By Cara Tuttle Bell • December 11, 2011•Writers in Residence
We are fortunate to have more women on the Supreme Court than at any time previous in history. While I am thrilled just to see female faces in the annual group picture, I am far more pleased with the gifts they bring, case after case. It has been clear since Justice Sandra Day O’Connor joined the Court that adding women does, in fact, change everything. The Court not only looked different, it sounded different. Symbolic and substantive representation are not mutually exclusive, as most women and minorities understand. The work is not done, although our modern-day Supreme Court is more diverse than ever. This diversity is crucial because the Court’s power lies in its legitimacy. It relies upon the power of persuasion to convince the nation in its rule of law. When a government body includes me, then I can accept being subject to it. These are the principles of our democratic republic. This is Founding Fathers’ language, so it is really quite unfathomable why it has taken us so long to embody our own ideals – and we’re not quite there yet.
Having only the older white male demographic represented by the Court’s nine older white men, nearly all of whom the American public believed to be wise legal scholars, rarely prompted a raised brow. How do you explain that? Tradition? Sure, it’s traditional for men to fill these roles because of prior social and legal barriers to women attending law school and practicing law – the kind of gender-biased practices that happen in a patriarchal society. History? Yes, if we admit it is a racist and sexist history. Then, you get an all-white, all-male Supreme Court, which we had until 1981, with the appointment of Sandra Day O’Connor.
Since 1981, we all, male and female, have benefited from the contributions of the wise women on the Supreme Court. Justice Ruth Bader Ginsburg, the eldest on the current Court, at 78, has long called for more women on the Court. Ginsburg explained, "Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception." Her contributions are the most well-known, as she had already established herself as a champion of women’s and civil rights before being appointed to the Court in 1993 by President Clinton. Ginsburg served as director of the Women’s Rights Project of the American Civil Liberties Union during the Seventies. Through the ACLU, she argued cases before the Supreme Court that established constitutional protections against sex discrimination. Ginsburg argued six cases before the Court, and won five.
In her tenure on the Court, during which it has grown more conservative through Bush-era appointments, Ginsburg has become more vocal in her dissents, particularly in gender discrimination cases, adopting the unusual practice of reading a few of them aloud from the bench. The act of reading a dissent aloud occurs only a few times a year, when a justice feels strongly about the outcome in the case that the majority has gotten the decision profoundly wrong. In Ginsburg’s dissents, she seems to be calling out the Roberts Court for playing politics instead of interpreting law.
She was a bold voice for women as the lone woman justice on the Court, an advocate that women, half of our citizenry, lacked before her appointment. Outraged by the Court’s Ledbetter decision, one of which prompted her to read her dissent aloud, Ginsburg called on Congress to reverse the Court, which it did, through the Lily Ledbetter Fair Pay Act of 2009 that became the first bill President Obama signed upon taking office.
Also in 2009, Ginsburg further demonstrated the crucial role of female justices in addressing the galling blindspots of male privilege. The male justices showed a surprising callousness to and ignorance of issues of female bodily privacy, exposure, and objectification in the 2009 Arizona strip search case. Ginsburg argued forcefully with her male colleagues throughout the case, which gained some notoriety as a result of the many insensitive comments made during oral arguments by the male justices who couldn’t grasp the humiliation suffered by the defendant, a thirteen-year-old girl The school officials had her strip to her underwear and shake out her bra and panties in order to prove that she did not have ibuprofen. Then, the innocent honor student was left sitting outside the principal’s office for two hours. The officials did not send her back to class, nor did they contact her parents. Justice Bryer had asked, “Why is this a major thing, to say, ‘Strip down to your underclothes,’ which is what children do when they change for gym?” Justice Ginsburg reminded Bryer that Ms. Redding wasn’t stripping down to her underwear, but instead shaking her underwear out, and in the process certainly exposing her breasts and pelvis. Thankfully, Ginsburg’s interjections and understanding of the degrading nature of this type of search made it into the Court’s opinion, authored by Justice Souter. He wrote, “Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be.”
Ginsburg called the addition of the newest, youngest justice, Elena Kagan, “one of the most exhilirating developments.” Fifty-one-year-old Kagan, former Solicitor General and former Dean of Harvard Law School, replaced Justice John Paul Stevens. Stevens said since joining the Court she has largely voted the way he would have, with the exception of just a few cases. But it’s her skills that have prompted the most acclaim. After her first year, Ginsburg remarked of Kagan, “She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions.” Furthermore, Lisa Blatt, who heads up Arnold & Porter’s appellate and Supreme Court practice, points out that Kagan has repeatedly used the words imagine and you and writes directly to the reader. Blatt notes that this is a technique that instantly “draws the audience into the process of decision-making.”
