Constitution Check: Are the female Justices voting their gender?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at criticism of the Supreme Court’s three female Justices and gender motivation in the Court’s recent actions.

Justice Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg


Headline: “High Court Female Justices Dissent from Wheaton Contraception Order” Story text: “The Supreme Court’s divisions over contraception tore open again Thursday when the three female Justices accused an all-male majority of going beyond the Hobby Lobby decision to interfere with insurance coverage under the Affordable Care Act.”

– Reporter Jess Bravin and the editors of The Wall Street Journal, on July 4, discussing the Supreme Court’s follow-up decision on July 3 that created an additional religious exemption to the federal health care law’s birth control mandate.

Headline: “Ruling Angers Female Justices” Story text: “The three female Justices of the Supreme Court sharply rebuked their colleagues Thursday for siding with a Christian college in the latest battle over providing women with contraceptive coverage under the Affordable Care Act, saying the court was retreating from assurances offered only days ago.”

– Reporter Robert Barnes and the editors of The Washington Post, on July 4, discussing the same Supreme Court action.

“In a decision that drew an unusually fierce dissent from the three female Justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.”

– Reporter Adam Liptak in The New York Times, July 4, discussing the same development at the court.

Twitter feed: “All three female justices dissent as high court gives small college an exemption from contraceptive rule” Story text: “The [court’s] unsigned order prompted a sharply worded dissent from the court’s three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan.”

– David G. Savage and the editors of The Los Angeles Times, on July 4, providing their version of the same story.


It probably would not have occurred to the Founding generation (although Abigail Adams might have thought of it) that some day there would be women serving as judges and even as Justices of the Supreme Court. When Sandra Day O’Connor became the first of her gender to be named to the court in 1981, America had a lively debate over whether a woman would vote differently because of her different life experience. She insisted at the time, and later, too, that it did not shape her view of the law. Some other women judges have disagreed.

There was a tinge of gender stereotyping in that debate, as it is not at all common to analyze how male Justices vote as men. The discussion has come up again each time a new female member joined the Supreme Court, and then, too, some observers have wondered anew what difference it would make.

A few basics should be kept in mind. The Constitution does not impose a gender qualification for serving on a federal court. Given modern notions of legal equality, such a condition would be flatly unconstitutional (as well as politically outrageous). And it hardly needs saying that women take to legal education quite as well as men do, and now, at some law schools, they are the dominant gender. They are just as good at judging, too.

America has come a long way since 1873, when the Supreme Court would refuse to allow Myra Bradwell to become a lawyer, and Justice Joseph Bradley would write: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life….The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

The Supreme Court’s two decisions last week dealing with access to birth control devices and methods led, perhaps not surprisingly, to a return of some of the same stereotyping in some of the public discussions. The temptation to suggest that gender-made-them-do-it was, apparently, irresistible.

First of all, the clash between majority and dissenting Justices was primarily one of ideology: how, as a judge, one interprets the power of Congress to act, and the authority of the Executive Branch to find ways to implement what Congress has legislated. The majority went a considerable distance to read a motive of religious favoritism into what Congress had done, and the dissenters went a similarly wide distance to read the need to protect access to essential medical services – in this case, services used by women.

When the initial Hobby Lobby decision came out early last week, there were four dissenters: Justice Stephen G. Breyer and the three female Justices. And in the follow-up decision, in a case involving the Illinois religious school, Wheaton College, Breyer went with the majority, and the three women dissented again.

But one can read the dissenting opinion, written by Justice Sonia Sotomayor, in the most intensive search for gender motivation, and it is simply not there. Indeed, the complaint of the dissenters was that the majority had abused the court’s judicial power, and had undertaken to invent new legal mechanisms on its own to support its desired outcome, to expand religious objections to public law. That is a gender-neutral dispute, and it goes to the heart of how a judge views the proper role of courts.

One can, of course, assume that the women dissenters were voting their gender, because only they, among the nine Justices, were in a class with the workers whose access to birth control was at issue. But that kind of assumption is precisely what gender stereotyping has always been about. When legal analysis is what is being undertaken, one should look for evidence of the influences that might explain the results. But, absent evidence, the mere labeling of a personal characteristic as centrally important gets in the way of a more serious inquiry into what was really going on.

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