Sabato's Crystal Ball

A Female Trinity:

Ginsburg, Sotomayor, and Kagan on the U.S. Supreme Court

Barbara A. Perry, Guest Columnist May 13th, 2010

For the past two decades I have taught at Sweet Briar, a liberal arts college for women in central Virginia. Faddish theories about gender-based education have come and gone during those same twenty years, but one constant remains. The undergraduates in my constitutional law classes adore meeting women Supreme Court justices. Last month I delivered a lecture at the U.S. Supreme Court, and my students dutifully attended. They were appropriately impressed when Chief Justice Roberts introduced me. But they were downright exuberant when they phoned me on their way back to campus with the news that they had met Justice Sonia Sotomayor.

The most junior justice, and only the third woman ever to serve on the nation’s highest tribunal, must have been working late, for my students spied her as she left her chambers at nearly 8:00 p.m. They recognized their judicial hero and, in a rush of excitement, approached the diminutive justice, who wore a stunning bright red cape. By their account, the Court’s first Latina member could not have been more gracious, even agreeing to stop after a long day on the job and have a photo taken with her youthful admirers. The memento will be especially meaningful to one of my star pupils: a brilliant young woman from Afghanistan who plans to attend law school and then return to her war-torn country to improve the lives of Afghan girls.

So when I heard that President Obama had taken his second opportunity in a year to name another women to the Supreme Court, I was delighted. In fact, my students and I had met Solicitor General Elena Kagan briefly when we attended oral argument at the Court last December. We mentioned that her stellar career in academe and public service was an inspiration to us. She looked slightly embarrassed by our admiration and modestly replied, “Oh, please,” when we told her that she was our role model. As she prepares to assume the black robe of the “priestly tribe,” Elena Kagan will follow in the footsteps of the three women who have preceded her on the high bench and who have masterfully integrated the previously all-male bastion.

My students’ positive reaction to meeting women Supreme Court justices reflects one element of presidential motivations in naming members of certain groups to the high court. At the very least, presidents use such “representative” traits of their nominees, including religion, race, ethnicity, and gender, to reflect societal characteristics. This passive form of representation creates a Court that looks more like America than one composed solely of white male Protestants. Moreover, once elevated to the pinnacle of the American judiciary, representatives of groups historically blocked from Court service often reach out to their “constituents,” who view them with reverence.

I witnessed this phenomenon throughout the years when women would meet Justice Sandra Day O’Connor. Sometimes females were moved to tears upon being introduced to her. Justice O’Connor’s rock-star status knew no borders. When she hosted the wives of India’s Supreme Court justices, they eagerly crowded around the first woman justice in America, telling her what a hero she was to them. Similarly, I accompanied a group of Jewish women to meet with Justice Ruth Bader Ginsburg last summer. She welcomed them warmly to the Court, described the role of Judaism in her life and judicial philosophy, and was deeply moved to receive their “Rachel Phillips Levy Woman of the Year Award,” which had been hand-crafted by a Holocaust survivor. Many of the visitors, including one who had been born in Israel, described meeting Ginsburg as one of the highlights in their lives.

O’Connor and Ginsburg have more actively represented women through their Supreme Court decisions and opinions. In her quarter century on the Court, O’Connor, though a moderate conservative and Ronald Reagan appointee, nearly always favored women in cases involving gender issues, such as abortion, employment/education discrimination, and affirmative action. Ginsburg, who once headed the ACLU Women’s Rights Project, possesses a perfect record of supporting feminist causes since her 1993 elevation to the Supreme Court by Bill Clinton. O’Connor assigned her the majority opinion striking down Virginia Military Institute’s male-only admissions policy in 1996. Ginsburg read a stinging dissent from the bench in the 2007 Ledbetter case, where the majority rebuffed a woman’s claim of discriminatory pay over her entire career. Then-Senator Hillary Clinton (D.-N.Y.) responded to Ginsburg’s call for congressional amelioration of the Ledbetter decision, and President Obama signed the law as one of his first acts in the White House. Justice Ginsburg was the only justice at oral argument in 2009 to express outrage over the strip search of a thirteen-year-old girl by public school officials in Arizona. When I commented to Justice Ginsburg that, after attending oral argument, I thought surely her side would lose in that case, she smiled and recalled, “So did I.” Yet the decision came down in favor of the student; the Court’s only female justice had convinced all but one of her male colleagues to support the adolescent school girl.

If Elena Kagan joins Justices Ginsburg and Sotomayor, they will form an unprecedented, and potentially very powerful, trio of women justices on the nation’s highest court. Although Kagan has a sparse paper trail, her pioneering résumé as Harvard Law School’s first woman dean and the U.S.’s first female solicitor general, along with her work in the Clinton administration, bode well for women’s representation–both symbolic and substantive. Just having turned fifty, she could remain on the Supreme Court for decades, ensuring an Obama legacy there long after he departs the Oval Office. Might Elena Kagan obliterate another gender barrier when a future chief executive names her the first female chief justice of the United States?

Barbara A. Perry is the Carter Glass Professor of Government at Sweet Briar College in Virginia. She is the author of eight books, including “The Supremes”: An Introduction to the U.S. Supreme Court Justices, 2d ed., available on her Web site: www.baperry.com. You can also follow her on Twitter: @tweetbriar