Indeed, Kagan appears refreshingly reasonable. Dahlia Lithwich, author of “Her Honor,” a lengthy article about Kagan in New York Magazine writes, “She’s interested in working through the argument—both sides fully credited—and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview (Thomas, by contrast, devoted an entire dissent last year to a twenty-page meditation on the joys of strict Colonial parenting). Kagan invites readers to substitute their judgment for her own. [Her technique of saying] ‘Here are the facts; what would you do?’ is not merely the sign of a mind devoted to the process of legal logic, it’s an act of making the lone justice less important than the community. At oral argument in a case this past October about a death-row inmate who missed a critical filing deadline because a letter detailing that deadline was sent to his lawyers (who’d by that time left the firm), Kagan deployed the same technique. As she pressed Alabama’s solicitor general on why nobody in the court clerk’s office saw fit to tell the inmate the letter had been returned, she asked, ‘So you send off this letter, and you get it back from the principal attorneys, and you ask yourself: ‘Huh, should I do anything now?’ What would you say?’ to which the solicitor general was forced to concede in response, ‘Your honor, I suspect that in those circumstances I might well personally do something else.’ Jeffrey Fisher, who co-directs the Supreme Court clinic at Stanford Law School, characterizes Kagan as ‘more than just the best doctrine cruncher. She has something that comes from a higher—almost subconscious—level: an insight into common sense.’”
For these qualities and others, USA Today writer Joan Biskupic called Kagan half of a new “dynamic duo” on the Court. The other half is Justice Sonia Sotomayor, the newest member of the Court. Sotomayor, who joined the Court in 2009, has already established herself as the new voice of the liberal wing through her public speaking appearances around the country. In his June NPR article on Sotomayor, David Fontana writes, “Sotomayor has … identified the ways in which our legal system still reflects biases against various historically disadvantaged groups. During the same visit to Kansas State, Sotomayor remarked on persistent ‘structural problems’ that prevent the achievement of full equality for many people. In a public interview during a visit to Northwestern Law School, Sotomayor said some of the questions she faced during her confirmation hearings were symptomatic of lingering gender bias. And, at the University of Chicago Law School, she said, ‘People have views of me and expectations of me that are based on stereotypes.’ Moreoever, she exposes those stereotypes as they affect the decisions of other members of the Court. For example, she critiques Chief Justice Roberts's views on race and the law as ‘too simplistic.’” Given that non-Hispanic whites are projected to make up only 46% of the U.S. population by 2050, simplistic views on race simply won’t cut it. They have no place on the nation’s highest court no matter what the numbers. This is why proportional representation is crucial. Even Supreme Court Justices are human, and we all operate out of the obscured vision of our own gendered and raced perspective.
In confirmation hearings, Justice Sotomayor took a lot of heat for her “wise Latina” comment, but the outrage was misplaced. Don’t we want our justices to have confidence? Doesn’t it make a difference (and just plain sense) to have the Latina/o population represented in all branches of government? With diverse representation the Court gains acuity on issues heretofore ignored. A simple example of how so is Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term “undocumented immigrant,” instead of “illegal immigrant,” which has been used in dozens of prior opinions.
Of course, the femaleness of a justice in and of itself offers no guarantee that the justice will prove a stronger advocate for women than would a male, but it does offer experience to which male justices as male may not have access. However, the evidence that these women’s actions on the Court have been beneficial to women is indisputable. The presence of women on the Court has clearly demonstrated that female representation brings a heightened understanding of the way gender shapes all aspects of experience and is not invisible under the law. Insight, awareness, sensitivity, and compassion for those in our nation who do not fit the default status of white and male—these are the gifts our wise women on the Court bring to us. They also bring the legal acumen, prodigious intelligence, and exceptional vitas required of all Supreme Court Justices. These qualifications in tandem ensure that the Court’s mission of serving as “the final arbiter of the law and guardian of constitutional liberties” is tendered to all citizens. Our “melting pot” metaphor should not be applied to only the population but should extend to its legislative bodies as well. In other words, members of the fairer sex are crucial to making a fairer court.