Top 10 Reasons the USA Needs An All-Female Supreme Court
The US Supreme Court is one of the most respected institutions in the world. A group of some of the leading legal minds ever to have existed work together to set precedents that will bind all US Citizens for years to come.
As position filled for life; vacancies in the Supreme Court become available extremely rarely and as such are much coveted. Justice Ruth Bader Ginsburg, the second (and currently senior woman) to serve on the Supreme Court has said that there will only be enough women on the bench of the Supreme Court when all 9 vacancies are filled by women.
Is Ruth Bader Ginsburg correct? Is there merit in her statement or is the statement part of an irrational feminist campaign to evict men from all aspects of modern life, after all, prior to her appointment to the Supreme Court Justice Ginsburg was a prominent advocate for women’s rights. Surely, it can be argued, an all female supreme court would be every bit as egregiously sexist as an all male court.
With that in mind here is our list of the top 10 reasons why the US needs an all female Supreme Court.
The Supreme Court Has Been All Male For Most Of Its History
The Supreme Court of the United States was established in 1789 to perform the judicial functions as the highest federal court in the land. It has extremely broad jurisdiction which covers appeals from all federal court and over any state court decisions that interpret federal law. The Supreme Court also acts as a constitutional court, allowing it to make final decisions on matters of interpretation of the constitution of the United States. The subject matter of Supreme Court decisions impacts on women every bit as much as it does on men.
The Court is made up of nine justices who are nominated to their positon by the President but may only take their seat once confirmed by the Senate. The number of Justices in the Court was originally set at 6 but this increased over time as the size of the country increased until the current total of 9 was reached. Until relatively recently the Supreme Court was not in any way representative of the population of the United States and most Justices have been white males. It was only in 1981, when Ronald Regan appointed Sandra Day O’Connor as a Supreme Court Justice that women were finally represented in the highest Court of the land. Even today only 3 out of 9 Justices are female (Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) with a total of only 4 women having served.
This situation is, quite frankly, appalling, four women in more than 200 years! It is surely not possible for a Court to claim a mandate to represent and judge all Americans when it is not representative of the society it claims to serve. Appointing women Justices to all vacancies as they become available will go some way towards redressing the balance.
Even When Women Were Appointed To The Court They Have Been In The Minority
Prior to the appointment of Sandra Day O’Connor there were several attempts to appoint women to the Supreme Court. In 1930 the Christian Science Monitor urged President Hoover to appoint Florence E. A or Mabel Walker Willebrandt, both senior jurists with Florence E. Allen being a Ohio justice and Mabel Walker Willebrandt an assistant attorney general. Florence E. Allen was later appointed to the Court of Appeals for the Sixth Circuit by President FD Roosevelt. President Truman, who considered making a female appointment, was told that it would inhibit the male judges in their deliberations. In 1971, 10 years before the appointment of Sandra Day O’Connor President Nixon considered appointing Mildred Lillie but she was not sufficiently qualified.
Sandra Day O’Connor was appointed in 1981 and served as the only woman in a panel of nine judges until Ruth Bader Ginsburg was appointed in 1993. In 2005, when Sandra Day O’Connor retired she was not replaced by a woman and so the Supreme Court was again left with only one woman out of a total of 9 Justices. (It is of note that President Bush attempted to nominate a female replacement but his chosen candidate, Harriet Miers, did not have sufficient support in the Senate). This position was somewhat improved in 2009 when another woman, Sonia Sotomayor was appointed to a vacant seat and in 2010 Elena Kagan joined the panel. The Supreme Court is now 1/3 female but this is still a minority representation.
Traditional Attitudes Were That Women Were Too Delicate And Stupid To Practice Law
American women have fought to practice law since the early 1870s with the first women admitted to the bar in Utah in 1872 and in 1880 a woman was permitted to argue a case being heard by the Supreme Court.
Nevertheless women had to fight against misogynistic attitudes that prevented their applications from being taken seriously. This attitude was exemplified by the decision of the Wisconsin Supreme Court when it denied a female applicant, Lavina Goodell, admission to the bar on the basis that women were not suited to the law and that the ‘habitual presence of women’ in courtrooms where subjects such as bastardy and rape were likely to be discussed would ‘relax the public sense of decency and propriety’.
In 1878 a Californian woman, Clara Shortridge Folz successfully lobbied for admission to the bar only to be denied admission to the state law college on the basis that she would ‘distract the attention of the male students’. She had to gain permission from the State Supreme Court in order to be permitted entry. It was generally felt that women would not be able adequately to represent their clients and that their paramount destiny was to be wives and mothers.
