It won’t change the court’s ideological focus, and law professors and political scientists continue to debate whether gender significantly affects legal interpretation. But those who welcome the change say it is important for representational reasons, and they say it could bolster public opinion of the court’s legitimacy.
“It’s remarkable to think that we had to wait until 2022 to achieve parity, but it’s also something to celebrate as a country,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “What we know from the research around institutions in general is that having the number of women who enable parity changes the conversation in the room, changes the perspectives that are raised and I suspect that will be also true for the Supreme Court.”
“For too long our government, our courts have not looked like America,” Biden said. “And I believe it is time that we have a court that reflects all the talent and greatness of our nation with a candidate with extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country in the highest level.”
O’Connor, confirmed in court in 1981, and Ginsburg, who joined 12 years later, were both fond of quoting Minnesota Supreme Court Justice Jeanne Coyne’s answer to whether men and women women see the law differently. At the end of the day, Coyne said, “a wise old man and a wise old woman come to the same conclusion.”
But O’Connor “also said repeatedly that she was very happy to be the first but didn’t want to be the last,” said Renee Knake Jefferson, who along with Hannah Brenner Johnson wrote, ” Shortlisted: Women in the Shadows of the Supreme Court.” “She took on this enormous burden of having to represent everything to everyone about the woman’s voice in court.”
When O’Connor learned after announcing her retirement that President George W. Bush planned to nominate a man to succeed him, she said she regretted seeing “the percentage of women on our court drop by 50 percent.” (O’Connor, 91, retired from public life in 2018 after revealing she had been diagnosed with the early stages of Alzheimer’s-type dementia.)
Graves noted that during the period Ginsburg was the only woman on the court — from O’Connor’s retirement in January 2006 to the confirmation of Judge Sonia Sotomayor in the summer of 2009 — that “you saw some of his deepest dissents”.
Among them was the court’s 5 to 4 decision in 2007 in Ledbetter vs. Goodyear, in which the court said a tire factory manager waited too long to take legal action after uncovering pay discrimination that began early in her career. Ginsburg read his dissent from the bench to emphasize his disagreement and based his opinion in part on his own experience.
“Every woman my age had a Lilly Ledbetter story,” Ginsburg said in a later interview, adding that you can’t expect a woman in a non-traditional job to complain the first time she thinks she is being discriminated against. “The only thing she doesn’t want to do is rock the boat, become known as a complainer.” Ginsburg called on Congress to make it clear in law that lawsuits like Ledbetter’s should be allowed, and he did.
It shouldn’t be surprising that the judges combine law and experience, Graves said.
“Future Judge Jackson now has quite a lengthy file that you can look at to see how carefully she follows the law and applies it to the facts,” Graves said. “But we also know that Supreme Court justices are not robots and they also bring their life experiences and perspectives to the table. Whether they can say it or not, I can say it.
During Jackson’s confirmation hearing before the United States Court of Appeals for the DC Circuit, a Republican senator said Democrats had been very strong on the importance of diversity on the bench and asked if the race was a factor in his case assessment.
Jackson said no. But she pointed to other parts of her background — as a trial judge, for example — that could shed light on her service.
“It’s kind of like the Oliver Wendell Holmes quote that the life of law isn’t logic, it’s experience,” Jackson said. “So I lived life in a way maybe different from some of my colleagues because of who I am, and that could be valuable.”
If confirmed, Jackson, 51, would join Sotomayor, 67, Elena Kagan, 61, and Amy Coney Barrett, 50. Supreme Court.
Sotomayor and Kagan, both chosen by President Barack Obama, make up the court’s diminished left, alongside retired judge Stephen G. Breyer.
Barrett, nominated by President Donald Trump to replace Ginsburg, is part of the court’s resurgent conservative supermajority. Her nomination faced opposition from liberal women’s groups, including Graves’, due to the proximity of the 2020 presidential election and because she was the ideological opposite of Ginsburg, the woman whom she would replace.
“Women lawyers are not fungible,” Graves said at the time.
But Barrett’s confirmation was seen as a breakthrough by Republicans because she was different from the women who had come before her.
“This is the first time in American history that we’ve named a woman who is unapologetically pro-life and embraces her faith without apology, and she’s going to court,” said Sen. Lindsey O. Graham (RS.C .), who at the time was chairman of the Senate Judiciary Committee.
Barrett sat in the High Court for just 16 months, and there were few cases in the court resolving hot-button cases in which she, Sotomayor, Kagan found common ground.
But more than ideology is in the mix, when more women from diverse backgrounds are included.
Kagan had never been a judge before joining the court in 2010, and she and Barrett largely had academic careers in law — Kagan, Harvard Law School’s first female dean, Barrett a professor at her alma mater, Our Lady Law School.
Jackson would be the court’s first public defender, Sotomayor was a prosecutor. She and Jackson are the only ones with extensive experience as trial judges.
Sotomayor is the court’s first Latina, Jackson would be the first black female judge. Barrett is a devout Catholic; Sotomayor a non-observant. Kagan never married, Sotomayor is divorced, Jackson is part of an interracial marriage.
Of Barrett’s seven children, two were adopted from Haiti and one has special needs.
That kind of diversity among life experiences will be valuable, said Jefferson, who is a law professor at the University of Houston.
“We will finally have a more accurate, though not entirely accurate, representation of women in this country” if Jackson is confirmed, she said.
“The nation will see that this cohort of women varies in their political outlook, their philosophy of how to decide cases as judges,” Jefferson said. “So I think it’s important, as a matter of institutional legitimacy, that the Supreme Court more accurately reflect the public it serves.”
One area where the increase in the number of female judges has not translated into change is the number of female lawyers appearing before the courts. Biden’s lead appellate attorney, Solicitor General Elizabeth B. Prelogar, is a regular attendee there, but a recent study by Bloomberg Law found that the number of female attorneys in court rarely exceeds 20%.
Trump’s White House and Republican senators touted Barrett’s status as a mother of young children as a selling point during her confirmation. It caused some awkward moments, like when Sen. John Neely Kennedy (R-La.) asked who did the family laundry.
Barrett laughed it off. But during a recent appearance at Notre Dame, when asked by a speaker in the audience how she balances family life and working as the only justice with school-aged children, she was quick to correct .
She replied that she was the only one women justice with children. Judge Brett M. Kavanaugh has children, and Chief Justice John G. Roberts Jr.’s children weren’t even of school age when he was confirmed.
Then she pointed out the kind of co-parenting that Ginsburg, who died in 2020, had long advocated. “Luckily my husband works from home so he has a bit more flexibility,” she told the interviewer.
Jackson dedicated a lecture on women and the law at the University of Georgia to balancing family and career. Among other things, she said she gave up jobs at major law firms because she found the demand for billable hours incompatible with her outlook on family life.
Women nominees shouldn’t be forced to answer such questions, Jefferson said. Or maybe we should also ask the fathers.
“The dialogues are changing, with more women taking on these roles and being more willing to be open about how they negotiate the professional and the personal,” Jefferson said.
“I think we all assume that men don’t have to talk about the fracture and who’s in charge of it, because it happens so naturally for them.”