Gender Influenced Justices: Sandra Day O'Connor and Ruth Bader Ginsburg

A year after Sandra Day O'Connor retired, the only remaining female on the Supreme Court, Ruth Ginsburg, was quoted in The Washington Post by the Associated Press saying she dislikes being "all alone on the court" (1). Ginsburg explained that she and O'Connor "have had the experience of growing up women and we have certain sensitivities that our male colleagues lack" (Ibid). The only two women to serve on the Supreme Court are therefore similar even though O'Connor and Ginsburg are different when it comes to believing in a given political ideology. O'Connor is a moderate conservative, and Ginsburg is a restrained liberal; however when they were on the bench it was easy to see that they both had gender affected jurisprudences. O'Connor was affected by her gender and conservative ideology to have a jurisprudence that has been characterized as feminine, while Ginsburg was affected by her gender and liberal ideology to have a feminist jurisprudence.

The influence of gender on their respective way of legal thinking has changed the political arena, especially with respect to abortion rights and restrictions. Despite differences in political ideology, O'Connor and Ginsburg have decided many cases as women who are supportive of modern women's rights. It is essential to understand the importance of gender influenced jurisprudence on the two Supreme Court justices, and how it has helped modernize patriarchal abortion laws for the greater good of women overall, in order to understand its societal benefits. Yet recently, the benefits of gender influenced jurisprudence have been underestimated, since after O'Connor retired she was not replaced by a woman. This has had serious ramifications for women, since the new conservative male majority on the court has reversed the progress of O'Connor and Ginsburg's legacy as seen in the most recent abortion case, Gonzales v. Carhart. Abortion cases reveal the role that gender identity has on the outcome of cases, which has implications for how identity, in aspects of gender race and class, influences the nine Supreme Court justices.

In order to understand the influence of gender on the two female justice's jurisprudences, it is essential to look at female psychological theories. The development of gender based theories was motivated mostly after the Civil Rights movement, when women started making their voices heard. Gender theories have added context to many academic fields, including women's studies and political science. Thus by recognizing gender theories, scholars are better able to understand the impact and influence that gender has had upon the development of women and how it relates to the political realm. Of the many gender based theories that now exist, many theorists look to Carol Gilligan to support their work. According to Carol Gilligan's socially revolutionary theory in In a Different Voice, women are psychologically different than men, and because of that they bring a "different point of view to the lifecycle" (22). Gilligan believes these basic psychological differences are innate and revolve around the "recognition of relationships," "preservation of relationships," and the "belief in communication as the mode of conflict resolution" (29). This differs from men who generally feel that relationships can easily be replaced and do not emphasize communication. Gilligan stresses that since women are psychologically different than men, it is only natural they would have a different, and more sensitive understanding of morals and judgment (22). By following Gilligan's theory, it would be natural to expect that Sandra Day O'Connor and Ruth Ginsburg would add a different, gender influenced voice to the Supreme Court. Their voices are different because trends in their case decisions show evidence of female psychological qualities, as described by Gilligan, which is naturally different from their male colleagues. Through out their stay on the bench, O'Connor's decisions have shown trends of trying to maintain relationships, and Ginsburg's decisions have shown trends of trying to incrementally communicate a feminist agenda. These trends can especially be seen in case decisions and in the way journalists write about them.

Women have value in the judicial system because they innately judge differently, and how gender has influenced jurisprudence could not be clearer than when looking at specific abortion cases. The reason for looking at abortion cases to see gender influenced jurisprudence is because abortion is an issue that predominantly concerns women, thus it would be expected that women could sympathize better than men could. However, abortion was not always a women's issue. In Abortion and the Politics of Motherhood, Kristin Luker analyzes the history of how abortion became an issue controlled by patriarchal society, to an issue advocated for and by women. Luker claims that "women as a group, have wanted to seek control over abortion... they wanted to make women, not doctors, the ultimate decision-makers about abortion" (110). This primarily occurred in the 1960's and 1970's, which was also around the same time that Carol Gilligan was conducting research for her gender theory. Clearly at this time women were becoming empowered, and one way to empower themselves was to convey to the government that they should be in control of their own bodies (Ibid). Thus abortion became a hotly contested issue in the political arena. Luker accounts for abortion in politics by claiming "the abortion issue is emotionally charged because new political constituencies-primarily women-have vested social interests in whether the embryo is defined as a baby or as a fetus...the pro-choice side on behalf of women (especially poor women) who need safe, clean and legal abortions" (7). By understanding how abortion evolved into a women's issue in the 60's and 70's, it can therefore be expected that the Supreme Court's only two female justices, albeit in different ways, would be influenced by their gender when deciding.

