Judging Alone: Reflections on the Importance of Women on the Court

by Angela N. Johnson

Author Karen O’Connor acknowledges that there is no persuasive evidence[1] for a “womans judicial voice,” but that the representation of diverse women judges impacts public policy favorable to women and is important for socialization and collegiality (O’Connor 2010, 441). One such area that appears to be impacted by women’s presence on the bench is that of gender discrimination cases.  O’Connor reports that scholars believe gender discrimination cases are an exception because women have some shared life experiences that may inform their legal reasoning. This article also considers the experiences of Justice Ginsburg after Justice O’Connor’s departure. In writing this article, O’Connor considered gender discrimination cases before the Supreme Court from 1981 to 2008 to suggest that gender discrimination cases “remain a powerful rallying point for women Judges” Id. at 442. Taking for example, Justice Sandra Day O’Connor’s impact on gender discrimination cases, beginning with her majority opinion in Mississippi University for Women v. Hogan (1982), which ruled certain types of single-sex admissions policies violated the Fourteenth Amendment’s equal protection clause – a “decision Justice O’Connor’s predeceasor, Justic Potter Stewart, would probably not have cast” Id. at 443. Even more compelling, is Justice O’Connor’s impact on her colleagues.  According to the author, in examining gender discrimination cases, 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 Stevents (57.1% to 83.3%), and Justice Byron White (69.8% to 91.7%). 

In terms of whether women rule differently than men (or in other words, women would rule similarly to other women), the author compares the decisions of Justice O’Connor to those of Justice Ginsburg, finding that they “agreed in only 52% of the decisions handed down the 12 years they spent together bench (1993-2005)” Id. at 444. However, in particular types of cases, the justices agreed more frequently (90% of the time in gender discrimination and abortion cases).  In reviewing the author’s analysis, this leads me to conclude that women’s impact isn’t about plainly being a woman, but rather, the type of cases she (as a woman) understand on a more personal level.

Following Justice O’Connor’s departure (wherein she was replaced by Justice Alito, leaving Justice Ginsburg the only female on the bench), the Court considered two gender discrimination cases, Ledbetter v. Goodyear Tire and Rubber Company (2007) and AT&T v. Hulteen (2009). Both cases found against allegations of workplace discrimination (meaning the women plaintiffs lost their cases) Id. at 445.  Though it is unclear whether Justice O’Connor’s presence would have made a difference (the Ledbetter case was decided by a 5-4 vote, AT & T by a 7-2 vote), Justice Ginsburg 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” Id. at 445-446 citing Joan Biskupic’s  “Ginsburg: Court Needs Another Woman,” USA Today, 5 May 2009. These examples remind us that “women judges, like their male colleagues, are idiosyncratic individuals who bring a variety of ideological perspectives and life experiences to the bench” Id. at 446.  

Though empirical evidence does not suggest that women judges impact all types of cases across the board, women judges’ impact can be felt in other areas.  For example, the notable exclusion of women judges signals young women about their career aspirations and may keep many qualified women lawyers from seeking judgeships. Additionally, presently serving judges may realize more hostility as minorities.  For example, Justice Ginsburg reported her treatment on the court and comfort in dealing with her colleagues decreased after Justice O’Connor’s departure Id. at 448. Additionally, Ginsburg’s struggle with her colleagues is present during oral arguments, one such example is that of Safford Unified School District #1 v. Redding (2009) in which Justice Ginsburg was particularly outraged by Justice Stephen Breyer’s inability to realize the “traumatic effect that an adolescent girl would experience when forced to strip down to her underclothes in front of school administrators” Id. at 448.  Though Ginsburg’s reports are anecdotal, O’Connor reports that women judges in Australia report that their qualifications are questioned more frequently than those of their male colleagues and that Canadian women judges reveal they are more likely than men to have their objectivity challenged Id. at 449.

[1] Jennifer Peresie found that in sex discrimination cases, a woman serving on a three-judge appellate panel increased the likelihood of founding in favor of the plaintiff. However, the authors of “Untangling the Causal Effects of Sex on Judging” found that women’s influences on the judiciary are found only in sex discrimination cases (no other types of cases that have been studied show an impact).

Source Citation: O’Connor, Karen. “Judging Alone: Reflections on the Importance of Women on the Court.” Politics & Gender, 2010: 441-452.


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