Reflections on Our First Two Female Supreme Court Justices

Posted in: Reproductive Law

The loss of Justice Ruth Bader Ginsburg is devastating. Period. She was an icon, of course. But she also was the bridge from the first, solo female Supreme Court Justice to a Court with three at once. History is no straight line, and so the first could have been a token for decades or even forever. Justice Ginsburg signaled that would not happen.

I had the great good fortune to clerk for Justice Sandra Day O’Connor, the first female United States Supreme Court Justice. There have been smart, enterprising, and strong women in the United States since its founding, but a woman has been on the Supreme Court only since September 25, 1981. This time next year will be the 40th Anniversary of adding a female to the highest court in the land.

Justice O’Connor was the only one for nearly a dozen years. The world heralded her as the “first female Justice,” which meant she received piles of invitations to every imaginable event around the globe. But that was not her self-awareness. She was a Justice in the same way that she had been an Arizona Supreme Court Justice and lawmaker, lawyer, and law student before that: super smart, determined, and, frankly, no time for nonsense. Being the first and only woman placed burdens on her no male Justice had ever carried. Yet, she accepted every important invitation she could with grace, in part because she felt it was her obligation to the country and the Court.

It was inevitable that O’Connor would become the most powerful member of the Court as the so-called “swing vote.” The product of a western ranch upbringing, she has a backbone of steel and the character of a skilled ambassador, who is ever professional and civil, but who always has a plan. O’Connor was the swing vote, because she knew how to wield power with a smile to form coalitions on specific issues. It was certainly not because she couldn’t make up her mind, as some who have underestimated her have charged!

O’Connor was thrilled when Ruth Bader Ginsburg joined her and the other Justices, in part because those invitations could be shared. I remember her musing that it was high time for someone else to help carry the mantle of “a woman on the Supreme Court,” with a wry smile. But it wasn’t just the external pressures that made Ginsburg a welcome addition. It was also that O’Connor would no longer be the one woman who would understand things through a woman’s experience. As Linda Hirshman describes so well in, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, these two pioneers at the Court came with a legacy of being discriminated against in the legal world, because they were female. They went to sterling law schools, were high achievers, and essentially had been told to stand aside for the men to do the real legal work. Thank God neither one listened, or actually cared that others underestimated them. They simply moved forward.

Before Ginsburg joined the Court, O’Connor had been supportive of women’s rights in employment and rights to abortion, and so it was no surprise when she signed onto Justice Ginsburg’s memorable and groundbreaking opinion holding that the Virginia Military Institute (“VMI”) could not exclude women, even if the women’s facility was roughly comparable to the men’s, in U.S. v. Virginia. In effect, they joined forces to declare that “separate but equal” can’t justify gender discrimination anymore than it can legitimate racial discrimination.

With their clear-eyed understanding of the mechanisms of gender discrimination, they were a powerful force intent on staring it down, and they brought their male counterparts with them. In the VMI case, Justices O’Connor, Stevens, Kennedy, Souter, and Breyer joined Ginsburg’s majority opinion. Chief Justice Rehnquist concurred in the judgment, and only Scalia dissented. (Thomas took no part in the case.)

O’Connor had a background of extraordinary success in the Arizona government and courts, and, therefore, set an example for girls and women everywhere, particularly once she sat on the highest Court in the land. The fact that she was female, though, was beside the point for her. She was there, and she wasn’t giving air time to those who thought otherwise, or had an opinion on her gender. Essentially, her attitude during her legal career has been, “Watch this.”

Ginsburg, in contrast, was an essential part of the movement for women’s rights with her positions at the ACLU and elsewhere. Her legal career was aimed at securing, expanding, and teaching about women’s rights. That made her appointment an even more explicit endorsement of the empowerment of women in our culture.

Returning to my earlier note that history is no straight line, though, it took even longer for the third woman to be appointed after Ginsburg joined the Court. While twelve years elapsed from O’Connor’s to Ginsburg’s appointment, Justice Sonia Sotomayor was not elevated for 16 years, and only after Justice O’Connor retired. Finally, when Justice Kagan was appointed one year after Sotomayor, we had three women on the Court at once, a full third. Not terrible for the majority gender, but, honestly, we can do better.

Justice Ginsburg Reflected Large Majorities of the American Public on Reproductive Rights

With the retirement of Justice O’Connor and now the passing of Justice Ginsburg, we have lost valuable allies in the fight for women’s reproductive rights. The loss of Justice Ginsburg profoundly impacts women’s capacity to control their own bodies. We lose a Justice who voted her conscience, and that conscience was in sync with a majority of the American people on issues deeply connected to the female gender: the right to privacy in particular.

There is an active movement in the federal government to not only wipe out the right to abortion, but also to hobble rights to obtain contraception. Groups like the ironically entitled Alliance Defending Freedom see Griswold v. Connecticut as the dangerous precursor to Roe v. Wade. They oppose the right to privacy, itself. These are the folks urging President Trump to rush a replacement for Ginsburg with so few days left before the election.

Yet, the American public needs to understand the facts, and what is at stake if Ginsburg is replaced by someone who embraces the minority views on the right to privacy, including abortion and contraception.

Abortion. The right to choose an abortion, which Ginsburg staunchly supported, is embraced by 6 in 10 Americans, according to the Pew Research Center. To be sure, there is general consensus that abortion should have limits, but the notion that the American people favor reversing Roe v. Wade is just wrong. Fewer than 40% of Americans oppose abortion in any or all circumstances.

Contraception. According to the Guttmacher Institute, over 99% of women who have ever had intercourse have used contraception. Among religious sexually experienced women, 99% of Catholic and Protestant women have used contraception. Ginsburg voted reliably for the right to contraception including the right of female employees to have access to contraception in their benefit plans. The Supreme Court permitted the Religious Freedom Restoration Act to trump women’s rights to contraception in Burwell v. Hobby Lobby, and Ginsburg wrote a ringing dissent in the case, quoting this line from Planned Parenthood of Southeastern Pa. v. Casey: “‘The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.’” In other words, women’s freedom rests squarely on their access to contraception. Blocking access to contraception means we all pay the price.

The fevered push by some conservatives to get Trump to name someone ASAP is partly fueled by the knowledge that the views they seek to cement at the Court are the views of only a minority of Americans. Replacing Ginsburg in a rush with a Federalist Society-selected individual with no lengthy and full public vetting guarantees not just that women’s rights to choose an abortion are on the chopping block; it also imperils the right to contraception.

The Senate and the President need to think long and hard before they replace Ginsburg on the fly with a woman (or man) who is a threat to abortion and contraception. Unless they really are intent on the vast majority of Americans sending them home for good.

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