Guideposts for Thinking and Discussion: Women, Gender, and the Supreme Court
When thinking about the Supreme Court and gender it is important to understand that the Court has been a judicial body composed entirely of men until Sandra Day O'Connor came on board in 1981. Even today, after over 200 years, only two women (O'Connor and Ruth Bader Ginsburg) have served on the Supreme Court--and O'Connor will be retiring in 2006. This simple fact is profoundly important because the men of the Supreme Court have rendered decisions affecting women in the context of a historic culture that generally looked upon women as fundamentally different from men in their character, instincts, social behavior, and needs as human beings. In confronting, moreover, the gendered biases of the men who have served on the Court, few clear guidelines existed for engaging a fundamental question of law: how should women be treated relative to men? Should women be equal to men in the eyes of the law regardless of their biological and culturally-determined differences? Or should they be protected and assigned rights as women under provisions of equity that are unique to them as women? These questions have dominated much of the historic debate about gender and the Court, and they are still in contention even today.
Is it in the best interests of justice in a democratic system for male judges to render decisions on issues that impact women solely and directly as women? One frequently hears among the advocates of abortion rights that it is fundamentally wrong for men, who can't become pregnant, to be making decisions about birth and babies on behalf of women? Does one's gender affect one's thinking as a judge in dealing with gender issues? Is there such a thing as a female perspective that is different from a male perspective? Although not everyone agrees on the answer to these questions, many people (including noted scholars) contend that men and women think differently about all kinds of things due to biological and/or socially-imposed differences.
To engage this issue, one has to think about the meaning of being a male and a female, about what it means to be a man and a woman. Is the concept of "female" a social and cultural construct? What is the proper role for women in society? What is the proper role for men? And who should determine the agendas for such roles in American society, men or women? How you answer these questions might determine how you would approach the larger issue of men judging women, or women judging men. To what extent was the nation's system of law, for example, a product of male culture and the vested interest of male judges in protecting the power of men in the family, government, religion, the economy, and the law?
Historians of gender have written persuasively about the ways in which the founding fathers and brothers wrote women out of the Constitution and generally out of the law of the land. But women were not simply ignored by the founders of the nation's government and system of law. Rather, they were relegated to a special place beyond, and perhaps above, politics and law, a place identified by historian Linda Kerber as the privileged arena of the "republican mother." According to this reading of the nation's history, it was a woman's responsibility in the new nation to raise responsible, civic-minded, and virtuous sons, men who would assume enlightened leadership roles in the nation as educated, honest, and morally-endowed males. Daughters, in turn, were taught to inculcate the duties of the republican mother as adolescents and young women growing up. In this way, women were responsible within the family for the very well being of the nation. Should they fail in their charge to nurture virtuous men, the results would prove tragic for the nation. Men functioned, according to this ideal (and when properly influenced by their republican mothers and wives), as morally responsible fathers of families and as virtuous contributors to their communities; these virtuous men thereby served the best interests of women and everyone else by governing wisely, thanks principally to an enlightened education and the guideposts provided by their mothers and wives. In this view of the world, men lived and functioned in the public sphere while women lived and functioned in the private, domestic sphere of life--or at least that was the ideal.
What this meant, of course, is that women were perceived to be a special kind of citizen, one best left out of the world of politics and government, business and law, and the affairs of state and nation; to be involved in such things distracted women from their responsibility as nurturing mothers and wives. Each household in the nation was idealized as a patriarchal household with the father and husband, or adult brothers and male relatives in those cases where women were unwed or widowed, serving as the benevolent and paternalistic head of the family and, by implication, the nation. It was this perspective, it is argued, that Supreme Court Justices have generally shared, and it was this perspective that affected how they looked on cases involving women. Was this fair? Was justice best served as a result? How did this view of women change, if it did, over time?
The second point mentioned above, regarding the few guidelines available to women in their struggle to move from the domestic sphere into a position of equality with men, has to do with the historic struggle of women to create a new language along with a new set of legal assumptions and new images to counter the prevailing gender-biased wisdom about women and men. Whenever women attempted to enter into the public sphere as fully participating citizens they ran the risk of being deemed "bad mothers." To try to achieve equality required a new language that re-defined women's rights from the perspective of women rather than a male-define agenda. Suffrage had to become a word that applied generally to all citizens and not just men. The positive connotation of words like "mother" and "wife" had to be balanced by presenting in a positive light such words as "feminists" and "suffragists." The image of the mother and wife in the household nurturing the family had to be expanded to include images of women working in factories, walking picket lines, riding motorcycles, becoming astronauts, and serving as members of the Supreme Court. Hence, the legal idea of equity for women, based on the idea of women as unique and special, had to be replaced with the concept of due process, privacy rights, parity, and equal rights for women as persons regardless of their sex, as is clearly stated in Title VII of the Civil Rights Act of 1964.
