Blog

In this month's issue of the ABA Commission on Women in the Profession's Perspectives magazine, Stephanie Goldberg has an interesting piece on the difference Elena Kagan will have on the Court by virtue of her gender.  Acknowledging that seeing gender as a determinative factor in judicial decision-making is "prickly," Goldberg finds examples of how O'Connor and Ginsberg's gender influenced their jurisprudence.

Yet even [Ginsburg] conceded that her life experience as a woman may have helped educate her fellow justices to hold in Safford v. Redding (2009) that a strip search by school authorities of a 13-year old girl, suspected of having ibuprofen, violated her constitutional rights... "I think many of [the male justices] first thought of their own reaction. It came out in various questions. You change your clothes in the gym, what's the big deal?"

Goldberg then reviews the work of Jennifer Peresie, who surveyed over five hundred sex discrimination suits in the federal appeals courts, and found that panels with two women ruled in favor of plaintiffs in 43% of cases, compared to 35% with only one female judge on the panel, and 17% when there were only men.  What's so powerful about this data, is not just that women may view facts through a different lens, but that their view is persuasive to their male colleagues.

I recommend the full article, and for that matter, the full magazine, which comes free with a membership in the ABA.