Well, this is fun. Three women, not zero, or one, or two, but three now sit on the Supreme Court. Three seems formidable. Somehow one seems like a token gesture, when all the rest remain men. And two seems tokenish because what can two do. But three—three is a third of the Court. Three is also an odd number and it seems like one might be moving to something of consequence.
By Zillah Eisenstein
There are deep divides among people about whether it should matter that females are on the Court; or whether it won’t matter because being female is not one and the same with being a feminist, of whatever sort; and/or that it cannot matter enough because of the unfair patriarchal aspects of law. Better yet, I wonder if all the new appointments of females in governments today across the globe—secretary of states, foreign ministers, judges, even presidents—is more a decoy kind of politics, than anything substantial effecting most women’s lives.
Even though Elana Kagan denies that her being a woman has particular import for how she will read and decide cases, she is female none the less. She inhabits a woman’s body. Her life has been lived as a female even if she has chosen to not embrace traditional meanings of womanhood like being a wife and or a mother. She is unapologetic for who she is—and that is a female who lives her life quite autonomously and happily so. Many assume that she is a gay, but who cares.
Why should Kagan feel free to say much about her personal self after the grilling Sonia Sotomayor took at her confirmation hearings? Her now famous statement about being a “Latina woman” does not deny the importance of neutrality and objectivity but rather makes clear that neither are achievable without first recognizing how individual experience and identity are present. If one is to achieve justice one first must expose her own biases. Silenced identities that are hidden are the ones that are dangerous; revealed and spoken identities can be held accountable.
Supposedly, in order to be considered worthy of the Court one must represent the mainstream, which is code for status quo. But justices should not protect the status quo. Instead they should be constantly examining and critiquing how best to understand the law in new ways. This is not judicial activism, or radicalism, or prejudice, but rather an intellectually curious and expansive understanding of Constitutional law. And, our Court needs all the help it can get to better know the democratic possibilities of the law.
Sonia S. was said to be racist; while white men are assumed to be neutral, i.e., mainstream. Before her Senate hearings right wing talk show hosts called her a bigot and according to Rush Limbaugh she hates white men. After all, look at what she did to the white New Haven firefighters? She judged that a test they took was unfair to blacks and therefore an inappropriate part of the vetting process.
Sonia S. was confirmed as a new justice to the Court about one year ago. It is too bad that to gain confirmation she had to play down and qualify her specific contribution as a Latina woman. Instead of applauding her unique qualities the richness of her racial and gender differences were seen as problematic for and by the mainstream.
Most recently, Kagan raised doubts among some Congress people because, on the other hand, she seemed not willing to claim her womanliness. She is single, with out children and unapologetic. She had no stories of former partners, like Sotomayor, nor the sense of a large extended family. Instead, Kagan was female but ungendered in a sense, a man’s woman so-to-speak. Whereas Sotomayor rippled the waves with her “Latina woman” identity, Kagan said her female identity had little relevance to the job. Either way, one loses here. What is a woman to do?
This makes for interesting querying. Maybe Sotomayor has no choice but to claim her Latina status and her womanhood because to claim one she needs to claim the other. She is “not white”, and given her Latina status, she also needs to claim her womanhood, given that gender is so often assumed as “white. Kagan is white, and therefore her gender is assumed by default. As such, she has more room to maneuver by saying less—even into the spot of the Dean at the Harvard Law School.
Much has changed since Sandra Day O’Connor and Ruth Bader Ginsburg became members of the Supreme Court. Both had to fight open misogyny and patriarchy in the practice of law and in the courts. They had little choice—whether to be seen “as” women or not— if they were to make their way forward. It was helpful that there was an active women’s movement demanding new legal rights for women at this point in time as well.
Ginsburg, as a liberal feminist, fought hard to end legal sex discrimination in the workplace, especially. O’Connor, more conservative than liberal, still often chose to defend Roe v. Wade, even in limited fashion, against its continuing assaults. It mattered that Ginsburg and O’Connor were women—for the Court and for women and the men that care about their reproductive and legal rights.
Today feminisms have shifted. Neo-liberalism is all the rage, among successful women and men. If Kagan embraced her femaleness as a feminist, of any sort, she would clearly not be of the mainstream of the society she inhabits, or the Court she hoped to become a member of.
I hope that these three women will bring their intelligence and their historical and cultural perspective and their particular knowledge from living female lives in a male privileged society to the fore as they sort out the meanings of the constitution. After all, former Chief Justice Rehnquist brought his male mind to his readings of the Constitution when he said that if the founding fathers had meant for women to have abortions they would have written it as such. Forget that the constitution was envisioned with white propertied men in mind.
There is no fact that does not need interpretation. There are no neutral readings—only readings that are committed to fairness, committed to knowing your bias, and then making sure it is not used to injure another. This is why nine justices are needed—so there is a diversity of thought. Each of their backgrounds matters, and should. It is why we still need more women, more gays, more blacks, and Muslims, etc. Actually I would love to see more of these identities embodied in each individual chosen.
With these three women we have white, and Latina, and working class and rich, and Jew, and Catholic, and someone battling cancer, and a mom, and aunts, and sisters, and who knows what else. Ginsburg is known as a liberal who is also often a liberal feminist. Sotomayor hedged at her confirmation hearings but she surely seems to be a Latina feminist to me. Kagan has played her cards a bit too old boys school, but I still am hoping that she now finally feels free to defend women’s rights openly.
My point is this: if the three women on the Court remember to “remember the ladies”, then the whole country will be better off: because women come in all colors, classes, sexual preferences, ages, body-types, etc. The more Elana, Sonia and Ruth bring their female histories to the fore, the better for us all, and democracy as well. Sonia is right when she first wrote that she saw more and knew more because of this heritage.
Truly inclusive democracy must make sure to recognize the specificities and differences that construct our polyversal humanity. That is why I hope for more progressive female justices in all our glorious variety. It remains to be seen whether these women are decoys for misogyny in its modernized forms, or defenders of a just and anti-racist feminist democracy. I am betting on the latter.
Zillah Eisenstein is Professor of Politics at Ithaca College and author of The Female Body and the Law (Univ. of California Press) as well as many other books related to changing political formations of sex, race, class and gender.