Because of the gendered character of our language, laws, and images, the line that links women aspiring to vote to women wanting to choose an abortion is a continuous line, one running through the nation's history from the "bad mothers" (suffragists) of the young nation to the "bad mothers" (pro-choice feminists) of today. By looking at the Supreme Court and its decisions relating to issues of gender in this perspective, students of the Court's history can at least engage the question of male dominance and power and the problem that women have faced in achieving unbiased rulings from male justices. This is not to say, however, that men and women are unable to rise above their culturally-determined perspectives as men and women to render fair and judicious opinions. Rather, it is to say that gender matters in ways that are profound and historically fundamental when it comes to most areas of life. To acknowledge this requires stepping back and looking carefully at the question of gender bias and one's assumptions about the roles assigned to males and females in the society in which we live. (Take a look at Muller v. Oregon for an example of a case that identifies women with the limiting image of "mother.")
The Female Justices: Sandra Day O'Connor and Ruth Bader Ginsburg
Ronald Reagan appointed Sandra Day O'Connor to the Supreme Court in 1981 in fulfillment of a campaign pledge to name a woman to the Court. Twelve years later, in 1993, William Clinton named Ruth Bader Ginsburg as the second woman on the Court. Both have made their marks on the Court in some of the most important cases affecting gender issues as well as an array of other cases. Did their gender and experiences as women make a discernable difference in their opinions as members of the highest court in the land in those cases related specifically to gender?
Sandra Day O'Connor
Looking first at Justice O'Connor, her biographers claim that her decision not to overturn Roe v. Wade and a woman's right to choose an abortion was considered an act of betrayal by many conservatives in the nation. Among the several cases in question was Planned Parenthood of Southern Pennsylvania v. Casey, decided in 1992. At issue was the authority of a state to establish conditions limiting when an abortion could be obtained. Pennsylvania courts upheld legal restriction by the state governing when a woman could obtain the abortion of an "unviable fetus": the consent of a parent in the case of a minor seeking an abortion, notification of husbands by married women, and a twenty-four hour waiting period after a doctor had provided information about the development of the fetus and alternatives to abortion. The Court faced the question of whether these state regulations posed an "undue burden" on women, which a previous ruling (Webster v. Reproductive Health Service--1989) had established as the litmus test on state laws affecting abortions. In the Court's ruling, which included a joint opinion written by Justices O'Connor, Anthony M. Kennedy, and David Souter, all of the provisions (except the one about a married woman notifying her husband) were sustained as reasonable because they did not pose an unwarranted obstacle to an abortion.
The crucial point here is that the Court could have overturned Roe in its ruling in Casey. This was the opportunity for which many conservatives had been waiting. Four Justices, William H. Rehniquist, Antonin Scalia, Byrum R. White, and Clarence Thomas, had urged the Court to use Casey to strike down Roe. Furious with O' Connor, Justice Scalia argued that the freedom to choose an abortion is not a liberty protected by the Constitution. (His critics say, by the way, that it is a freedom not specifically denied by the Constitution either, thus leaving it open for perennial debate.) In his opinion, the Court should have used Casey to set aside Roe once and for all. Justice O'Connor's written opinion argued that nothing had been presented in Casey by those opposed to abortion to show that Roe was "unworkable," a "doctrinal anachronism," or "somehow irrelevant." More importantly, she held that to abandon Roe would result in a "serious inequity to those who have relied upon it..." and that such a decision would produce "significant damage to the stability of ... society."
O'Connor held that the theory of stare decisis should be the guiding principle regarding a woman's right to choose an abortion. For her, the right of a woman to choose an abortion had become tightly stitched into the nation's cultural fabric. To overrule it would challenge more than just abortion, it would challenge the way the nation had come to consider the rights and prerogatives of women as women. She presented this idea by saying that "for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."
