O Brother, Where Art Thou?

In Griswold v. Connecticut, Justice Hugo Black began his opinion with “I agree with my Brother Stewart’s dissenting opinion.” Throughout the opinion, Black used the term “brother” over 15 times when referring to his colleagues. This practice was completely normal until Sandra Day O’Connor joined the Court. Josh Blackman, Co-Founder of the Harlan Institute, told the HPR, “It’s rumor that when Justice O’Connor came on the Court, she didn’t like the practice.” Regardless of whether this practice is significant or not, it serves as a reminder that our Supreme Court operated for nearly 200 years without a woman on the bench. While definitive effects of women’s presence on the high court are hard to identify because only four women have sat on its bench, the four pioneers have changed the culture of the Court and may have had some influence on legal issues important to women.
History of Women on the Court
During his 1980 presidential campaign, President Reagan promised that if given the chance, he would appoint a woman to the high court. When moderate Potter Stewart stepped off the Court a year later, Reagan nominated Sandra Day O’Connor, a judge who had served for less than two years on the Arizona Court of Appeals and was confirmed by the Senate by a 99-0 vote. Ryan Owens, professor of government at Harvard, explained, “Reagan was concerned with fulfilling campaign promise and selecting someone who would pay attention to social issues and be a reliably conservative vote with abortion.” As O’Connor evolved into a swing vote on the Court, her male brothers were forced to follow her decisions.
O’ Connor complained that she was lonely as the only woman on the Court. President Clinton nominated Ruth Bader Ginsburg in 1993, and the Senate confirmed her easily. From then until 2005, Justices O’Connor and Ginsburg served on the Court together. Jeffrey Toobin, legal analyst for CNN and the New Yorker, wrote about Court employees confusing the women in his book The Nine. Toobin shared how they would wear shirts reading “I’m Sandra, not Ruth” and “I’m Ruth, not Sandra.” Blackman noted that Ginsburg was a champion fighting for women’s rights. “If you read her opinions, you’ll see the strong perspective of a female coming through.”
When O’Connor left in 2005, Ginsburg also lamented being the only woman on the high court In an interview with Emily Bazelon of the New York Times in 2010, Ginsburg said, “My basic concern about being all alone was the public got the wrong perception of the court. It matters for women to be there at the conference table to be doing everything that the court does.” To Justice Ginsburg’s delight, Justices Sotomayor and Kagan recently joined her. While O’Connor came through with unanimous confirmation and Ginsburg was close, Sotomayor and Kagan faced partisan confirmation votes of 68-31 and 63-37, respectively. These contentious confirmation votes and the fact that female Justices are no longer being confused for one another suggest that women serving on the Court are no longer a novelty.
Internal Court Dynamics
The introduction of women to the High Court not only changed the dynamics between the justices, but it also influenced life in the administrative offices. Kathy Tyce of the Clerk’s Office at the Supreme Court told the HPR that before Justice O’Connor came on the Court, very few women were a part of the administration. When Justice O’Connor arrived, she started aerobics classes for the female clerks and women in various offices of the Court; she made them feel welcome.
Since O’Connor came on the Court, more women have joined the Court’s administrative offices. Pamela Talkin, the Marshal of the United States Supreme Court, became the first woman to hold the position when she was appointed in 2001. In cases of original jurisdiction, the Court appoints a special master to provide a preliminary ruling on the case facts. In 2008, the Court appointed the first female special master for North Carolina v. South Carolina. It is hard to imagine that these historic appointments would have been made without a woman sitting on the High Court bench.
Differences in Decision Making
In their study, “Untangling the Causal Effects of Sex on Judging,” Christina L. Boyd, Lee Epstein and Andrew D. Martin identified four effects of sex on judging. Females could provide a different voice or worldview, represent the interests of women on the court, have expertise or experience on an issue, or undergo the same training and job experience as men. Despite these perceived effects, however, they found that female judges rule like male judges, except in cases related to sex discrimination. Furthermore, in cases regarding sex discrimination that come before a panel of judges, the presence of a woman judge affects the way the entire panel rules. Panels with a female judge rule differently than panels with no female judge. It is important to note that these studies were done at the Court of Appeals level: Lee Epstein, one of the authors of the study and a professor at Northwestern University School of Law, told the HPR, “With so few data points, it’s hard to know specifically how women on the Supreme Court have ruled in comparison to their male counterparts.”
Looking Forward
Although opinions handed down by the Supreme Court no longer bear the stamp of “Brother,” collegiality has been maintained with terms like “colleague” and “fellow Justice.” Epstein maintains that little can be said about what would happen if the number of women on the bench were to increase. “If anything, we’ll have more data points to study and be able to know more,” she told the HPR. The changes that women have made to the Supreme Court may be subtle and hard to quantify, but their presence within the Court and their ability to inspire young women around the country are surely significant.
Medha Gargeya ’14 is a Contributing Writer