These attitudes may seem, to the right thinking person, to be unacceptable and outmoded but they are not extinct event today. The remnants of these paternalistic views can still be seen in the judicial system to this day.
The Law Is Still An Unequal Employer
Sandra Day O’Connor, when speaking of the challenges faced by women in the law stated that women are required to commit twice as much time as their husbands to traditional wife-work such as child rearing and housekeeping. The effect of this is that many women have had to choose between a career and family leaving competent women either to drop out of the profession or scale back on their commitment to their work once they start their family.
By 2013, following decades of purported equality only approximately 33% of lawyers (and only 1 in 5 equity partners) were women and women’s salaries average about 80% of male salaries for the same position. Less than 25% of Federal judicial positions and 30% of State judicial positions are currently held by women. At this rate it will be more than another lifetime before women achieve true equality in the law. Any motivated, intelligent, driven and ambitious young woman on her way to college and looking for a career in which to rise to the top would be wise to avoid the law and choose a career path where the contribution of women is valued and accepted.
Appointing an all female Supreme Court will allow law firms and the women and men who work in them to see that the female contribution to the law is every bit as valuable and valid as that of men.
Appointing Women Will Combat The Influence Of The ‘Old Boy’ Clubs’
The law, as a profession is, to a great extent, dominated by a network of old boy’s clubs which either directly or indirectly influence the appointment of people to the judiciary. Women are, typically, excluded from these networks meaning that a mediocre male candidate will have better opportunities than an excellent female when being considered for the same role.
Employees of the Bush administration working on federal judicial appointments noticed the same effect; while qualified women tended to have spectacular educational results and good relevant experience for the open positions they applied to however, the male candidates for the same positions were more likely to have stronger political connections. This tension makes it harder for women to succeed.
Effectively, this is a vicious cycle. While men remain in the majority other men will network with them and the male establishment will remain entrenched in the US legal system. The more women there are appointed to the judiciary the more likely it is that women lower down in the hierarchy will be in a position to challenge the current gender bias of the old boy’s club.
Many Male Lawyers And Jurists Exhibit Unintentional Gender Bias
Most people who are asked would say that they are able to related to people, in their professional lives, in an entirely gender neutral manner. This is, however, sadly, not the case. A 1980 review of the New Jersey court system found that there was significant gender bias exhibited within the New Jersey appellate system. We would all like to think that attitudes have moved on since the 1980s but a similar review of the Court of Appeals for the 9th Circuit in the 1990s found that bias did exist. In addition to the problems women faced with regard to access to political influence and the demands of family life women were also treated unprofessionally and inappropriately in the court room.
This bias can range from women being addressed by their name as opposed to their honorific title or even derogatory terms such as ‘honey’ to more subtle but intensely undermining bias. Male judges have been noted as having a tendency (whether intentional or unintentional) to pay more attention to male attorneys. 7% of all female judges and 50% of female lawyers report hearing derogatory comments about the competency of female judges compared with 1% of male judges. Female judges also report receiving less respect from attorneys (both male and female) than their male colleagues.
These biases have a real impact on the quality of justice handed down; female witnesses and litigants are often found to be less credible than male. Women are often held to a higher standard of behavior than men with behavior in women being deemed unreasonable when the same behavior would be considered reasonable had it been perpetrated by a man.
Male Justices Have A Blind Spot When It Comes To Women’s Issues
Ruth Bader Ginsburg (who has an excellent working relationship with all of her colleagues on the Supreme Court) has herself said that her male colleagues have a blind spot when it comes to women’s issues and that they sometimes do not understand the full ramifications of their decisions on the lives of women. This comment arose in the wake of the controversial ‘Hobby Lobby’ decision which permitted employers to refuse to cover the costs of contraceptives for their female employees for religious purposes.
These blind spots can have real, and dangerous, implications, particularly in custody and domestic violence cases. This is particularly so when assessing the rationality, or otherwise, of a domestic violence sufferer who has snapped and taken retribution. Such victims often come across as unstable and their very act of complaining about abuse can make them appear ‘unfriendly’ to a custody judge. Similarly a father who is fighting for custody can appear as both a stable and engaged parent as opposed to a controlling partner.