In other words, to overrule a fundamental doctrine such as Roe would challenge an accepted cultural norm that had greatly empowered women in ways acceptable to the vast majority of the nation's female (and even many if not most of its male) citizens. Such a ruling would amount to blatant judicial activism. To overturn Roe would, in O'Connor's opinion, undermine the legitimacy of the Court in the public's perception because it would appear as if it had acted not on principle but due to political pressure. When she argued that Roe had impacted the culture of the nation in ways favorable to the rights of women, she asserted her conviction that this had been a good and positive development that should not be undone.
In retrospect, perhaps O'Connor's own experience as a woman had affected her thinking on Roe. Upon her graduation with high marks from Stanford law school, the only job she could find was that of a secretary in a law firm. Rather than abandon law, she worked for a few years as the deputy attorney for San Mateo County, California, and then as a civilian attorney for the U. S. Army when her husband was stationed abroad. From 1965 until her appointment to the Supreme Court, O'Connor gave birth to and raised her family and also served as a member of the Arizona Senate and as a justice on the Maricopa County Superior Court and the Arizona Court of Appeals. In other words, she had known first hand what it meant to be a career-oriented woman with a family, someone whose opportunities in the private sector may have been severely restricted because she was a woman. Some of her most articulate queries statements, moreover, in questioning lawyers in Casey and other cases affecting women, highlighted the plight of pregnant women as persons unequal in status, income, and power relative to men. Perhaps her own experiences as a woman mattered to her fundamentally when it came to breaking with her conservative colleagues and supporting the right of women to choose to abort an unviable fetus. What do you think?
Ruth Bader Ginsburg
When President Bill Clinton nominated and the Senate confirmed Ruth Bader Ginsburg to the Supreme Court in 1993, the issue of Roe and the right of women to choose the abortion of an unviable fetus seemed to have been settled. Surprisingly, but probably because of this assumed settlement, the Senate confirmed her with a nearly unanimous vote, 97 to 3. There could be no doubt where she stood on issues affecting women. She had worked as the key legal counsel of the New Jersey affiliate of the American Civil Liberties Union while teaching at Rutgers University, and she also had served as the director of the national ACLU Women's Rights Project while a tenured professor at Columbia University's school of law. In that capacity she argued several cases before the Supreme Court that resulted in the Court ruling in favor of a heightened scrutiny of legal classifications based on sex.
As a lawyer and law professor Ruth Ginsburg had clearly been an activist for women. Uppermost in her mind as a lawyer and professor was the need for the legal system to overturn state laws that discriminated against women. Viewing discrimination as unequal treatment of women, she challenged these laws as unfair under the Equal Protection Clause of the Fourteenth Amendment. The stumbling block for her legally speaking was how to show that gender discrimination was the same as discrimination based on race and religion (or at least viably "suspect" as in the case of race and religion), both of which were viewed as unconstitutional by the Supreme Court. In the language of the law, discrimination on the basis of race and religion could only be allowed if state legislatures had passed such laws in trying to promote "a compelling state interest" that was recognized as something extremely good for the larger society. This was a high wall to scale because the differences between racial abuse and gender abuse seemed so clearly distinct. Women were not excluded from the vote; nor were they forced by economic and restrictive covenants to live in ghettoes. And most state laws that discriminated against women were thought to be laws that actually protected women rather than harmed them.
To make the point that race and gender discrimination were similar, Ginsburg argued that gender and race were characteristics people could do nothing to change, that protective legislation for women simply hurt women by confining them to the bottom rungs of the social ladder and rested on false notions about what women could actually accomplish, and that there simply was no compelling reason for treating women differently from men. Ginsburg made this point in several dozen cases in which she was the principal advocate, or associated with the case, as an attorney. She argued six of these cases before the Supreme Court, and while she did not win all of them, she had become a national figure in the fight to end legal discriminations against women at the time of her nomination.
As a Justice of the Supreme Court, Ginsburg made her mark early on as a force for equality, writing the majority opinion in the important case involving gender discrimination at the all-male Virginia Military Academy (United State v. Virginia, 1996). Ginsburg held that the Constitution guaranteed the equal protection of the laws under the Fourteenth Amendment and that limiting individual rights based on a stereotypical assumption about gender was, similar to racial discrimination, unconstitutional. This was a landmark case because the Court clearly ruled that it would apply a standard of "strict scrutiny" in cases involving gender discrimination. All members of the Court were in agreement with the exception of Justice Antonin Scalia, who argued that the decision would destroy VMI and render no great benefit to women.
