“The word I would use to describe my position on the bench is lonely.” So said Justice Ruth Bader Ginsburg in 2007, when asked to comment on her position on the U.S. Supreme Court after the resignation of Justice Sandra Day O'Connor.Footnote 1 After a year as the Court's only woman, Ginsburg had begun to feel the solitude that comes from judging alone, being the Court's only descriptive and often symbolic representative of women's interests. Ginsburg's position was not, sadly, as rare as we might hope in industrialized democracies. Although some countries, such as Canada, have had near majorities of women on their respective high courts, other countries, such as the United Kingdom, continue to have only one woman on their national tribunals.
This essay reflects upon how the “loneliness” articulated by Justice Ginsburg affects policy outcomes and reflects the institutionalized nature of sexism within the federal judiciary. We argue that although there is no persuasive evidence for a “woman's judicial voice,” the representation of diverse women judges on our nation's courts has powerful implications for public policy favorable to women. Moreover, and perhaps more importantly, we argue that having multiple women judges on a court may be important for socialization and collegiality. We urge future scholars to devote greater attention to studying this latter problem and suggest some relevant research questions to consider in this exploration.
Women Judges as Policymakers
Researchers have devoted a great deal of attention to parsing out the effects of gender on judging, trying to identify what assets and viewpoints women judges bring to the bench simply because they are women. Most of these studies, however, have struggled to identify a common perspective shared by all women on the bench. For example, studies of women judges' decisions, from trial courts to the Supreme Court, have identified only conditional effects for gender on judicial decisions. Often, these differences are visible only—or most clearly—in gender discrimination cases and difficult to find in other types of litigation (e.g., Davis, Haire, and Songer Reference Davis, Haire and Songer1993; Gryski, Main, and Dixon Reference Gryski, Main and Dixon1986; Songer, Davis, and Haire Reference Songer, Davis and Haire1994).
Scholars argue that one reason why differences in judicial outcomes may be most visible in gender discrimination cases is that though their politics, interpretation of the law, and legal training may vary, women do have some shared life experiences that may inform their legal reasoning (e.g., Martin, Reynolds, and Keith Reference Martin, Reynolds and Keith2002; Songer, Davis, and Haire Reference Songer, Davis and Haire1994). A great majority of women judges can point to a time in their lives when their gender was a barrier to their achievement, be it as an eight-year-old wanting to play Little League or as a writer on law review held to a different standard than that of their male colleagues. These experiences may be in the back of women judges' minds as they consider other women's claims about discrimination on the basis of gender.Footnote 2
In the paragraphs that follow, we consider gender discrimination cases before the Supreme Court from 1981 to 2008. We draw on existing literature and evidence from case law to suggest that this issue area remains a powerful rallying point for women judges. We also show that women judges' ability to attract their male colleagues' support for these issues may be idiosyncratic at best. But having a court comprised of several women judges who represent diverse backgrounds and ideologies may be one way to broaden male judges' support for gender discrimination claimants.
Justice Sandra Day O'Connor and the U.S. Supreme Court
The first woman justice, Sandra Day O'Connor, was seated on the U.S. Supreme Court in 1981. O'Connor, who was appointed by President Ronald Reagan and had served as a Republican State Senate majority leader in Arizona, had a reputation as a conservative-to-moderate thinker. When asked about the role that gender should play in judicial decisions, she generally dismissed the question and stuck closely to the cliché that “a wise old man and a wise old woman will reach the same judgment” (For an extended discussion, see O'Connor Reference O'Connor2003).
From the very start, however, Justice O'Connor brought a visible woman's perspective to the Court in certain types of cases. During her first term, for example, she was called on to author the Court's decision in the education discrimination case of Mississippi University for Women v. Hogan (1982), which ruled that certain types of single-sex admissions policies violated the Fourteenth Amendment's equal protection clause. O'Connor's opinion was remarkable for several reasons. First, it assured women's rights activists that even though O'Connor was a conservative, she was sensitive to gender issues. And more importantly, O'Connor cast a vote that her predecessor, Justice Potter Stewart, would probably not have cast. In so doing, she cemented the application of the intermediate standard of review and sent a message that the current Supreme Court would examine questions of gender discrimination with a skeptical eye.Footnote 3
O'Connor's sensitivity to gender discrimination claims also appeared to affect the decisions of her colleagues, and in turn, the Court. Karen O'Connor and Jeffrey A. Segal (Reference O'Connor and Segal1990), for example, found that after Justice O'Connor joined the Court, Justice William H. Rehnquist increased his support for gender discrimination claimants from 25% to 50%. Similarly noteworthy were O'Connor's apparent effects on Chief Justice Warren E. Burger (32.1% to 50%), Justice John Paul Stevens (57.1% to 83.3%), and Justice Byron White (69.8% to 91.7%).
