Women: Truly the Fairer Sex

By Lithwick, Dahlia | Newsweek, April 20, 2009 | Go to article overview

Women: Truly the Fairer Sex


Lithwick, Dahlia, Newsweek


Men, the theory goes, prefer law with rigid rules and clear lines; women tend to favor an 'ethic of care' over an 'ethic of rights.'

It's a near certainty among Supreme Court watchers that President Obama will fill the bench's next vacancy with a woman. The current court's sole female member, Ruth Bader Ginsburg, has said she is "lonely" there, and even if she's not the next to step aside, that's still just two out of nine. Former Justice Sandra Day O'Connor, on learning in 2005 that John Roberts would take her place, declared him "good in every way, except he's not a woman." Americans seem to agree. In a CNN/USA Today/Gallup poll taken before Roberts was appointed, 80 percent of respondents said it was a good idea to replace O'Connor with a woman; 13 percent said it was "essential." And with many women claiming a large share of responsibility for Obama's victory over John McCain, the demand for a more gender-balanced court is stronger than ever.

But why does Obama owe us another woman justice? Is it simply a matter of appearance? Is it necessary for what political scientists call "social legitimacy"? Or is there something more fundamental that women bring to the bench--something about the way they decide cases--that makes the need so urgent?

Debate has raged for decades about whether there is something unique about women's jurisprudence. A 1986 study of O'Connor's opinions published by Prof. Suzanna Sherry, now at Vanderbilt University, saw evidence of a "feminine jurisprudence -- quite unlike any other contemporary jurisprudence." The argument is often built on the groundbreaking work of psychologist Carol Gilligan, whose 1982 book, "In a Different Voice," claimed that female moral reasoning differs from that of males. Men, the theory goes, prefer their law with rigid rules, clear lines and neutral principles; women prefer to look at the totality of the circumstances and favor what Gilligan calls an "ethic of care"aover an "ethic of rights." So, for example, feminists argue that O'Connor's preference for flexible standards regarding abortion (or for nonbelievers in cases about religion) reflect a softer, more "relational" approach to the law, while Justice Antonin Scalia's emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing.

Empirical studies on gender and judging so far have been inconclusive. But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex-discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, they examined whether male and female judges rule alike, and whether the presence of a woman on a panel affects the behavior of her male colleagues. …

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