Female Supreme Court Justices Can Change the Conversation

A day after U.S. Supreme Court Justice Ruth Bader Ginsburg died at age 87 of pancreatic cancer, President Donald Trump promised attendees at a rally in North Carolina that his nominee to fill her seat would be a woman.

A week later, he announced her: Amy Coney Barrett, a 48-year-old conservative and circuit judge on the U.S. Court of Appeals for the 7th Circuit.

Ginsburg wanted more women on the Supreme Court. In a talk at Georgetown University in 2015, she said she was sometimes asked how many female justices would be enough to satisfy her.

“When there are nine,” she replied, which would have meant an all-female Supreme Court. In explanation, she noted that no one questioned it when nine men were on the court.

Her famous answer has become a call to arms, emblazoned across T-shirts and scrawled onto the sidewalk in front of the Supreme Court in an impromptu tribute after her death.

Impact on the court

Why is it important to have women on the Supreme Court?

Legal scholars cite two reasons. First, because women bring a different perspective to the table. This is something acknowledged long before a woman was named to the court.

The book Shortlisted: Women in the Shadows of the Supreme Court by Renee Knake Jefferson, professor of law at the University of Houston Law Center, and Hannah Brenner Johnson, associate professor of law at California Western School of Law, notes that a woman was first considered for the Supreme Court in 1930. Over the years, nine women — all prominent in their field — appeared on presidential short lists of Supreme Court contenders without being nominated.

It was not until 1981 that Sandra Day O’Connor became the first female Supreme Court justice. She was the lone woman for more than a decade before Ginsburg joined her in 1993. The two women had to lobby for simple conveniences like a bathroom near their chambers.

“Women have been graduating from law school in equal numbers to men for the past several decades. That we have seen only four women serve on the court in the history of this country is deeply problematic,” Johnson said in an email this week. She said women bring a different perspective to the court — and not a uniform one.

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“We need a diversity of female voices on the bench, as it is impossible for one woman to represent the perspectives of all women,” Johnson said.

Christina Boyd, associate professor of political science at the University of Georgia, has done multiple studies testing the influence of women on the courts, including how they influence their fellow judges in panel decisions.

“Group decision-making is better when you have diverse voices and perspectives involved, and women bring a unique set of experiences, backgrounds and worldviews to deliberation,” Boyd said in an interview this week.

Jefferson cited an example — a case heard by the Supreme Court in which a 13-year-old girl was forced to undergo a strip search (Safford Unified School District v. Redding, 2009).

“Women on the court can make a difference in how justices view issues,” Jefferson said. “For example, Justice Ginsburg explained to her male colleagues the particular sensitivities for a teenage girl who was strip-searched.”

At the time, Ginsburg was the lone woman on the court, which ruled that the school officials who conducted the strip-search violated the Fourth Amendment to the U.S. Constitution prohibiting unreasonable searches and seizures.

The second reason is to have a court that is representative of the people it serves, which engenders trust in the court system.

“Having a judiciary that represents society is essential for people to trust and believe in the courts,” Boyd said.

Recent studies have shown that sex discrimination cases are really the only area where having women on a panel of judges can influence the outcome in a statistically significant way. In all other cases, ideologies rule the day.

“Women and men aren’t that different,” said Meghan Leonard, associate professor of politics and government at Illinois State University. “A conservative woman will vote more like a conservative man than a liberal woman.”

Leonard studies state-level supreme courts and published a paper recently on the way women affect a high court’s decisions. Her research shows that while women, like men, are driven by ideology in most cases, panels with female judges on them tend to reach consensus more often, form larger coalitions and reduce the number of dissents.

“Women tend to be more democratic decision-makers,” Leonard said. “They have this consensus view of decision-making. … They get people to agree.”

Unequal scrutiny

“Women face scrutiny into areas of their life that have nothing to do with personal qualifications,” Jefferson said. “When justices Sotomayor and Kagan were nominated, the media focused on their lack of romantic partners and children. With the nomination of Barrett, we’re already seeing lots of focus on her abilities as a mother of seven.”

Johnson said age is another area where women are subject to more scrutiny than men.

“Young women are often seen as lacking the requisite experience to step into a role, and older women are sometimes viewed as past their prime or too 'grandmotherly' to be taken serious. With both of these examples, men are not subjected to the same impossible set of conditions,” she said.

Dissent

It can also be difficult for a woman to make her voice heard, even in the highest court in the nation.

Tonja Jacobi, professor of law at Northwestern Pritzker School of Law, examines Supreme Court oral arguments, transcripts of which are available to the public online. She finds that during oral arguments, women are often interrupted — not just by other justices, but sometimes by male advocates making their cases to the court.

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“Often, women’s voices are cut off,” Jacobi said. “They don’t get to ask their question, or they have to come in later in the argument to ask their question.”

Now that the court is hearing oral arguments by telephone because of the pandemic, she said the problem has gotten worse because Chief Justice John Roberts, who Jacobi said habitually interrupts Sotomayor, controls who speaks and for how long.

Female Supreme Court justices have been known to make good use of a particular tool that amplifies their voices — dissent.

Ginsburg, or “Notorious RBG,” as she was popularly known, earned her notoriety with bold and eloquent dissents that made their way around the internet as soon as they were issued.

Dissent is a powerful tool, said Jacobi.

“One thing that they do is bring public attention to the issue,” she said. “They talk about things that the majority is maybe sweeping under the carpet.”

Jacobi also noted that a powerful dissent can make a secondary issue the focus of future cases.

If Barrett’s nomination to the court is confirmed, the court will again consist of six men and three women. When asked in 2009 what it would be like to work on a court with a majority of women, Ginsburg had a ready opinion.

“The work would not be any easier,” she said. “Some of the amenities might improve.”

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