In 1981, President Ronald Reagan nominated the first woman to the Supreme Court, Sandra Day O’Connor. And in 2010, President Barack Obama nominated the most recent female Supreme Court Justice, Elena Kagan. Between those two nominations, there have been only two other women to serve on the Court: Ruth Bader Ginsburg (since 1993) and Sonia Sotomayor (since 2009). To put that into the context of the history of the Supreme Court, there have been one hundred and twelve individuals to serve on the Court and only four of those justices have been female. Currently, the U.S. Supreme Court is composed of five men and three women justices. With Ruth Bader Ginsburg in her 80s, how much longer will there be three women on the bench?
During the presidential election cycle of 2016, one topic that sits simmering on the backburner is the appointment of new justices to the Court. One of the more lasting influences of any presidential administration is the appointment of Supreme Court justices. Presidents serve for a maximum of two four-year terms. Supreme Court justices serve for life. How do we put that information into a context that allows us to explore the dynamics of the court when looking at issues that relate to women? Where do we start? And what impact, if any, does gender have on the actions of the Court?
First and foremost, it helps to ask, “What is required of an individual selected for nomination to the nation’s highest court?” What credentials must one have to be considered a potential candidate for nomination? The answers to those questions are interesting with many, if not most Americans, not having any idea as to the requirements to sit on the Supreme Court. According to the U.S. Constitution, there are no qualifications stipulated for a Supreme Court justice. There are no age, sex, education, profession, or even native-born citizenship qualifications. And one does not have to be a lawyer; there is not a requirement that a nominee needs to be a law school graduate. The information relating to Supreme Court justices can be found in Article III of the U.S. Constitution:
Article III.
Section. 1.
The
judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation, which shall
not be diminished during their Continuance in Office.
That’s
it. No other qualifications exist in the Constitution. So if Article
III stipulates no requirements for the Supreme Court justices, why have
there only been four women selected to the Court? It’s a good question
to ask and it all boils down to precedence and preference.As noted in Article III, the Supreme Court is the only court that was established by the Constitution. Creation of the lower courts was left to the discretion of Congress. The drafters of the Constitution attempted to remove the Supreme Court justices from the whims of the electorate by making them presidential appointments. This is one of the reasons Supreme Court justices can hold their positions for life. They do not have to campaign and appeal to voters to keep their place on the court.
And Supreme Court justices haven’t always held law degrees. Part of the reason stems from the recognition that until well into the 19th century, law schools were extremely uncommon. The first school set up specifically to study and teach law was Litchfield Law School in 1784. Harvard and Yale established their programs in 1843 and Columbia University in 1858. But for most individuals practicing law during the 19th century, they became lawyers through “reading law.” One typically read law under the direction of another more experienced attorney.
Access to the Courts:
For women during the 19th and early 20th century, access to a legal education was extremely difficult. The first woman on record to receive a law degree in the United States was Ada Kepley, who received her degree from Union College of Law in Illinois in 1870. But even after receiving law degrees, the roadblocks continued to keep women from practicing law. Gender-based stereotypes and the legal status of married women made it difficult for women lawyers. An example of a gender-based stereotype affecting a woman attorney can be found in Wisconsin where Lavinia Goodell was denied admission to the state bar. She had been admitted to the bar in Rock County and practiced law in Janesville, Wisconsin. When she applied for permission to practice before the Wisconsin Supreme Court in 1875, her petition was denied. In his opinion, Chief Justice Edward Ryan noted:
“The
law of nature destines and qualifies the female sex for the bearing and
nurture of the children of our race and for the custody for the homes
of the world and their maintenance in love and honor. And all life-long
callings of women, inconsistent with these radical and sacred duties of
their sex, as is the profession of law, are departures from the order of
nature; and when voluntary, treason against it . . .
nature has tempered woman as little for the juridical conflicts of the
court room, as for the physical conflicts of the battle field. Womanhood
is moulded for gentler and better things.”
Myra
Bradwell had a similar experience in Illinois. Bradwell petitioned to be
admitted to the Illinois bar but her petition was denied because she
was a woman, and more importantly, a married woman. The bar noted that
married women could not make legal contracts on their own. The court
stated:
"the
applicant --"as a married woman would be bound neither by her express
contracts nor by those implied contracts which it is the policy of the
law to create between attorney and client."
Bradwell then appealed her decision to the Supreme Court in the case of Bradwell v. Illinois (1873) and the high Court also rejected her appeal. In Justice Bradley’s concurring opinion with the majority, he noted:
"Man
is, or should be, woman's protector and defender. The natural and
proper timidity and delicacy which belongs to the female sex unfits it
for many of the occupations of civil law. The domestic sphere is that
which properly belongs to the domain and functions of womanhood. The
harmony of interests which belong to the family institution is repugnant
to the idea of a woman adopting a distinct and independent career from
that of her husband. . . the paramount destiny and mission of woman are
to fulfill the noble and benign offices of wife and mother. This is the
law of the Creator. And the rules of civil society must be adapted to
the general constitution of things, and cannot be based upon exceptional
cases. . . it
is within the province of the legislature to decide that certain
professions shall be filled and discharged by men, and shall receive the
benefit of those energies and responsibilities, and that decision and
firmness which predominate in the sterner sex."
