By Joan Biskupic, USA TODAY
May 5, 2009
WASHINGTON — Three years after Justice Sandra Day O'Connor left the Supreme Court, the impact of having only one woman on the nation's highest bench has become particularly clear to that woman — Ruth Bader Ginsburg.
Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.
"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
As Justice David Souter prepares to retire at the end of the term this summer, the significance of Ginsburg's position as the nine-member court's only woman has become a point of broad discussion. President Obama is under pressure from groups such as the National Women's Law Center to nominate another woman.
In interviews with USA TODAY before Souter's retirement announcement Friday, Ginsburg said the court needs another woman. "Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception."
Since O'Connor's departure in 2006, oral arguments and the justices' behind-the-scenes discussions on how disputes should be resolved have had a different tone. In the strip-search case and others this term, Ginsburg has revealed a woman's point of view that was strikingly at odds with those of many of her colleagues.
Ginsburg dominated oral arguments in an important case involving alleged discrimination related to pregnancy leaves. She was openly frustrated that some of her male colleagues, in her view, might not have understood the discrimination women face on the job.
She said the arguments in that dispute echoed those of a 2007 case involving Lilly Ledbetter, a 19-year worker at a Goodyear tire factory in Alabama who alleged that her pay dropped over time compared with men who had equal or less seniority. In that case, the court — with Ginsburg vigorously dissenting — narrowly ruled that women could not sue for pay inequities resulting from sex discrimination that had occurred years earlier.
Oral arguments in the pregnancy case were "just, for me, Ledbetter repeated," Ginsburg told USA TODAY, adding that her colleagues showed "a certain lack of understanding" of the bias a woman can face on the job
In the justices' private conferences, during which they preliminarily discuss how they will vote on a dispute, Ginsburg said she feels the absence of O'Connor, who was the first woman on the court. O'Connor retired to care for her husband, John, who has Alzheimer's.
"At the conference, she spoke long before I did," Ginsburg said, referring to the court's pattern of seniority for discussion of a case. Noting O'Connor's forceful presence, Ginsburg added, "She is not an on-the-one-hand, on-the-other-hand person."
Ginsburg, 76, a former women's rights advocate whom President Bill Clinton named to the high court in 1993, recalled that as a young, female lawyer her voice often was ignored by male peers. "I don't know how many meetings I attended in the '60s and the '70s, where I would say something, and I thought it was a pretty good idea. … Then somebody else would say exactly what I said. Then people would become alert to it, respond to it."
Even after 16 years as a justice, she said, that still sometimes occurs. "It can happen even in the conferences in the court. When I will say something — and I don't think I'm a confused speaker — and it isn't until somebody else says it that everyone will focus on the point."
It was a revealing observation from a justice who generally praises her male colleagues, some of whom are close friends. Ginsburg said the court's gender imbalance has real, although not entirely obvious, consequences.
"You know the line that Sandra and I keep repeating … that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."
The differences between male and female justices, she said, are "seldom in the outcome." But then, she added, "it is sometimes in the outcome."
Ginsburg said having just one woman on the Supreme Court sends a disheartening message to Americans about women's roles in society. She stressed the contrast between the Supreme Court and international courts, many of which have higher percentages of women.
The nine-member Supreme Court of Canada, for example, has four women justices, including the chief justice. Ginsburg also pointed to state courts in the USA, where, according to the National Center for State Courts, 20 top state benches, including those in Florida, Michigan and Wisconsin, are led by female chief justices.
The "worst part," Ginsburg said, is the image a single woman at the high court projects, particularly to young people visiting the court: "Young women are going to think, 'Can I really aspire to that kind of post?' "
Conflicts over discrimination
Often Ginsburg's view as the court's only woman emerges in an understated way. The strip-search case that began in 2003 was different: Of all the justices, Ginsburg was the most focused on the plight of Arizona student Savana Redding.
After a classmate told the vice principal at the Safford Middle School that Savana had unauthorized prescription-strength ibuprofen, the vice principal directed a nurse and administrative aide to strip-search the girl. Savana's mother, April Redding, sued the school district for violating her daughter's right to be free from unreasonable searches. Authorities found no drugs on Savana.
"After Redding was searched and nothing was found, she was put in a chair outside the vice principal's office for over two hours, and her mother wasn't called," Ginsburg noted during oral arguments. "What was the reason for … putting her in that humiliating situation?"
One of Ginsburg's liberal colleagues, fellow Clinton appointee Stephen Breyer, saw it a little differently. He said he had a hard time understanding the girl's claim that 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?"
Ginsburg retorted that school officials had directed Redding "to shake (her) bra out, to shake, shake, stretch the top of (her) pants."
She later told USA TODAY, "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."
Earlier in the term, Ginsburg was similarly exasperated by comments from some colleagues in the pregnancy-related case. The dispute centered on pension benefits for women employees of AT&T who claimed they should have gotten credit for time off during a pregnancy leave.
"Discrimination on the basis of pregnancy is surely discrimination on the basis of sex," Ginsburg emphasized .
When the attorney for the women challenging AT&T took his turn at the lectern, conservative Justice Antonin Scalia suggested that if the court ruled against the company in the case involving retroactive benefits, more lawsuits would come.
"You're scaring me," Scalia said, drawing laughter from spectators — but not from Ginsburg.
This was the case, yet to be ruled upon, that Ginsburg felt repeated Ledbetter. That 5-4 opinion written by conservative Justice Samuel Alito — who succeeded O'Connor — rejected the notion that pay discrimination is harder to detect than other job bias and dismissed the "policy" argument that the law allows more flexibility for suing in such situations.
Ginsburg was so incensed by the decision that she took the unusual step of reading her dissenting opinion from the bench and called on Congress to reverse the court.
Congressional legislation, signed into law by Obama as one of his first official acts, gave workers far more freedom to sue for pay bias long after it began.
Ginsburg said in an interview that she believed some of her male colleagues had trouble understanding the difficulty of getting pay-disparity information and the general reluctance of women to claim a workplace policy is unfair.
"As often as Justice O'Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases," said Ginsburg, a Brooklyn, N.Y., native and Democrat. "I have no doubt that she would have understood Lilly Ledbetter's situation."
Women's rights and equal representation are causes Ginsburg advanced for most of her career before becoming a federal judge in 1980 on the U.S. Court of Appeals for the District of Columbia Circuit.
As director of the American Civil Liberties Union's Women's Rights Project in the 1970s, she shepherded cases that led the Supreme Court to increase its scrutiny of government policies that discriminated based on sex and to enhance opportunities for women on the job and in education.
She won five of the six cases she took to the court.
Ginsburg, who survived colorectal cancer a decade ago and had surgery for pancreatic cancer in February, has vowed to serve several more years on the bench. She is undergoing chemotherapy.
Ten days after her surgery in February she was back at oral arguments, never missing a session.
The next day, she attended Obama's appearance Feb. 24 before a joint session of Congress, because, she said, "I wanted people to see that the Supreme Court isn't all male."
Such sentiment is quite different from her prediction in 1993 when she appeared before the Senate Judiciary Committee for confirmation hearings. Then, the nation's second woman nominee to the high court said she thought she would soon be joined by more women.
"In my lifetime, I expect to see three, four, perhaps even more women on the high court bench, women not shaped from the same mold, but of different complexions," she told the senators.
"Yes, there are miles in front," Ginsburg said then. "But what a distance we have traveled from the day President Thomas Jefferson told his secretary of State the appointment of women to public office is an innovation for which the public is not prepared. 'Nor,' Jefferson added, 'am I.' "