanova L. Rev. 487, 494 (2004).
6. Ginsburg, Brill at 282.
7. Allen at 24.
8. Allen at 24.
9. Allen at 24-25.
10. Allen at 28.
11. Ginsburg, Brill, at 281, 282.
12. Clark at 499.
13. Renee Knake Jefferson, Hannah Brenner Johnson, Shortlisted: Women in the Shadows of the Supreme Court, New York University Press (2020) at 23.
14. Jefferson, Johnson at 24.
15. Jefferson, Johnson at 29.
16. 21 F.Supp. 947 (E.D. Tenn. 1938).
17. Allen at 105.
18. Florence Allen, This Constitution of Ours, G.P. Putnam & Sons (1940).
19. Thomas Clifford Billig. 7 Univ. Chic. L. Rev. 753, 754 (1940).
20. Allen, To Do Justly, at 152.