Judging Sex and Gender

Upon learning that she would be replaced on the U.S. Supreme Court by John Roberts, retiring Justice Sandra Day O’Connor was pleased, but not completely. “He’s good in every way,” she responded, “except he’s not a woman” (Balz & Fears, 2005). Appointed in 1981 by Ronald Reagan, O’Connor was the first woman ever to serve on the nation’s highest court. Her disappointment that the court would once again include only one woman (O’Connor’s colleague Ruth Bader Ginsberg, appointed in 1993 by Bill Clinton) would prove short lived: within six years, the court would be a full third female.¹

If women make up roughly half of the U.S. population, it should logically follow that they will comprise a large portion of the courts as well. On the other hand, if justice is indeed blind, the sex (or race, ethnicity, religion, and so on) of individual justices should not matter. There is some argument over whether female justices rule differently than male justices—some research suggests that having three or more women on a panel can change the way the panel reaches decisions, even when the panel is predominantly male. Does gender affect the way justices come to decisions? There is some evidence that it does.

Consider the case of Savana Redding, a middle school student who, having been accused of supplying classmates with prescription strength ibuprofen, was stripped down to her underwear by two female school administrators, who searched through her underwear for the pills. None were found. Feeling that her Fourth Amendment protection from unreasonable search and seizure had been violated, Redding and her family sued the school district, and the case eventually found its way to the Supreme Court. Judging from the comments made by justices during arguments, Savana’s case looked bleak, as justices didn’t seem to understand why the situation was a big deal. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym,” noted Justice Stephen Breyer (Lithwick, 2009). But Justice Ginsberg, as a female, took a very different view and spoke out both in the press and to her colleagues about how humiliating such an experience could be for a teenage girl. “They have never been a 13-year-old girl,” she told one reporter. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood” (quoted in Biskupic, 2009). The Court eventually ruled that Redding’s rights had indeed been violated, in an 8–1 decision. Today, the Court’s three female Justices are often in agreement, but it remains unclear whether that is due to ideology (all three are fairly liberal) or to gender (Liptak, 2013).