It
took a change to the laws in Illinois in 1871 before women could be
admitted to the Illinois bar. The legislation noted that “no person
shall be precluded or debarred from any occupation, profession or
employment (except military) on account of sex.” Women would continue to
face roadblocks to their participation in the legal field throughout
the 19th and 20th centuries.Even if women could practice law within their state, it did not mean that women could argue cases before the federal Supreme Court, which had in place admission rules preventing women from arguing a case before the court. Belva Lockwood attempted to secure the right to argue before the Court and on three separate occasions lobbied Congress to change the rules that prevented women from arguing in front of the Court. Finally, in 1879, she was sworn in as the first woman member of the U.S. Supreme Court bar and in 1879, she became the first woman lawyer to argue a case before the highest court in the land.
Often a precursor to appointment to the Supreme Court, the appointment of women to federal judgeships didn’t occur until 1925, after the ratification of the 19th amendment. And when women did receive positions on the court, it was often a court that many believed to be more appropriate for women: family and juvenile courts. It took until 1949 before a woman assumed a judgeship in a federal district court. The appointment of a woman of color to the D.C. Court of Appeals, Julia Cooper Mack, didn't occur until 1975.
For many women who wished to pursue positions as attorneys and judges, and then on to a possible position on the Supreme Court, there were many hurdles to clear. One change that made the process less problematic was the passage of Title IX in 1972 which forbade sex discrimination in institutions that received federal aid – which included law schools.
But in a report on the effects of gender in the federal courts, produced in 1994, a task force found that more was at play than law school entrance as women attempted to practice law and move into judgeships. The report noted that the system itself contributed to the exclusion of women from judicial appointments. The lack of women in positions of influence within networks and groups impacted the selection processes for judicial appointments and gave men a better chance to be promoted within law firm partnerships and in public law positions. Along with a lack of networking for women, and the politicking that took place within those networks, studies also showed that women faced inappropriate actions in the courtroom where they were not afforded the same respect as a male colleague.¹
Supreme Court Cases Involving Women’s Issues:
Many cases have appeared before the Supreme Court that directly or solely impacted women in the United States. Yet many of those cases were argued by males and before an all-male court: cases such as Bradwell v. Illinois (1873), Minor v. Happersett (1875), Muller v. Oregon (1908), Adkins v. Children’s Hospital (1923), Griswold v. Connecticut (1965), etc. Those cases set precedents regarding women’s legal status without any female representation in Court. Women may have participated in the preparation of the cases, but did not present or hear them. Although arguments abound that assert that the law is “gender-blind” and that the court only interprets the law as it is written, gender bias can be written into the arguments, as shown in the opinions from previous cases. By noting and asserting that there is a divinely-ordained female sphere for which women should focus their energies, the male experience became the norm and the standard for later opinions that called upon those cases as legal precedent.
Without a voice that points out the reality of women’s life experiences and challenges, male-centric definitions of work, family, health, etc., are the norm and therefore inherently contribute to a gender bias. As Ginsburg noted recently, when looking at the rights of women, the court never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality. "And it's important to note that at least two cases directly relating to women’s issues will appear before the court in 2016: Whole Women’s Health v. Cole, which is about access to abortion, and Zubik v. Burwell, another challenge to the Affordable Care Act’s mandate regarding contraception.
The Future:
So how do women move into positions where they have greater representation in the court system, particularly as it pertains to the Supreme Court? For some, the inclusion of more women to the highest court of the land is a priority. For others, gender is not an issue. But Justice Ginsburg made an important point when being interviewed at the 10th Circuit Bench and Bar Conference in 2012. In that interview, Ginsburg stated that she wished there were more women on the bench of the Supreme Court. She said, “And when I’m sometimes asked when will there be enough (women on the Supreme Court) and I say when there are nine, people are shocked.” But she points out that no one was shocked when the bench was all male up until 1981. And the belief that an all-female court would somehow be out of line, but an all-male court was normal and acceptable, brings into sharp view the continued need for conversations regarding issues of gender bias, equity, and equality.
¹(See Sandra Day O'Connor, The Effects of Gender in the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force: The Quality of Justice, 67 S. Cal. L. Rev. 745, 786-87 (1994).)
Also see, New York Times, http://www.nytimes.com/2014/08/05/us/as-gays-prevail-in-supreme-court-women-see-setbacks by Adam Liptak, August 4, 2014)
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