Throughout the entire history of the United States Supreme Court, only two women, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, have ever served on that institution. Since O’Connor retired and was replaced by Samuel Alito, there is only one woman on the Court. This is so despite the fact that women make up a slight majority of the population, approximately 34% of lawyers, and 43% of judges. With the possibility of several Justices (perhaps including Justice Ginsburg herself) retiring from the Court in the near future, it is worth considering whether we need more women on the Supreme Court. The answer to this question is far from obvious. Arguably, we need the best possible people on the Court, regardless of their gender. Moreover, some might argue that it would be discriminatory to prefer a candidate based on her gender. However, these arguments do not take into account what many of us know as a matter of instinct – judges, like all other people, view issues through the lens of their own life experience and predilections. In the Twenty-First Century, is it really OK to have only one person of nine on the top court in the land who has experienced life and the law as a woman, like over half of our population?
A couple of recent case have raised this concern to the forefront of my mind. The first is Carhart v. Gonzalez, a 2007 case in which the Court upheld a congressional ban on a form of late term abortions. The Court disregarded the opinion of nine professional associations of doctors, including the leading American College of Obstetricians and Gynecologists, who recommended the procedure as significantly safer than the other form of late term abortions permitted by the statute. Instead, the Court agreed with Congress that the procedure was never justified to protect the health of women. Why overlook the substantial weight of the medical evidence? Justice Anthony Kennedy explained, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.” Justice Kennedy’s Cahart opinion is reminiscent of Justice Bradley’s concurrence to an 1872 case, Bradwell v. State, explaining that women did not have a constitutional right to be lawyers because “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” As the lone woman on the current Supreme Court (and a mother of two), Justice Ginsburg argued in dissent, Kennedy’s “bonds of love” language “reflects ancient notions about women’s place in the family and under the Constitution.” Yet now it is also part of our Twenty-First Century constitutional jurisprudence.
The second example occurred just this week during the oral argument before the Court in the case of Safford v. Redding, in which school officials strip searched a 13 year girl because her former friend said that she might have drugs. While Justice Breyer joked about having things put in his underwear when he was twelve, Justice Ginsburg angrily pointed out that 13 year old girls tend to be incredibly self conscious about their bodies. Can we really expect even well meaning judges who joke about underwear to adequately protect the privacy rights of 13 year old girls, who can be traumatized for life when they are told to shake out their bras and underwear by school authorities based not even on a reasonable suspicion that they might possess contraband? No wonder Justice Ginsburg says that she is lonely!
So, do we need more women on the Supreme Court? You bet we do!