The Fairer Sex
What do we mean when we say we need more female justices?
O'Connor, for her part, has been one of the most vocal detractors of the "different voice" theory of judging. She has been clear that "there is simply no empirical evidence that gender differences lead to discernible differences in rendering judgment." Somewhat paradoxically, however, O'Connor does believe that the personal experiences of diverse jurists influence the views of their colleagues. She has written, for instance, of the influence that Justice Thurgood Marshall had on her worldview. In her 2003 book, The Majesty of the Law, O'Connor described how Marshall, through his tremendous gifts as a "raconteur," pushed his fellow justices to re-evaluate their own moral truths; how his experiences with racial discrimination offered a window into that world for his white colleagues. It wasn't necessarily that Marshall wrote in a different voice. It was that he was able—as Linda Greenhouse, my former colleague at the Supreme Court, has argued—to show his colleagues that they did not always know what they thought they knew about race.
History proves that you can be the most empathetic, open-minded, and sensitive jurist in all the world—and still be a complete dolt about gender. It's why liberal lion William Brennan could write so expansively about equality and fairness and justice while still refusing to hire female law clerks. It's why Ginsburg was denied a clerkship with the legendary judge Learned Hand. (He refused to hire her because he liked to use salty language.) A wonderful new book by Fred Strebeigh called Equal: Women Reshape American Law, is full of stories about well-meaning men who thought they knew what women needed and the women who showed them they were wrong.
When it comes time for Obama to appoint a new justice, he'll have an embarrassment of female talent to choose from: To name just a very few, potential candidates include appeals court judges like Diane Wood, Sonia Sotomayor, Kim McLane Wardlaw; his new solicitor general, Elena Kagan; gifted academics such as Stanford Law School's Kathleen Sullivan and Pamela Karlan; Michigan Gov. Jennifer Granholm; and private attorneys like Teresa Wynn Roseborough. Each of these women has a different story and a different voice, and nobody believes for a moment that they all think alike. It took a few years of Ginsburg and O'Connor to show us that if there is any such thing as a women's jurisprudence, it differs radically from woman to woman.
Still, beneath all the formal legal reasoning at the Supreme Court, there are the countless stories of casual influence: the female law clerks, the secretaries, and the family members whose experiences, like Marshall's, slowly taught insulated justices how much they needed to learn. It's long past time for women to influence the high court in more direct ways. Women who want Obama to push for gender balance at the Supreme Court need to remind him that fighting for gender diversity at the high court isn't just for show. The real point may be to tell.
A version of this article appears in this week's issue of Newsweek.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Sandra Day O'Connor by Mark Wilson/Getty Images.