Justice Ruth Bader Ginsburg Joins the Court
In 1994, Democratic President Bill Clinton appointed Ruth Bader Ginsburg, the former director of the American Civil Liberties Union's Women's Rights Project, to fill a vacancy on the Supreme Court. She joined Justice O'Connor on the bench, marking the first time that more than one woman sat on the highest tribunal of the United States. Women's rights activists viewed her arrival as both a symbolic and substantive victory for gender equality.
Existing studies have shown that the addition of Justice Ginsburg to the Court did not have the same widespread effect on her male colleagues' support for gender discrimination claims as Justice O'Connor's addition had 13 years earlier (Palmer Reference Palmer2002). However, there can be little doubt that Justices Ginsburg and O'Connor—who had divergent ideologies and agreed in only 52% of decisions handed down by the Court during the 12 years they spent together on the bench (1993–2005)—formed a powerful partnership for women's rights. In gender discrimination and abortion cases, the justices fell on the same side of the Court's final decision in 90% of orally argued cases with signed opinions. They were also successful in securing their colleagues' votes for women's rights in the vast majority of cases. Here, we examine the results of this partnership in greater detail.Footnote 4
O'Connor and Ginsburg Rule on Gender Discrimination Cases
In the 14 gender discrimination cases that came before the Court between 1993 and 2005, Justices O'Connor and Ginsburg agreed in 12, or 86%. In addition, one of the cases in which the justices disagreed, Miller v. Albright (1998), was actually reversed by a very similar 2001 decision, Nguyen v. Immigration and Naturalization Service (INS), which found the justices together in dissent. In a 6–3 decision in Miller, the Court addressed a very complicated issue involving INS regulations dealing with citizenship issues for children tied to the gender of the parent. Although Justice O'Connor agreed with the outcome, which critics claimed supported gender discrimination, she wrote a special concurrence stressing that she did not agree with the Court's reasoning. By 2001, in a 5–4 decision in Nguyen, not only had Justice O'Connor changed her position but she also actually wrote the dissent, in which she was joined by Justices Ginsburg, Stephen Breyer, and David Souter.
Equally as startling is that Miller and Nguyen were two of just three cases (the third being Gebser v. Lago Vista Independent Schools [1998]) in which the Court's final decision upheld the gender discrimination at issue in the case. In all of the remaining 11 cases, the Court decided in favor of the party advancing the gender-based discrimination claim. These decisions encompassed a broad swath of legal issues. Of particular note is the number of sexual harassment cases that the Court took and decided during this period, and how the Court interpreted the sexual harassment protections of Title VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972 to protect women.
Judging Alone: The Departure of Justice O'Connor
In 2005, Justice O'Connor chose to leave the Court, citing concerns with her husband's health and an interest in spending more time with her grandchildren. Though she was diplomatic, O'Connor did voice some concerns with Republican President George W. Bush's ultimate decision to replace her with a male judge, Samuel A. Alito. In fact, she was quoted as saying that she was “very disappointed that the vacancy I created was not filled by a woman.”Footnote 5
O'Connor's concerns may have been more symbolic than substantive, but women's rights activists immediately feared how her replacement would affect public policy. Although these groups would likely have been dissatisfied with any conservative Republican appointee, they believed that a conservative woman similar to Justice O'Connor would have been better for gender equality than a similar male appointee (for example, Justice Alito).
These fears, it appears, were realistic. Following Justice O'Connor's departure, the Court considered two particularly notable gender discrimination cases, Ledbetter v. Goodyear Tire and Rubber Company (2007) and AT&T v. Hulteen (2009).Footnote 6 These cases were decided by 5–4 and 7–2 opinions, respectively. In each, a majority of the Court found against allegations of workplace discrimination made by women complainants. While it is unclear whether Justice O'Connor's presence on the Court would have made a difference in Hulteen, it undoubtedly would have in Ledbetter, an Equal Pay Act case that evoked outrage from women's rights groups and received significant publicity during the 2008 presidential campaign. Justice Ginsburg herself commented to USA Today in 2009 that she was convinced that Justice O'Connor would have sided with her in the Ledbetter case, shifting the Court's ultimate decision to favor complainant Ledbetter.Footnote 7 So outraged was Ginsburg by this case outcome that, as she read her dissent forcefully from the bench, she called on Congress to overrule the Court's decision (which it later did).