It might surprise some to know that Ginsburg was not a strong supporter of the reasoning behind Roe. As a an appeals court judge, she had written a law review essay that criticized using a person's right to privacy as the basis for allowing a woman to choose an abortion. For Ginsburg, a woman had a right to choose abortion because laws making it illegal were forms of sex discrimination. She believed that women could have won this right legally by allowing the political process to run its course, by allowing the battle to be fought at the ballot box state-by-state or in Congress rather than in the courts.
Her skepticism about the privacy argument was consistent with her contention that supporters of abortion would be on stronger grounds by using the Equal Protection Clause of the Fourteenth Amendment to promote equality for women. This reasoning contends that the argument for abortion on the basis of a woman's right to privacy, or the right of a woman to control her own body without governmental interference, is a difficult one to make especially because of conflicting societal views about the morality of aborting an unviable fetus and about the proper definition of the word "unviable." Moreover, it runs in the face of those who contend that an unviable fetus, because it is endowed with an immortal soul at the moment of conception, has a constitutionally protected right to life.
Ginsburg's position here seemingly argues that one can avoid the whole issue of when life begins by seeing the legal prohibition of abortion as legally using a woman's body for the interest and control of others. This amounts to a disability that no man suffers. The government, in this perspective, is not allowed under the Equal Protection Clause to make laws that impose on women burdens in protection of fetuses that amount to an unfair act of bodily cooptation. The failure to view the issue in terms of equal protection rests upon the unwarranted societal assumption that women should be child bearers, regardless of their individual desires to assume that role.
Both Ginsburg and O'Connor stand together as "sameness" feminists, meaning that they believe that women should not be discriminated against as women. O'Connor had early on taken this position in her majority opinion in a case where Mississippi barred a man from attending its state school for nurses (Mississippi University for Women v. Hogan--1982). She wrote in that case that such a restriction perpetuated "the stereotypical view of nursing as an exclusively women's job." In 1994, she agreed with Ginsburg that excluding female jurors or male jurors in jury selection because of their gender rested on stereotypical assumptions about how men and women would act as jurors, and was thus unconstitutional (J. E. B. v. Alabama es rel. T. B.--1994). Both women agree that in matters of law, gender should not make any difference in how the rights of United States citizens are defined or disseminated in society.
Ginsburg personal history as a woman undoubtedly impacted her views about gender discrimination as a judge. After graduating at the top of her class at Columbia Law School, she failed to get even a single job offer from any of the top law firms in New York. Nor was she offered a respected clerkship with the Supreme Court. Instead Ginsburg had to settle for a much less prestigious clerk appointment with a federal trial court, and then only because of the intervention of one of her male professors from Columbia University. When another of her professors had tried to get her appointed as a clerk to Supreme Court Justice Felix Frankfurter, the celebrated Justice said that he was not yet ready to employ a female law clerk. Earlier, after graduating from Cornell University, she had been denied employment as a college graduate commensurate with her skills and potential because she was pregnant, and she was forced to work as a typist. It was in this context that she eventually turned to teaching (although not at first with any of New York's top law schools) and to working as an attorney for the American Civil Liberties Union.
In reading and thinking about the decisions of Sandra Day O'Connor and Ruth Bader Ginsburg as Supreme Court Justices it is important to consider the extent to which their personal histories impacted their decisions as Justices. The same can be said of any of the Justices on the Court. For example, does it matter that Justice Antonin Scalia is a devout Catholic who personally views abortion to be tantamount to murder when discussing his opinions on abortion?
Understanding a person's legal and personal history is especially important when a new Justice is appointed to the Court. Some observers have noted that statements by John Roberts (during his confirmation hearings for appointment as Chief Justice) affirming precedent and the rule of stare decisis sent a clear signal to the Senate that he agrees with Justice O'Connor's decision in Casey about not overturning rulings that have become part of the cultural fabric of the nation. By emphasizing precedent and the theory of stare decisis, Roberts was able to sidestep the issue of agreeing with the reasoning behind Roe, of which, like Ginsburg, he is on record criticizing. It seems too that the current nominee to the Supreme Court, Samuel Alito is following in the same path as Roberts by saying that his personal history is not especially relevant when it comes to how he will decide issues of law. He also has assured Senator Arlen Spector that he accepts the right of sexual privacy. Based on what we know about O'Connor and Ginsburg, what do you think? More importantly, do you think that it is possible for a male Justice to ever approach issues of gender from the same perspective as a woman? Do men and women deal with issues of gender differently because of their sex and their related life experiences? Does the answer matter?