Would justice be better served in the United States if more Supreme Court judges were women?

When asked in an interview in 2015 regarding when there would be enough women on the US

Supreme Court, former Justice Ruth Bader Ginsburg said categorically: “When there are nine.”

At the time of her interview, there were three females on the Court, which was extremely

progressive considering the first woman to be brought onto the Court was in 1981. Up until that

point, women had been mainly excluded from the highest level of the United States’ judicial

branch. But for Bader Ginsburg, three was not enough. Considering she vehemently advocated

for women during her tenure on the Court, it is not surprising that she might want to tip the

scale by putting all women in it. To some, her comment might have seemed a rather pithy joke,

but it actually raises fascinating and fundamental questions regarding the gender breakdown of

the Justices on the United States Supreme Court.

Ever since the establishment of the Supreme Court in 1789, its position within the judicial

branch of our government has been to provide justice and equality to the American people. In

fact, according to its own website, “the Court is charged with ensuring the American people the

promise of equal justice under law and, thereby, also functions as guardian and interpreter of the

Constitution” (SUPREME COURT). Every single American citizen understands the importance

of the Constitution on America’s democracy (defined by the Cambridge Dictionary as “the belief

in freedom and equality between people, or a system of government based on this belief, in

which power is either held by elected representatives or directly by the people themselves”), and

so to give the Court this role makes their position even that much more important to how we

function as a nation.

Moreover, compared to our president, who can only serve up to two terms, each Supreme Court

Justice is assigned for life. It is startling to read that the Court on its own website seems to

applaud the fact that it is “...deeply tied to its traditions: of the federal government’s three

branches, the Court bears the closest resemblance to its original form – a 225-year-old legacy”

(SUPREME COURT). But culture, society, and politics look nothing like they did in 1789. Out

of 115 appointed Justices in the history of the Supreme Court, only 6 have been women, a

surprisingly low number following the advent of the feminist movement. It has also taken 232

years for a Black woman, Ketanji Brown Jackson, to be selected to serve, a long 70 years after the

first Black man (Thurgood Marshall was appointed). Clearly, the Supreme Court is up for

scrutiny when we consider these startling statistics of exclusion, especially in a day and age when

conversations regarding equity for minority populations are more prevalent. How do we ensure

that our Supreme Court reflects the society it serves? Would this come down simply to the

gender makeup of those sitting on the Court?

Although the importance of more gender equality within judicial courts is most definitely not

exclusive to the federal Supreme Court, this essay will limit its discussion as such, especially in a

time where its legitimacy, ethics, and serving of justice are being called into question.

The current list of Supreme Court Justices includes: Samuel A. Alito, Jr, Amy Coney Barrett, Neil

M. Gorsuch, Kentaji Brown Jackson, Elena Kagan, Brett M. Kavanaugh, John G. Roberts, Jr

(Chief Justice of the United States), Sonia Sotomayor, Clarence Thomas (SUPREME COURT).

This is an unprecedented time when our court is almost 50/50 split between men and women.

Some minority groups are also represented, including America’s outlying territories (Sonia

Sotomayor is Puerto Rican) and other nonwhite races (Clarence Thomas and Ketanji Brown

Jackson are both African American). This superficially suggests a step in creating a relatively

gender and ethnically-balanced Court that can provide different perspectives to put forth more

justified and correct rulings. However, it is important to first define what we actually mean by the

word: “justice.” The Oxford Learner's Dictionaries defines the term as “the quality of being fair

or reasonable” and “the fair treatment of people.” Regardless of whether a more gender-equal

Supreme Court would serve more justice, we find ourselves examining if the Court itself is just

and right to begin with. A key argument proffered by a recent New York Times article: Who Can

Rein In the Supreme Court? is that the Justices are public servants that should act accordingly to the

public’s needs to gain their trust.

Against their long-standing belief to serve their people with justice, the Supreme Court Justices

act without the existence of a clear moral and ethical code. They stay in power until their deaths,

possibly exploiting their positions by acting carelessly, invulnerable to any law or moral

obligations. The calls for the creation of an ethical code for the Supreme Court has especially

increased after Justice Clarence Thomas failed to disclose his real estate deals with Dallas-based

real estate, and politically prominent billionaire, Mr. Harlen Rogers Crow on Oct. 15, 2014. Such

negotiations and actions of receiving gifts from a major donor to the Republican Party and

Conservative causes, can potentially play a significant role in his political biases, and affect his

future judicial decisions.

Certainly, this is not to discount the fact that the majority of other Supreme Court Justices act

differently, refraining from careless behaviour like that of Justice Thomas. Nonetheless, Judge

Michael Luttig (formerly appointed to the United States Court of Appeal for the fourth circuit

by President George H. W. Bush between 1991-2006) points out an important repercussion of it

("Michael Luttig"). The Justice’s failed attempt to conceal Thomas’ financial disclosures has

prompted the public to question whether the Court can subject itself to the, “highest possible

professional and ethical standards… because such would ensure to the full extent possible that

the court is always beyond reproach in its non-judicial conduct and activities” (VanSickle). How

will the public in a democratic society trust a section of our governing body that is not held

accountable for ethics?

