That won’t change the court’s ideological direction, and law professors and political scientists continue to debate whether gender significantly affects legal interpretation. But those who welcome the change say it is important for representational reasons, and they assert it could bolster the public’s view of the court’s legitimacy.
“It’s remarkable to think that we had to wait until 2022 to get to parity, but it also is something to celebrate as a country,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “What we know about the research around the institutions generally is that having the number of women that allow parity changes the conversation in the room, changes the perspectives that are raised and I suspect that will be true also for the Supreme Court.”
“For too long, our government, our courts haven’t looked like America,” Biden said. “And I believe it’s time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.”
O’Connor, confirmed to the court in 1981, and Ginsburg, who joined 12 years later, were both fond of quoting Minnesota Supreme Court Justice Jeanne Coyne’s answer to whether men and women see the law differently. At the end of the day, Coyne said, “a wise old man and a wise old woman reach the same conclusion.”
But O’Connor “also said many times that she was very happy to be the first but she didn’t want to be the last,” said Renee Knake Jefferson, who wrote along with Hannah Brenner Johnson “Shortlisted: Women in the Shadows of the Supreme Court.” “She assumed this enormous burden of having to represent all things to all people about the woman’s voice on the court.”
When O’Connor learned after announcing her retirement that President George W. Bush planned to name a man as her successor, she said she regretted seeing “the percentage of women on our court drop by 50 percent.” (O’Connor, 91, retired from public life in 2018 after disclosing she had been diagnosed with the early stages of Alzheimer’s-like dementia.)
Graves noted that in the period Ginsburg was the only woman on the court — from O’Connor’s retirement in January 2006 to the confirmation of Justice Sonia Sotomayor in the summer of 2009 — that “you saw some of her most full-throated dissents.”
Among them was the court’s 2007′s 5-to-4 decision in Ledbetter v. goodyear, in which the court said a manager at a tire plant waited too long to sue after discovering pay discrimination that began early in her career. Ginsburg read her dissent from the bench to emphasize her disagreement, and grounded her opinion partly in her own experience.
“Every woman of my age had a Lilly Ledbetter story,” Ginsburg said in a later interview, adding that a woman in a nontraditional job cannot be expected to complain the first time she believes she faces discrimination. “The one thing she doesn’t want to do is rock the boat, to become known as a complainer.” Ginsburg called for Congress to make the law clear that suits like Ledbetter’s should be allowed, and it did.
It should not be surprising justices combine law and experience, Graves said.
“The soon-to-be Justice Jackson now has a pretty long record you can look at to see how carefully she follows the law and applies it to the facts,” said Graves. “But we also know that Supreme Court justices are not robots and they bring their life experiences and perspectives to the table as well. Whether they can say that or not, I can say that.”
At Jackson’s confirmation hearing for the US Court of Appeals for the DC Circuit, a Republican senator said Democrats had made much of the importance of diversity on the bench, and asked whether race was a factor in her evaluation of cases.
Jackson said no. But she pointed to other parts of her background — as a trial judge, for instance — that could inform her service.
“It’s sort of like the Oliver Wendell Holmes quote that the life of the law is not logic, it’s experience,” Jackson said. “So I have experienced life in perhaps a different way from some of my colleagues because of who I am, and that might be valuable.”
If confirmed, Jackson, 51, would be joining Sotomayor, 67, Elena Kagan, 61, and Amy Coney Barrett, 50. All brought sterling academic accolades, all worked at least for a short time at law firms, three of them clerked at the Supreme Court.
Sotomayor and Kagan, both chosen by President Barack Obama, make up the diminished left of the court, along with retiring Justice Stephen G. Breyer.
Barrett, nominated by President Donald Trump to replace Ginsburg, is part of the court’s resurgent conservative supermajority. Her nomination was opposed by liberal women’s groups, including Graves’s, because of the proximity of the 2020 presidential election and because she was the ideological opposite of Ginsburg, the woman she would replace.
“Women jurists are not fungible,” Graves said at the time.
But Barrett’s confirmation was seen as a breakthrough by Republicans, because she was different from the women who had come before.
“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” said Sen. Lindsey O. Graham (RS.C.), who at the time was chairman of the Senate Judiciary Committee.
Barrett has served on the high court for only 16 months, and there have been few instances in the court’s resolution of hot-button cases in which she, Sotomayor, Kagan have found common ground.
But more than ideology is in the mix, when more women with diverse backgrounds are included.
Kagan had never been a judge before she joined the court in 2010, and she and Barrett had largely academic careers in the law — Kagan the first female dean of Harvard Law School, Barrett a professor at her alma mater, Notre Dame Law School.
Jackson would be the court’s first public defender, Sotomayor was a prosecutor. She and Jackson are the only ones with extensive experience as trial judges.
Sotomayor is the court’s first Latina, Jackson would be the first Black female justice. Barrett is a devout Catholic; Sotomayor a nonobservant one. Kagan never wed, Sotomayor is divorced, Jackson is part of an interracial marriage.
Among Barrett’s seven children are two adopted from Haiti and one with special needs.
That kind of diversity among life experiences will be valuable, said Jefferson, who is a law professor at the University of Houston.
“We will finally have a more accurate, though not completely accurate, representation of women in this country” if Jackson is confirmed, she said.
“The nation will see that this cohort of women vary on their political perspective, their philosophy about how to decide cases as judges,” Jefferson said. “So I think it’s important as an issue of institutional legitimacy for the Supreme Court to more accurately reflect the public that it serves.”
One area where the increased number of female justices has not translated into change is in the number of female lawyers who argue before the court. Biden’s top appellate lawyer, Solicitor General Elizabeth B. Prelogar, is a regular presence there, but a recent study from Bloomberg Law found the number of female advocates before the court rarely rises above 20 percent.
The Trump White House and Republican senators touted Barrett’s status as a mother of young children as a selling point at her confirmation. It caused for some awkward moments, such as when Sen. John Neely Kennedy (R-La.) asked who did the family laundry.
Barrett laughed it off. But at a recent appearance at Notre Dame, when a questioner in the audience asked how she balances home life and work as the only justice with school-age children, she was quick to correct.
She replied that she was the only woman justice with children. Justice Brett M. Kavanaugh has children, and Chief Justice John G. Roberts Jr.’s kids weren’t even school-age when he was confirmed.
Then she signaled the kind of co-parenting that Ginsburg, who died in 2020, long advocated. “Fortunately, my husband is working out of our home, so he has a bit more flexibility,” she told the questioner.
Jackson devoted a lecture on women and the law at the University of Georgia to balancing family and career. Among other things, she said she gave up jobs at big law firms because she found the demand for billable hours incompatible with her vision of family life.
Female nominees shouldn’t be required to have to address such questions, Jefferson said. Or perhaps fathers should be asked as well.
The dialogue “does shift with more and more women taking on these roles and being more willing to be open about how they negotiate the professional and the personal,” said Jefferson.
“I think we all just assume that men don’t have to talk about the divide and who picks up for it, because it happens so naturally for them.”