In one case argued before the Supreme Court (at a time when there was just one female judge) the male justices had a hard time understanding how humiliating a strip search, in the absence of parental support, would have been for a young 13 year old girl. Ruth Bader Ginsburg pointed out that the rest of the bench had never been a 13 year old girl and the pressures and embarrassments of the men’s locker room are very different to that of the women’s
Perhaps most worryingly there is evidence that many male judges still believe that rape victims must have done something to provoke the attack and this validation of the widespread practice of victim blaming for this particular crime leads to the continued existence of this perception in society at large.
One Or Two Women Should Not Have To Answer For A Majority Of Their Sex
After Sandra Day O’Connor retired from the Supreme Court, Ruth Bader Ginsburg explained that being the lone woman on the court made her feel as though she was answering for her entire sex. This puts a significant amount of pressure on one (or two) people to explain the problems and challenges of a multitude of people and prevents a true nuanced and balanced interpretation from being offered.
There is also the danger that, even in an institution as august as the Supreme Court, that a single voice will not be granted the weight it should have. Ina 2007 case before the Supreme Court a woman who had worked at a company for 19 years complained that her pay was not at parity with men of equivalent (or lower) seniority. Ruth Bader Ginsburg felt that the male justices simply did not understand how difficult it was for women in the workplace or the discrimination they faced on a daily basis. She explained that there are times, in conference at court, when she will make a point but it will not be considered until a (male) colleague raises it again.
Ruth Bader Ginsburg has suffered severe medical issues but has never missed a day in the Court, in part because of her status as a woman and the need for women’s views to be heard and to ensure that people knew that the court is not an all male panel. She also expressed concern at, even as late as the 2000’s, the Court being seen as a place where women were in the minority, a token presence.
Appointing Capable Women To The Highest Offices In The Land Will Combat Discrimination
This institutional sexism demonstrated in the points above is appalling and has no place in a modern nation. Filling all vacancies on the Supreme Court with high caliber female candidates would show exactly how outdated this entrenched bias is and start to go some way towards correcting it.
This viewpoint is endorsed by a 2013 review which found that many of the problems identified in the reviews of the 1990s still exist and that for women to want to enter the legal profession they have to see that all the options available to men can also be accessed by women. Appointing women to senior positions, the report claims, would both a real and a symbolic benefit to women.
Our courts, both criminal and civil, perform a vital role in society and it is important that they are seen to be legitimate in the way in which they come to their decisions. If half of all Americans feel that the courts are out of touch and discriminate (even unintentionally) against women then there is likely to be a dilution of the respect in which all courts, and their decisions, are held. This has potentially very worrying ramifications for society. It can lead, at its worst, to female victims of domestic violence or crimes of sexual assault refraining from seeking assistance and redress.
It is noteworthy that where claims of sex discrimination and harassment come before the court female judges are more likely to find in favor of the plaintiff and male judges are more likely to view them favorably when there is a woman on the panel.
Ruth Bader Ginsburg has been a pioneer for women’s rights throughout her life. An eloquent speaker, she has, at times, been the lone woman on the bench and has found it challenging. Her main concern is that, with a minority of women in senior judicial positions, young women will not feel that the law is a career that is open to them.
While serving as the only woman on the bench she said she expected to see a Supreme Court with three or four women serving during her lifetime. That has, indeed, come to pass with the additions of Sonia Sotomayor and Elena Kagan. She has explained that, now the perception is that women are on the bench to stay, that there will be enough women on the Supreme Court, when there are nine. She justified this provocative statement by explaining that no questions were raised when there were nine men serving on the bench.
So is Ruth Bader Ginsburg right, should there be 9 women on the Supreme Court? She is certainly an influential voice and extremely popular with young women throughout the US but opinions are very mixed and she is often dismissed as a commie/lefty. Are her comments helpful or rational in this context?
While the Supreme Court has been completely male for most of its history, and remains overwhelmingly so today, this monopoly was questioned as early as the 1930s. Early attempts to put a woman on the bench were frustrated, not by a lack of political will but by the lack of competence of the candidates. As women progress in the law and more women reach senior positions in that profession it is likely that more will be qualified to aspire to the very highest position. They should attain it not by dint of their sex but by reason of their aptitude and qualifications.
More important than filing quotas is the need to ensure that gender bias is removed from the courts and their decisions and that women are given the same opportunities to network as their male peers. There should be no argument that women, if they are the best applicants for a position, should be appointed, if that leads to an all female Supreme Court in the future then that is something to celebrate.