Aug. 26 is Women’s Equality Day, the anniversary of the passage of the 19th Amendment giving women the vote in 1920. As long ago as 1952, pollsters found a gender gap in how men and women vote, and the difference grew to serious proportions starting in 1984. Women first unambiguously determined the winner of a presidential election in 2012.
Do women vote differently when they have one of the rarest commodities in American politics, a vote at the Supreme Court? Justice Sandra Day O’Connor was displeased with the suggestion that she judged in a “different voice.” She harshly disavowed law professor Suzanna Sherry’s much-cited 1986 article professing to find a feminine jurisprudence in O’Connor’s body of opinions. In a much-discussed lecture in 1991, O’Connor said, “asking whether women attorneys speak with ‘a different voice’ than men do is a question that is both dangerous and unanswerable.” The second woman to be elevated to the court, Justice Ruth Bader Ginsburg, admitted that she always “fudged” the question. Her basic liberal principles were sufficient for most of the decisions she made.
But my examination of both justices’ lives and work, in Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, leaves no room for fudging. They judged in a different voice. The law is not different for men and for women, and Justices O’Connor and Ginsburg were not morally different from their peers. But they had life experiences as women. And their lives made their work different.
O’Connor worked for no salary in order to have a law job at all at the outset of her career. Before she took her unpaid job, a fancy law firm had offered her a secretarial job. In ordering the gender integration of a Mississippi nursing school, shortly after she ascended to the Supreme Court bench, she noted that the almost entirely female nursing profession didn’t claim such great wages. Only when both men and women were treated as equal applicants did the salary gap start to erode. When the question of whether a law firm could adopt a “no girls allowed” policy for partnership came before the Supreme Court, her law clerk recommended ducking the case, because the lower courts had not split on the legal issue, as is often the case when the Supreme Court intervenes. That’s a perfectly legitimate position for a court with a lot of cases to decide, but O’Connor refused to wait to hear the case. The disappointed female associate would get her partnership without further delay.
Over 25 years, O’Connor decided a lot of cases about women. O’Connor’s record on women’s issues is by far the most liberal of all the bodies of law she created in her long career, and much more liberal than the records of the other Reagan appointees, Justices Antonin Scalia and Anthony Kennedy.
Ginsburg previously worked on the Women’s Rights Project of the American Civil Liberties Union, so her votes on civil rights cases are less surprising and less easy to characterize as driven by her own experience of gender. But transcripts of the oral arguments in women’s cases that came before her reveal that she, too, brought a woman’s understanding to the job of judging. Just weeks after she joined the Supreme Court, she was hearing oral argument in a sexual harassment case in which the boss had told the plaintiff: “You’re a woman, what do you know?” Justice John Paul Stevens began joking with the defendant’s lawyer about an employer who might say “You’re a man, what do you know?” since, Stevens admitted, his wife often said such things to him. Ginsburg cut him off. “It’s hard to transpose like that,” Ginsburg interrupted briskly. “ ‘You’re a woman, what do you know?’ means something different than ‘You’re a man, what do you know?’ ” The guys in the Supreme Court might be yukking it up about how their wives henpecked them, but Ginsburg knew what the question meant to a woman trying to do her job in a world in which men held all the power. Consider, she continued, things that were once considered normal, like Ladies’ Days in law school classes. “Why even learned professors thought that was OK,” she reminisced, thinking back to her treatment at law school. “What about the woman who finds this terribly annoying, yet she outperforms everyone else anyway?”
Decades later, she was still fighting the battle against locker-room humor at oral argument. When young teenager Savana Redding came to the Supreme Court to appeal her school’s strip-searching her, the oral argument was inexplicably merry, to Ginsburg’s way of thinking. While the ever-boyish Justice Stephen Breyer relished a walk down memory lane to happy naked days in the locker room and the justices had good fun joking about what he kept in his underwear, Ginsburg angrily tried to get her brethren to understand how a young girl would react to being told to pull out her panties and shake. “It wasn’t just that they were stripped to their underwear!” she interrupted. “They were asked to shake their bra out, to stretch the top of their pants and shake that out!” After the argument, she took the unusual step of giving an interview to USA Today complaining that her colleagues didn’t get what such a demand would mean to a sensitive 13-year-old girl. What’s the difference? What is allowed to be said in arguments in the highest court in the land makes a difference in how women are perceived and treated, even if a particular case has nothing to do with them.
As discrimination lessens, women’s lives begin to resemble the lives of the dominant group, and the difference begins to fade. Thus, Justice Elena Kagan, former dean of Harvard Law School and solicitor general of the United States, would be expected to manifest less obvious differences and draw less on her different experience of life.
Sooner or later, someone was going to admit the obvious. It turned out to be Sonia Sotomayor, daughter of immigrants from Puerto Rico and at the time a federal appeals court judge. “I would hope,” she said in a speech in 2001, “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Her critics made that statement into a weapon during her confirmation hearings, until, at last, she repudiated her own words, calling it “a rhetorical flourish that fell flat.”
Although she took the statement back, Justice Sotomayor quickly turned out to be the change she was seeking. Four years after she took her seat on the Supreme Court, she wrote the story of her experience growing up as a poor Puerto Rican immigrant child in the Bronx. The book was a best-seller, and Sotomayor became a genuine celebrity. In 2014 she wrote a long and impassioned dissent from her white male colleague Chief Justice John Roberts’ opinion allowing a state to ban the use of affirmative action. A wise Latina judge, she explained how she would rule differently from that white man: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’ regardless of how many generations her family has been in the country,” she wrote. “Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.”
What’s the difference? During the flap over Sotomayor’s confirmation, an interviewer asked Ginsburg if the results might be different in discrimination cases if more women sat on the Supreme Court. Ginsburg finally stopped fudging. “I think for the most part, yes,” she said. “I would suspect that, because the women will relate to their own experiences.”