- Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World by Linda Hirshman
Gender and Judging: Reflections on “Sisters in Law”
We want to explore what it might be possible to achieve within the law and whether the barrier to substantive equality is the law itself or the lack of equality vision in those who are charged with interpreting and applying the law.1
This comment about a project of “rewriting” decisions of the Supreme Court of Canada, a project undertaken by a group of Canadian feminist law academics a few years ago, reveals the issue that is at the heart of Linda Hirshman’s book about the first two women appointed to the United States Supreme Court: What is the relationship between gender and judging, especially with respect to goals of substantive gender equality?2 Certainly, as women have increasingly entered the legal professions in many jurisdictions in the twentieth century, there have been high expectations that the appointment of women to the judiciary would significantly advance gender equality goals. Yet, as the feminist academics who tried to rewrite the decisions about equality cases in the Supreme Court of Canada discovered, it was a difficult challenge of “pushing the law and, at the same time, staying within the limits of the law.”3 In such a context, fundamental principles [End Page 685] about judicial decision making may sometimes prove resistant to aspirations of gender equality in law.4
Issues about gender and judging have been increasingly addressed in academic literature. In one of the most comprehensive collection of essays, Gender and Judging, many of the challenges faced by women judges in nineteen different jurisdictions (including the United States) on five continents were explored.5 Among others, this collection includes essays about the substantive impact of women judges on judicial decision making; women judges’ coping strategies in relation to discrimination; increased rates of gendered advocacy by lawyers in courts where women judges are present; the differing approaches of feminist judges and of feminist adjudication by women judges; the need to revise judicial selection processes to foster more diversity in the judiciary, including women judges; and the role of judicial education programs about the significance of gender in law. Clearly, such a collection offers a rich source of ideas about the experiences, strategies, and impact of women appointed to the judiciary. Moreover, as part of a burgeoning literature about women judges in both civil law and common law jurisdictions, Gender and Judging arguably offers an important context for Hirshman’s story of the first two women appointed to the US Supreme Court: Sandra Day O’Connor (appointed in 1981) and Ruth Bader Ginsburg (appointed in 1993).6 As the editors [End Page 686] of Gender and Judging suggest, however, relationships between gender and judging are inevitably complicated by other aspects of identity:
Tracking down and providing evidence for effects of difference due to the gender of the judge is always made harder by the fact that male and female gender intersects with other aspects of difference … such as age, race/ethnicity, family background, class/social stratum, sexual orientation, religion. Besides, personality traits such as looks, manners and behaviour[,] which determine human interaction, have an influence on personal value systems and take concrete form in individuals’ life experience. [Moreover,] it is conceivable that the early generations of female judges … may, due to obstacles in the way of advancement, have adopted attitudes different … to those of later generations.7
Indeed, as Hirshman clearly notes, Day O’Connor and Bader Ginsburg experienced different family backgrounds and strategic paths to the US Supreme Court, differences that may have shaped their individual approaches to gender barriers in their legal work and judicial decision-making:
O’Connor was appointed in 1981 by a Republican president [Ronald Reagan] … Ginsburg was put on the Court by a centrist Democrat [Bill Clinton in 1993]. They came from completely different backgrounds: Republican/Democrat, Goldwater Girl/liberal...