As Elena Kagan's nomination to the Supreme Court moves to a full Senate vote, the conventional wisdom in Washington is that her tenure will not change much on the court—after all, she's a liberal justice replacing her fellow liberal, retiring Justice John Paul Stevens. But that view misses an important aspect of Kagan's ascension. For the first time, the court would have three female justices, a critical mass that will change the way the group once called the "brethren" will approach its work. A lot of the difference has to do with the kind of questions women ask.
You can see these changes in other fields, like journalism, for example. As female writers moved from covering "society" events to reporting hard news, the nature of the coverage changed. Amanda Bennett, former editor of the Philadelphia Inquirer, is quoted in the book The Edge of Change: Women in the 21st Century Press explaining that the classic style of "who-what-where-when" coverage is considered "linear" reporting and more common to male writers.
Women just ask different questions than men do, and Bennett thinks that having more women in newsrooms encourages a view that "disengages from the linear, basic facts of what happened and tilts toward experiential questions of how life is lived in relation to the event or issue." We tend to be more interested in why the man bit the dog, and how did the guy find the dog in the first place, and by the way, did he have his rabies shot already? Having more women reporters is one of the reasons that, as readers, we see more stories with context about choices and conflicts and consequences than we did in the past.
A similar situation occurs on corporate boards that have more than one woman on them. Judy Rosener, a professor and expert on women in the workplace, reported that women in corporate board meetings tend to ask different questions than men do. Women board members told Rosener that their presence clearly "changes the conversation." The late Jane Evans, who served on the boards of the Altria Group, Georgia-Pacific, KB Home, and PetSmart, told Rosener, "Women ask questions that men don't think to ask, because women come from a completely different environment and vantage point."
In May 2002, the Conference Board of Canada published a study of women and corporate boards. It found that 94 percent of boards with three or more women on them—compared with only about half of all-male boards—met a variety of good-governance standards, such as insisting on conflict-of-interest rules and risk-oversight controls and considering the needs of a wider variety of stakeholders. Selena Maranjian of the Motley Fool website goes a step further and reports that companies with more women on their board also make more money, according to a 2004 Catalyst study of Fortune 500 companies. Again, it's that ability to ask different questions and think in a nonlinear way that women bring to the table.
You can't tell me that the same won't happen on the Supreme Court when 3 out of 9 justices are women.
Justice Ruth Bader Ginsburg saw the difference firsthand when she was the lone woman on the court, after Sandra Day O'Connor retired and before Sonia Sotomayor arrived. Ginsburg gave an unusual interview in May 2009 to USA Today that illustrates this pull between the linear aspect of what happened and the subjective experience of the plaintiff. She pointed to the case that reached the Supreme Court in 2009 involving Savana Redding, who at age 13 was strip-searched by Arizona school officials on suspicion of taking unauthorized ibuprofen to middle school. After no contraband pills were found, her mother sued on the grounds that it was an unreasonable search.
When the justices began questioning the family's lawyers, Justice Stephen Breyer said he had a hard time understanding why the girl thought her rights had been violated. "I'm trying to work out why is this a major thing to, say, strip down to your underclothes, which children do when they change for gym," Breyer said. "How bad is this?"
According to USA Today, Ginsburg replied that school officials had ordered Redding "to shake [her] bra out, to shake, shake, stretch the top of [her] pants." Ginsburg explained, "Maybe a 13-year-old boy in a locker room doesn't have that same feeling about his body. But a girl who's just at the age where she is developing, whether she has developed a lot … or … has not developed at all [might be] embarrassed about that." As for the men on the court, "They have never been a 13-year-old girl," she said. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood." One thing Kagan, Ginsburg, and Sotomayor have in common is that they're all former 13-year-old girls.
Ginsburg's views had a big influence on her colleagues, who ended up siding with Redding by a vote of 8 to 1. In his majority opinion, Justice David Souter called strip-searching a middle-school girl to look for ibuprofen "embarrassing, frightening, and humiliating." Having one woman on the court asking questions made a difference; imagine what effect three women will have.
We can argue over Kagan's politics, but there's no doubt her presence will begin to subtly shift the court. Having a critical mass of women quizzing defense lawyers differently from their brethren will bring new perspectives to the justices' decision-making. These sorts of changes have already been felt in workplaces as diverse as newsrooms and boardrooms—and now they will occur within the marble chambers of the Supreme Court.
- Check out our editorial cartoons on Elena Kagan's Supreme Court nomination.
- Follow the money in Congress.
- See a slide show of 5 reasons progressives should support Kagan's nomination.