Women On The Highest Court: We’ve Come A Long Way

Amy Davidson’s recent New Yorker piece characterizing  Ruth Bader Ginsburg as the real “hero”  of Supreme Court’s ruling to uphold Obamacare got me thinking about the relatively brief history of the role of women on the Supreme Court and how we now take their presence for granted. Davidson argues that for all the attention Chief Justice Roberts received for his Solomon-like decision, it was Ginsburg who, by the force of her dissent, may have persuaded Roberts to turn against his own natural ideological inclination and think instead about what impact overturning Obamacare might have on the Court’s influence. As Davidson concludes, “There was talk, after the decision, that Roberts had ‘saved’ the President and ‘rescued’ the court’s liberals, and one can reckon it that way. Again, at this point we don’t know what decided his vote. But must we assume that Roberts was the one who came to the aid of judicial damsels in distress and their trusty squire, Stephen Breyer? Or did he find himself eyeball to eyeball with the senior woman on the court, and blink? Maybe Ginsburg is the one who saved Roberts.”

Ginsburg was joined in her dissent to Roberts’ reading of the interstate commerce clause by the other two women on the Court Elena Kagan, and Sonia Sotamayor, although Kagan joined with the conservatives and Stephen Breyer in striking down the Medicaid expansion portion of Obamacare. These three women frequently vote together as part of the liberal voting bloc, but as Davidson notes, Ginsburg “is the leader of the liberal wing” – although it is likely that she won’t be leading it much longer.

Nominated by President Bill Clinton, Ginsburg joined the Court in 1993, becoming only the second woman to serve, after Sandra Day O’Connor (and the first Jewish female justice.)   At age 79, however, Ginsburg is in poor health and will likely step down sometime during the next presidential term.  If she does, it will be interesting to see whether there is political pressure to replace her with another woman. If so, it will be a sign of just how far views toward women serving on the Court have evolved.

For many years, of course, O’Connor – who was nominated to the Court by Ronald Reagan in 1981 – was the sole female Justice until Ginsburg joined her.  However, another Republican president, Richard Nixon, came close to nominating a women a decade before Reagan did.  In 1971, Nixon, who had already appointed two Supreme Court justices, Warren Burger and Harry Blackmun, had the opportunity to appoint two more due to the resignations of Hugo Black and John Marshall Harlan.  As political scientist Kevin J. McMahon tells the story in his well-researched book Nixon’s Court, Nixon seriously considered filling one of the Court vacancies with a woman.  He did so, McMahon makes clear, despite privately disparaging their fit for public service. Nonetheless, Nixon – looking ahead to the 1972 election – thought it made sense politically.  As he told an aide, “Hell, I’m against it myself, but it’s got to be done.”  Nixon reasoned that it would not cost him votes, and it might gain him support, particularly among women.  However, McMahon notes that Nixon’s desire to appoint a woman was virulently opposed by a surprising source: Chief Justice Warren Burger. Indeed, Burger threatened to resign if Nixon placed a woman on the Court, but Nixon was undeterred, going so far as to release a list of six potential nominees that included two women, one of whom – Judge Mildred Loree Lillie of the California Court of Appeals in Los Angeles – was at the top of his list for one of the vacancies.  In addition to being a Democrat and a conservative, McMahon notes that Lillie had two additional selling points: she was Catholic and she was married to another Catholic who was also Italian. Both qualities were potentially valuable electorally at a time when Nixon was working hard to attract the support of lower-income ethnic voters that had traditionally supported Democrats.   Unfortunately, as McMahon documents, when Lillie’s name was released, there was an outpouring of opposition that focused primarily on what critics considered her mediocre legal record. (However, the New York Times did compliment Lillie on her “bathing suit figure.”  McMahon finds no word on how the men under consideration looked in their swim trunks.) Ultimately, and partly as a reaction to his two previous failed nominations, Nixon opted instead to take the safe route and appoint William Rehnquist to the Court. (He did joke that it would help if Rehnquist opted for a sex change.)

It would be left to Reagan to break the gender barrier by appointing O’Connor, thus fulfilling one of his campaign promises.   Despite criticisms from Republicans and conservatives that she was insufficiently conservative, O’Connor was confirmed by the Senate by a 99-0 vote.

Here she is being sworn in by Chief Justice Warren Burger.

What do you think he is thinking?

From persona non grata to “hero” of the Court.  We’ve come a long way in 40 years.

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