Justice O'Connor's absence was also keenly felt in a related issue area—abortion. Throughout her time on the Court, Justice O'Connor had consistently provided the reliable fifth vote in favor of reproductive rights.Footnote 8 She was also considered to have been critical in convincing her colleague Anthony Kennedy to side with her in some abortion cases, particularly Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (Moore Reference Moore1998; Taylor and Thomas Reference Taylor and Thomas2007; Ward Reference Ward2005). However, in Gonzalez v. Carhart (2007), abortion rights activists lost their conservative woman ally on the Court and were unable to hold on to Justice Kennedy's vote. In fact, he wrote the Court's final opinion, which upheld the constitutionality of the federal Partial Birth Abortion Ban Act and took the almost unprecedented step of essentially overturning a decision the Court had issued (and he had endorsed) only seven years earlier.
Lessons from the Court: Future Scholarship on Women Judges as Policymakers
Much of the existing scholarship of women judges' influence on policy outcomes has considered how judges vote differently from or similar to their male colleagues or whether they have pursued a common women's judicial identity. But as Justices O'Connor and Ginsburg remind us, women judges, like their male colleagues, are idiosyncratic individuals who bring a variety of ideological perspectives and life experiences to the bench. As such, the pursuit of one judicial voice is unlikely to be a fruitful one. Moreover, as this evidence from the U.S. Supreme Court reminds us, most judges above the trial court level do not literally judge alone.
As the number of women judges on courts continues to grow, both in the United States and abroad, we urge scholars to move beyond the consideration of women judges' votes and a women's judicial voice and consider how women judges' presence affects overall outcomes on collegial courts. For example, we might imagine that diverse perspectives among women judges on a court might increase their ability to relate to and persuade their colleagues to support gender equality. In other words, as a conservative male judge, it may be easy to dismiss the gender-based appeals of a liberal female colleague with whom you share few policy positions. It may, however, be more difficult to ignore a conservative woman judge, with whom you often agree. Thus, we might ask whether diverse groups of women judges result in policy outcomes that favor women's rights more often than less diverse judicial panels. We might also wonder whether ideologically liberal women have more difficulty advancing women's rights (simply because they are more easily viewed as ideologues) than their conservative colleagues.
We might also wonder if there is a critical mass of women that makes it more difficult for their male colleagues to ignore their perspective. If so, does the size of this mass vary with ideology and institutional structures (e.g., in the use of panels rather than en banc, where the entire bench hears a case, or court size)? And after reaching this critical mass, can women judges (like women legislators with breast cancer research) find issues beyond gender discrimination that become common rallying cries? Existing literature on women in Congress, preliminary examinations in divorce law (Martin and Pyle Reference Martin and Pyle2004), and studies of the politics of small groups may be fruitful starting points for such explorations.
These are but two of a larger number of questions that innovative scholars could ask to highlight women judges' role in policymaking. We urge scholars to continue to form new research questions that advance our knowledge in this area and move beyond the standard debates regarding gender and judicial outcomes.
One Is the Loneliest Number: Women's Representation and the Judicial Environment
Equally serious as the policy consequences, and perhaps less frequently discussed by scholars, are the social consequences of underrepresenting women on judicial tribunals. Not only does such a situation send a less than desirable signal to young women about their career aspirations, but it may also create a social climate so inhospitable to women that it drives qualified individuals away from these positions.
For example, after the departure of Justice O'Connor, Justice Ginsburg delivered disturbing reports regarding her treatment on the Court, as well as her comfort in dealing with her colleagues. She noted that her experiences often reminded her of her time as a lawyer in the 1960s and 1970s: “I don't know how many meetings I attended in the ‘60s and ‘70s where I would say something, and I thought it was a pretty good idea. Then somebody else would say exactly what I said. Then people would become alert to it and respond to it.” Ginsburg reported a similar phenomenon during conferences on the Court—a phenomenon she did not feel as dramatically with the more senior, more conservative Justice O'Connor as an ally. There were times, Ginsburg said, “when I will say something—and I don't think I'm a confused speaker—and it isn't until somebody else says it that everyone will focus on the point.”Footnote 9 These comments are especially startling because in earlier interviews, Ginsburg had always spoken highly of her colleagues—some of whom are close personal friends from her days on the U.S. Court of Appeals.