The debate regarding whether having more female Justices will ensure justice is served can be

considered by analysing the four main types of law issues overseen by the Court: economic

activity, civil rights, reproductive rights, and sex discrimination. With these in mind, I argue that

more female Justices in the federal Supreme Court wouldn’t necessarily bring justice to all aspects

of law, even regarding pro-women issues. But rather personal political preferences and ideologies

are the true governing factors that influence the Court’s decisions. Therefore, I will go on to

make a suggestion regarding the creation and maintenance of the Court by the American

government.

In a similar vein, Katherine Felix Scheure mentions a study regarding Justice O’Connor and

Justice Ginsberg’s voting results over time in: Gender and the U.S. Supreme Court, revealing that the

two women voted more liberally in favour of cases related to female issues. In reproductive rights

cases, Justice O’Connor cast 64.9% liberal votes, while two of her male colleagues, Justice

Kennedy and Justice Souter only cast 30% and 57.7% liberal votes respectively (305). Moreover,

in sex discrimination cases, the results show that Justice Ginsberg cast 88.9% liberal votes

compared to Justice Breyer’s 87.5% liberal votes, and Justice Steven’s 68.9% vote (306). However,

voting results regarding civil rights and economic activities cases were not affected by the

Justice’s gender, therefore suggesting that more female Justices will ensure justice for women, but

not necessarily put forth the most just rulings in non-gender sensitive topics.

While I recognize the validity of the argument that more women might serve more justice in the

Supreme Court as so few have ever served on it before, zooming in on recent issues suggests

that it is not gender so much as political and social ideologies that need to be balanced. For

instance, in June 2022 the Supreme Court voted to overturn the historical ruling on abortion

issues in America by turning the responsibility of the law over to individual states. With no

surprise, 13 red conservative states decided to push their conservative ideologies without taking

the public’s opinion and were on trigger laws - overturn Roe vs Wade as soon as the federal

government decides to act in such a way. According to previous Speaker of the House, Nancy

Pelosi, overturning the ruling enabled the Supreme Court to achieve, “their dark, extreme goal of

ripping away a woman’s right to own reproductive health decisions, because of Donald Trump,

Mitch Mokonall, and the Republican party, their super majority in the Supreme Court” (Arkin).

Pelosi, a minority female democratic politician at that time in the House, considered the agenda

unbiasedly as she pointed out the conservative’s ‘supermajority in the Supreme Court’ and its

danger to America. So was it really those men who tipped the scale?

The ruling of overturning Roe vs. Wade was 5 to 4, and largely fell on the political lines: “The

court’s conservative wing (Clarence Thomas, Samuel A. Alito Jr, Neil M. Gorsuch, Brett M.

Kavanaugh, Amy Coney Barrett) voted to overturn Roe v. Wade, which guaranteed a

constitutional right to abortion, and the court’s liberal side (Stephen G. Breyer, Sonia Sotomayor,

Elena Kegan, John G. Roberts Jr) voted to uphold the landmark 1973 ruling” (Breen).

Appointed by President Trump in 2020, Justice Amy Coney Barret “powered the court’s

hard-right turn by casting the fifth vote in several major decisions—most notably, Dobbs v. Jackson

Women’s Health Organization, which overruled Roe v. Wade” (Stern) in June 2022. Her decision

brings emphasis to the role of women on the Court as intuitively, a woman judge would

immediately vote in favour of women for this issue, especially considering women are the ones

ultimately impacted by the ruling.

For a woman to whom overturning such law deems appropriate, her actions contradict the

“difference voice theory/two separate theory” (mentioned in the book: Gender & the US Supreme

Court), which argues that the actions of female and male judges differ as female judges are more

inclined to represent the interest of women, and that women tend to vote more liberally, “act for

women” or prefer to “represent women” by supporting their own gender in pro-women cases

(Scheurer 297).

In such cases, the only American, Catholic Justice: Amy Coney Barrett, voted to overturn Roe vs.

Wade, while the other Russian, Jewish female Justice: Elena Kagan, and the Puerto Rican female

Justice: Sonia Sotomayor voted against her, with the hopes of upholding the ruling.

Unfortunately, these women lost this cause after Coney Barrett administered her vote. If we were

to believe that more women on the court would indicate justice being served, then surely this

woman's issue would have fared differently. Consequently, the serving of justice by the Supreme

Court does not lie in the hands of gender but is rather influenced by personal, political

ideologies.

Furthermore, this issue hearkens back to the fact that gender is not the fundamental key to

putting forth more justice in a fully functioning democracy. In addition, the Supreme Court’s

legitimacy is up for scrutiny again as the Court is on the verge of dealing with a new significant

racial issue: affirmative action. Will students be examined based on their skill or race? Will more

women Justices/gender play a fairer role in this upcoming issue or have the same futile result as

Roe vs. Wade?

In conclusion, I propose that the underlying issue to achieve more justice lies in the election of

our Supreme Court Justices themselves. Rather than having a politically biassed president and

Congress appoint a Supreme Court Justice, a nationwide election should be held in place to show

that the Federal Court is a reflection of the public’s opinion, not the Justice’s individual political

biases. Whether that means more or fewer female Justices, or even possibly transgender Justices,

everything is up for consideration as our world continues to change.

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