Constitution Day speaker: Gender matters on the court

Having women on the U.S. Supreme Court – something that never happened until 1981 – has changed the dynamic of court discussions and led justices to start listening to people with experiences different from their own, author and journalist Dahlia Lithwick told an IU Maurer School of Law audience Tuesday.

And having three women on the court since 2010 has taken change to a new level, she said, enabling Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan to express their own approach to justice in unique ways, unburdened by being a “woman’s voice” on the court.

Dahlia Lithwick speaks at the IU Maurer School of Law

Dahlia Lithwick speaks at the IU Maurer School of Law

“Three is a magic number,” she said. “When you put three women on a board, they start talking. Suddenly they don’t have to speak for all women.”

Lithwick, a senior editor at Slate who has written for The New York Times, Harper’s, The New Yorker and other publications, spoke to a full house in the law school’s Moot Court Room in a Constitution Day program sponsored by the school, the Office of the Provost, and the American Constitution Society. Constitution Day is observed every Sept. 17 to mark the signing of the U.S. Constitution.

The talk charted the history of women on the Supreme Court from Sandra Day O’Connor’s appointment to the present. While O’Connor received a great deal of attention as the first woman justice, Lithwick said, she fiercely resisted the idea that her legal reasoning was different from her male colleagues.’

Yet when O’Connor was asked her opinion on John Roberts’ appointment as chief justice, she said he was perfect for the job – except that he wasn’t a woman.

On gender and judging, Lithwick said, “We want to think it doesn’t matter except when it matters.”

Ginsburg joined the court in 1993, and for 13 years it was extraordinary to watch the contrast between the two women: O’Connor politically moderate and traditionally feminine in her approach, Ginsburg deeply serious and a longtime advocate for legal rights of women. They were approximately the same age but “separated by an entire generation of feminism.”

Lithwick said O’Connor and Ginsburg agreed on only half of all decisions but on 90 percent of cases involving gender, a suggestion that their experience as women did make a difference.

She cited a study of three-judge panels in federal sex discrimination claims as stronger evidence that having female judges matters. When there was at least one female judge on a panel, researchers found, male judges were 15 percent more likely to cast their vote in favor of the women plaintiffs.

After O’Connor retired in 1996 to care for her ailing husband, Ginsburg became more outspoken as the court’s voice of female experience. Lithwick said Ginsburg truly took on that role with a 2009 case involving a school that strip-searched a 13-year-old girl suspected of possessing Advil.

“The male justices seemed to think this case was laugh-out-loud funny,” she said. During oral arguments, they made light-hearted comments about having to undress in school gym class. Ginsburg insisted it was serious and even told a newspaper reporter that the male justices seemed unable to comprehend the experiences of a teenage girl.

Lithwick said you can get a good idea of how having women on the court has produced change by comparing arguments from Griswold v. Connecticut, a 1965 case that legalized birth control, and the 2004 Hobby Lobby decision that struck down the contraceptive mandate in the Affordable Care Act.

In Griswold, she said, contraceptive methods were never named, and there was a sense that justices didn’t know what they were talking about. In Hobby Lobby, “you couldn’t listen without ‘IUD, IUD.’”

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