Women And The Supreme Court

By Emily B. Cyr

This week, President Obama announced his nominee to the Supreme Court, a DC appeals court judge named Merrick Garland. If the Senate confirms Garland, he will become the 113th justice to the United States Supreme Court in history. He will also become the 109th male justice, while the number of female justices remains at four, with three currently serving. This lopsided number inspired a look at the history of women and their place in the highest court of the land.

The Supreme Court dates back to 1789, when Article III of the Constitution stated that “the judicial power of the United States, shall be vested in one Supreme Court”. Although the Supreme Court is a product of the Constitution, its structure was a decided duty of Congress, outlined in the Judiciary Act of 1789. This established the United States judicial branch, with six justices.

The Supreme Court did not have the same prowess or respect in its early years that it does today.  During the first court under Chief Justice John Jay (1789-1795), the justices only heard four cases. The justices actually spent a lot of their time traipsing across the country to circuit courts, while the Supreme Court had no permanent home. Surprisingly, Chief Justice Jay almost quit, finding this job “in a degree intolerable.” As the country developed, though, so did the court, arriving at the nine justices we know today.

As previously mentioned, there have been 112 Supreme Court Justices in United States history. It was lucky number 102 that was filled by the first female Supreme Court Justice, Sandra Day O’Connor. A Stanford Law grad and then judge on the Arizona State Court of Appeals, her appointment in 1981 was the fulfillment of a promise made by President Ronald Reagan during his campaign. Reagan, competing against incumbent President Jimmy Carter, paid a great deal of attention to women’s rights, promising to appoint women to his cabinet along with the first female to the Supreme Court. O’Connor was actually a fairly moderate choice, and a supporter of the Equal Rights Amendment which was a very contested piece of legislation at this time. Many conservatives were angry with Reagan for appointing someone who they did not think would overturn the landmark abortion case Roe v. Wade of 1973.

Nevertheless, O’Connor was appointed and confirmed by a unanimous Senate vote in 1981. The three female justices to follow her say they all remember where they were when the news of her appointment was announced. The popular Ruth Bader Ginsburg, only two years younger than O’Connor, would not join her as the second female Supreme Court Justice until 1993, with four men appointed to the court in between. O’Connor would retire in 2006, leaving Ginsberg as the sole women for three years until President Obama appointed Sonia Sotomayor in 2009, and then a record three women were on the court with Elena Kagan’s confirmation in 2010.

Of course, certain court cases affect some demographics to a larger extent than others, so one has to wonder if justices look at cases differently based on their sex. Sandra Day O’Connor has expressed her belief that a wise female judge would come to the same conclusion as a wise male judge, but other justices like Ginsberg and Sotomayor have not necessarily agreed. During a case in which a 13-year-old girl was strip-searched at a school, Ginsberg said, the only female justice serving at the time, that her colleagues “have never been a 13-year-old girl” and that she “didn’t think that [her] colleagues, some of them, quite understood”. 

This thinking may become increasingly relevant as the court prepares to hear a major abortion case this spring. The case about an abortion clinic in Texas known as Whole Women’s Health v. Cole puts to test the constitutional right women have to an abortion, established under Roe v. Wade. It has been said the case could become the third crucial case in regards to the constitutionality of abortion, after Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). This will be the first of the three cases to have three female justices, all considered to be in the liberal faction of the court. With this history in mind, it is increasingly important to keep the place of women in the Supreme Court (or lack thereof) at the center of the conversation.