The female justices begin to reflect on feminism.

The female justices begin to reflect on feminism.

The female justices begin to reflect on feminism.

The law, lawyers, and the court.
Feb. 6 2007 6:49 PM

Justice Girls

The female justices begin to reflect on feminism.

U.S. Supreme Court Justice Ruth Bader Ginsburg. Click image to expand.
Ruth Bader Ginsburg

It's not news that the Supreme Court justices are speaking to the press openly and often. But what's become truly fascinating this week is what the women there have to say: First we heard sitting Justice Ruth Bader Ginsburg recently telling USA Today's Joan Biskupic that she's "lonely" on the court without Sandra Day O'Connor. Then this week, former Justice O'Connor told Newsweek that she chose to retire rather than resign because had she lost her office at the High Court and her judicial duties, "maybe then she would be a nobody. 'I'd be on my own,'." as she put it.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Wait just a minute here. The most powerful woman on the federal bench is lonely, and her retired colleague is sticking around at the court because it's better than being alone? Since when do the most empowered women in America see themselves as a Patsy Cline song? No wonder the jokesters and parodists are hooting.

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It must be tempting to dismiss these expressions of loneliness and frustration from women who have achieved so much. Critics say it sounds like a lot of crying "victim" and bellyaching from two women who have no right to complain. Yet neither of these two women are complainers. Both have tended to be pretty close-mouthed about their struggles as women at the court, and neither has shown a tendency to bash their male colleagues. Indeed one of the most noteworthy aspects of the new O'Connor/Ginsburg revelations is that it's not just one woman saying all this on behalf of all womankind; it's two of them.

Last week at Suffolk University Law School, Ginsburg told students that she dislikes being "all alone on the court" after O'Connor's retirement, adding that her male colleagues lack "certain sensitivities." In her USA Today interview Ginsburg said that while O'Connor shared the bench, she bore no burden to be the court's only woman. The message was, as she said: "Here are two women. They don't look alike. They don't always vote alike. But here are two women." Now she worries that a woman justice is a "one-at-a-time curiosity, not the normal thing."

I've already opined on the merits of a bench that looks like America, and I leave it to the bloggers to decide whether Ginsburg's comments were improper. To be sure, she warned us, even before the Samuel Alito nomination, that she "would not like to be the only woman on the court" and that the worst part of being one of only a handful of women in law school in the 1950s was that "you felt like all eyes were on you. If you gave a poor answer in class, you felt like it would be viewed as indicative of all female students." Clarence Thomas has similarly expressed discomfort at being judged as an "only." I don't think Ginsburg is being unfair to her male colleagues, or to men in general, when she confesses that the all-eyes-upon-you pressure of being the only woman on the high court is isolating. I think she is being completely honest.

O'Connor's recent remarks are almost more disturbing than Ginsburg's. Remember, O'Connor has always played the tough cowgirl who seeks no special treatment for women. Yet suddenly she is confessing that she'd be all alone if she left the court building. And, according to Jan Crawford Greenburg's superb new reporting, O'Connor was effectively forced off the bench early by then-Chief Justice William H. Rehnquist. It seems that in the winter of 2005, after O'Connor had confided to Rehnquist that because her husband's Alzheimer's disease was advancing, she could not remain on the court indefinitely. The chief replied at the time, "We don't need two vacancies." And according to O'Connor, when Rehnquist decided to stay, despite his own terminal cancer, she was forced to either retire that spring or serve two more years. She hastily stepped down. According to Greenburg, "Rehnquist was unilaterally deciding both of their fates."

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There is something so jarringly 1957 at the heart of these new accounts: O'Connor departing to take care of her ill husband; O'Connor falling on her sword for the good of the country when the chief justice would not; O'Connor feeling strong-armed by her male boss to leave before she was ready. And now, at least according to Newsweek, we have an O'Connor at the prime of her career, at loose ends about what to do now that it seems her retirement was premature.

Indeed it's telling that while the male justices are speaking out on matters of doctrine and judicial method, the female justices and ex-justices are describing feeling torn and divided, publicly balancing their successes against their isolation, and feeling the pressure to speak for all women. I might add that putting the thoroughly unqualified Harriet Miers on the bench probably wouldn't have helped this. But while on the subject of Miers, it's worth pointing out that at her farewell party last week she was celebrated by the president, her boss, as a "comforter." Shwaaaa?

I wish we lived in a time when women justices and ex-justices spoke out only on matters of doctrine and judicial method as well. I'm guessing that both Ginsburg and O'Connor long for that day more than I do, and someday, when there have been dozens of generations of lacy jabots at the court, these confessions of not quite fitting in will become a thing of the past.

But it's probably no accident that both Ginsburg and O'Connor have waited until now to speak out so forcefully on what it means to be a woman at the high court—now, as the legal profession is twisting itself into pretzels over the numbers of women who are dropping out. These women pioneers may be worried not only about women and the Supreme Court, but rather about women and the law, or even women in the workplace in general. And O'Connor and Ginsburg may not, in the end, care all that much about whether there is one woman on the court or two. Their real concern may be the same anyone might have toward the end of a long career: that having women on the high court really mattered, that it meant something, and that the country is better for having had them.