The XX Factor: Slate women blog about politics, etc...

Justice Girls

A nice point, Emily, about the dangers of looking at Sandra Day O’Connor through pink-colored glasses. You’re right to say that there are heaps of women judges who don’t employ O’Connor’s Miz Fixit hospital-corners jurisprudential style. Ruth Bader Ginsburg included. But I don’t think that makes the corollary—that O’Connor’s approach had some uniquely female qualities—false. There’s been some interesting legal scholarship on the point, starting with an article by Suzanna Sherry in 1986, trying to link up O’Connor’s legal opinions to Carol Gilligan’s Different Voice paradigm of women as accommodating and problem-solving and “relational.”

Sherry’s premise has taken a beating in subsequent years, often from feminists pointing out that this kind of thinking is marginalizing to women and celebrates passivity and niceness in all the ways I probably did in my first post today. Needless to say, Ginsburg’s addition to the court also undermined the Sherry thesis. But I stand by my conviction that some of the qualities I most admire in O’Connor are qualities I largely associate with women. Doesn’t mean Ginsburg is manly by the way. Doesn’t mean O’Connor’s ability to foster agreement and forge deals wasn’t also informed by her time in the Arizona state legislature. But I do think—and O’Connor would hate me for writing this—you can’t separate her gender from her jurisprudence as neatly as you may like.