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Dahlia, Justice Ruth Bader Ginsburg would surely agree with you that it's long past time to rub out the equation that a woman justice equals a second-rate one. To make the case for why she needs a female colleague (or colleagues), she took the unusual step of talking about a case that's just been argued and not yet decided—the one involving the strip search of 13-year-old Savanna Redding. You wrote vividly about Ginsburg's apparent distress at the clueless reactions of some of the men on the court at oral argument. This week Ginsburg said as much to Joan Biskupic of USA Today. "They have never been a 13-year-old girl," the justice said. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
Ginsburg also remembered being ignored by male lawyers at meetings in the 1960s and 1970s, only to have a man present repeat her point, and get a response. And incredibly, she feels the same way even now: "It can happen even in the conferences in the court. When I will say something—and I don't think I'm a confused speaker—and it isn't until somebody else says it that everyone will focus on the point." Biskupic writes: "It was a revealing observation from a justice who generally praises her male colleagues, some of whom are close friends." No kidding.
Ginsburg also directly addressed the question of what women bring to the bench, as women:
"You know the line that Sandra [Day O'Connor] and I keep repeating … that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."
The differences between male and female justices, she said, are "seldom in the outcome." But then, she added, "it is sometimes in the outcome."
PS: Ann Althouse (U. Wisconsin law prof, blogger extraordinaire) discusses diversity on the court.
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The Supreme Court ruled, 7-2 yesterday in AT&T v. Hulteen, that women denied credits toward their pension for their pregnancies in the 1960s and '70s—before it became illegal—were not the victims of gender discrimination. The question came down to whether AT&T could rely on past discriminatory practices—before 1978 pregnant women were denied disability leave granted to men—to calculate pensions. Writing for the majority, David Souter found that AT&T had no obligation to calculate pensions based on laws not in effect at the time: "Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA (Pregnancy Discrimination Act)."
Justice Ruth Bader Ginsburg, increasingly apt to voice her frustration at her colleagues’ seemingly limitless maleness, wrote in dissent that the AT&T workers "will receive, for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did. They will experience this discrimination not simply because of the adverse action to which they were subjected pre-PDA. Rather they are harmed today because AT&T has refused fully to heed the PDA's core command,” that women should not face discrimination as a result of their pregnancies. This decision will up the stakes in Obama’s selection of a replacement for David Souter. But it’s a big mistake to read the dissent and opinion as an exercise in empathy versus mechanical application of the law. Ginsburg isn’t ranting. She’s applying the law as she believes it was intended to be applied.
Read Emily Bazelon's response to Dahlia here.
Photograph of Ruth Bader Ginsburg by Mark Wilson/Getty Images.
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Agreed, Dahlia, that Justice Ginsburg is carefully applying the law as she sees it in her dissent in AT&T v. Hulteen. Her problem is a bad old ruling that haunts this case and that all but one of her male colleagues refused to banish. In General Electric Co. v. Gilbert in 1976, the Supreme Court ruled that discrimination based on pregnancy is not discrimination based on sex, because some women (the nonpregnant ones) won't be discriminated against. By ignoring how "societal attitudes about prengancy and motherhood severely impeded women's employment opportunities," as Ginsburg puts it, Gilbert deeply frustrated women's rights lawyers at the time, notably among them one Ruth Bader Ginsburg. Congress thought Gilbert was bad law too, and overturned it by passing the Pregnancy Discrimination Act in 1978. That statute requires employers to give pregnant women the same benefits they give everyone else.
But the PDA didn't instruct employers to go back and fix previous discrimination, and so the pension benefits that the women who sued in Hulteen were denied more than three decades ago stayed on the books. Ginsburg's theory is that Congress did protect women "against repetition or continuation of pregnancy-based disadvantageous treatment." Thus the court should read the law to redress the continuing effect of AT&T's long-ago refusal to grant benefits, which continued to matter for these women employees. But seven members of the court took a narrower, time-bound view of the case. They ruled against the women who sued, much as a majority of the court in 2007 ruled against Lilly Ledbetter, because they refused to see the smaller paycheck she got for years, as compared with her male peers, as a pattern of discrimination that continued to affect her long after the first time she received it. And so, Ginsburg writes, "Congress interred Gilbert more than 30 years ago, but the Court today allows that wrong decision still to hold sway." One of the most infuriating decisions of the 1970s, from a women's rights perspective, resurrected by Ginsburg's own court. Consolation, maybe: Congress could get it together to side with her, as it did in reversing her colleagues' Ledbetter decision this year.
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The Supreme Court ruled unconstitutional this morning the strip search of Savana Redding, the 13-year-old student who was supposed to have somehow been hiding prescription ibuprofen in her underwear, only wasn't. That's a relief. At oral argument, some of the male justices got all jokey about their own school experiences of people sticking things in their underwear in middle school while they were changing for gym. That particular reminiscence came from Justice Stephen Breyer: Here's Dahlia's great write-up of the argument. And today, Justice David Souter specifically notes, in his majority opinion, that "changing for gym is getting ready for play." A strip search in response to an accusation, by contrast, is "fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be." I want to live in one of those places.
It is nice to hear Souter's sober tones, and to see that he speaks for all the justices but Thomas in deeming this search out of bounds under the Fourth Amendment. But the best lines and real feeling come from Justice Ruth Bader Ginsburg's part concurrence, part dissent. (She and Justice John Paul Stevens didn't think the school district officials deserved immunity from suit. The other six justices in the majority did.) Ginsburg points out that after the search, the school official in charge made things worse by making Savana Redding "sit on a chair outside his office for over two hours." She calls his behavior "abusive." Twice. I am glad that the men on the court got religion on this one. But I give Ginsburg the credit
For much more discussion on the court's end-of-term cases, read Dahlia's great dialogue with Linda Greenhouse and Walter Dellinger. Linda will post in a minute on the ruling in Redding.
Photograph of Savana Redding by Mark Wilson/Getty Images.
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Our own Emily has a fantastic and revealing Q & A with Justice Ruth Bader Ginsburg up on the New York Times website today. Their conversation ranges from Roe v. Wade to summer camp in the Adirondacks to Savana Redding to losing her shoe under the bench. It seems primarily designed as a warning to any holdouts on Sotomayor. (“Yes, the notion that Sonia is an aggressive questioner—what else is new? Has anybody watched Scalia or Breyer up on the bench?”) Her feeling about the lack of women on the bench could pass as pointed fashion advice: “It just doesn’t look right in the year 2009.”
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Our own Emily has a fantastic and revealing Q & A with Justice Ruth Bader Ginsburg up on the New York Times website today. Their conversation ranges from Roe v. Wade to summer camp in the Adirondacks to Savana Redding to losing her shoe under the bench. It seems primarily designed as a warning to any holdouts on Sotomayor. (“Yes, the notion that Sonia is an aggressive questioner—what else is new? Has anybody watched Scalia or Breyer up on the bench?”) Her feeling about the lack of women on the bench could pass as pointed fashion advice: “It just doesn’t look right in the year 2009.”