As the lone woman on the Court, Ginsburg also struggled with her relationship with her colleagues during oral arguments. For example, consider the Fourth Amendment case of Safford Unified School District #1 v. Redding (2009). In Safford, a 13-year-old girl was subjected to a strip search in the principal's office. After she was searched and the ibuprofen she was charged with hiding was not found, she was put in a chair outside the vice principal's office for more than two hours without her mother being contacted. During oral argument, Justice Ginsburg alone appeared to view that action as an act of punitive humiliation. She was particularly outraged by comments by moderate Justice Stephen Breyer, who appeared not to realize the traumatic effect that an adolescent girl would experience when forced to strip down to her underclothes in front of school administrators.
The insensitivity evidenced by her colleagues made Ginsburg take the unusual action of speaking out about a case before its decision. “They have never been a thirteen-year-old girl . . . it's a very sensitive age for a girl. I don't think that my colleagues, some of them, quite understood.”Footnote 10 Going public appeared to be a tactic that served Ginsburg well. The public brouhaha that occurred over her comments about the case appeared to have shamed her colleagues into deciding in favor of Redding.
Alone, Together
Although Justice Ginsburg may have felt very isolated on her own court, anecdotal evidence suggests that her experiences are not all that uncommon for women judges serving on other nations’ high courts. Women judges in Australia, for example, report that their qualifications are questioned more frequently than those of their male colleagues (Hunter Reference Hunter, Sheehy and McIntyre2006). And studies of Canadian women judges reveal that they are more likely than men to have their objectivity challenged (Backhouse Reference Backhouse2003; Omatsu Reference Omatsu1997).
Studying the Social Climate
It is most interesting that for all of the discussion about how women judges' vote, and for all of the searching for a distinctive woman's judicial voice, there has been relatively little discussion and analysis of the interaction between gender and the climate in which judges make decisions. On collegial courts such as those employed in the United States, a justice's comfort with her work environment and colleagues, as well as the respect those male colleagues accord her, may have significant consequences not only for policy decisions (as discussed previously) but also for a number of other factors. These may include how plaintiffs and defendants are treated in the courtroom, the language employed in judicial decisions, and, on discretionary courts, even the types of cases that appear on the docket. Repeated reports of an unfriendly climate may also deter the political ambition of otherwise qualified women.
Where possible, scholars should also explore these questions not only in courts that appear to be inhospitable to women judges but also in seemingly favorable climates. For example, in addition, it bears exploration as to what effects might result from having a majority of women on a court (as was the case in the Minnesota Supreme Court [e.g., Molette-Ogden Reference Molette-Ogden1998]) or judicial panel. Do organizational norms, work hours, or legal practices change (presumably becoming more family friendly)? Does the composition of a discretionary docket look different? And is the language of the opinion of the court more “feminine”? (For more on these questions see Sally Kenney in this issue.)
Admittedly, many of these concepts are difficult to study and analyze using traditional quantitative research techniques and existing databases of judicial activity. However, we believe that investing time into systemic qualitative data analysis, as well as more current surveys of sitting and potential women judges, will yield interesting insights into gender and the judicial process. More broadly, such analyses might give air to the increasingly subtle ways that gender discrimination affects women in all walks of life.
Conclusion
This essay has provided evidence from the U.S. Supreme Court about the importance of having women—particularly multiple, diverse women—judges serving on the bench. We have focused specifically on the effects of gender on public policy outcomes and the social climate of the courtroom. In addition to evaluating existing research and providing anecdotal evidence in these areas, we have suggested a number of new ways that scholars might move beyond votes and a women's judicial voice to study gender and judging in new and innovative ways.
We believe that the next few years will be particularly well suited to these analyses. At this writing, President Barack Obama has already appointed two women to the Supreme Court: Justice Sonia Sotomayor and recent nominee Elena Kagan. He could potentially appoint several more justices, as well as a large number of judges to the federal courts of appeals and district courts. In addition, state court judges have become an increasingly compelling and important part of the political system.
Sotomayor's appointment provides a particularly interesting avenue for future research. Her gender and ethnicity raise questions about intersectionality that we have not previously had the opportunity to consider. And her comments during the confirmation process that she would “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life” only increase the salience of these concerns.Footnote 11
Furthermore, the potential addition of two new women (Sotomayor and Kagan) and their interactions with veteran Justice Ginsburg and their six male colleagues will provide a range of new anecdotal and qualitative evidence to be used in analyzing the relationship between gender and judicial outcomes. We will also quickly come to learn if Justice Ginsburg still feels as though she is judging alone, or if she has found colleagues and kindred spirits in Justices Sotomayor and Kagan.
Appendix: Cases Included in the Analysis
Note: U.S. v. Morrison, the 2000 Violence Against Women Act case, is not included in this list because it is coded in the Spaeth Dataset and considered by many Court watchers to be a federalism case.