Around the tenth anniversary of Roe v. Wade, the court agreed to hear an abortion case, and O'Connor found herself in the middle of the controversy, since she was the first and only woman on the court as the case of Akron v. Akron Center for Reproductive Health was presented. With respect to the details of the case, the legislation in dispute was an Ohio state statute that required doctors to lecture abortion-seeking women that life begins at conception, and it also required a twenty-four hour waiting period between the lecture and the procedure, as well as a brief hospital stay after the abortion (Akron Syllabus). As seen in her court opinion, O'Connor's decision was to vote with her conservative colleagues in order to uphold the statute, however she made this choice after applying her own "unduly burdensome" test to the case (1). O'Connor was influenced by her gender when forming this test, and she used the Akron case to define her "unduly burdensome" test. She described the tests requirements in her opinion as "a regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion" (Ibid). O'Connor felt this statute could be upheld because it was a regulation that did not place a burden for a woman to seek an abortion, she states this in her opinion by reasoning that "a health regulation, such as the hospitalization requirement, simply does not rise to the level of official interference" (4). Since the statute did not prevent abortion, O'Connor thought feminists would be appeased, and the fact that doctors could still tell women that life begins at conception appeased the conservatives who wrote that statute. O'Connor consequentially used this abortion case to reach a compromise between the two opposing views. According to Gilligan's theory, this shows gender's influence because O'Connor recognized the fragile relationship between conservatives and feminists and formulated her "undue burden" test, as a result of her gender influence, to formulate a compromise.
Eighteen years after Akron, the Court chose to hear the case of Stenberg v. Carhart, an abortion case that O'Connor and Ginsburg would both decide similarly on. According to the details of the case, a Nebraska law was brought before the court which prohibited all partial-birth abortions (Carhart Syllabus). O'Connor and Ginsburg both decided that the law violated the constitution as interpreted by Roe, and in looking at their concurring opinions it is clear that they were influenced by their gender when deciding. O'Connor highlights her "undue burden" test in her opinion, stating that "Nebraska's statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman's right to choose to terminate her pregnancy before viability" (2). By referring to her "undue burden" test, O'Connor is once again displaying qualities of her gender, as described by Gilligan, since she is trying to compromise between feminists and conservatives. She voted in favor of abortion restrictions in Akron under her test because it did not burden the right to choose, however with respect to Carhart O'Connor felt differently. Ginsburg concurred with everything that O'Connor stated in her opinion, however she felt it necessary to write a brief two paragraph joint concurrence.

Ginsburg felt it was necessary to emphasize that the statute did not take into consideration a woman's health. Thus she emphasized the unconstitutionality of the statute in her opinion because "the statute does not seek to protect the lives or health of pregnant women" (1). She also seeks to expose the conservative agenda behind the statute by saying it was formed by "legislatures seek[ing] to chip away at the private choice shielded by Roe v. Wade" (Ibid). Thus it is clear that Ginsburg was affected by her gender to concur with O'Connor's opinion, as well as sympathize with the health of women when making her decision. Additionally it is clear that she was affected by her feminist nature to make the claim that conservatives are trying to deprive women of their right. Thus Ginsburg's views are more radical than O'Connor's, because it shows Ginsburg's staunch feminist beliefs in the health of women and their right to an abortion without burdensome restrictions. The opinions of the two female justices in Stenberg v. Carhart are quintessential examples of showing gender influenced jurisprudence.

It is important to understand why O'Connor voted to uphold abortion restrictions in Akron and yet voted to uphold abortion rights in Carhart since she has received criticism as being ambivalent because of it. This is not an uncommon critique, since the public would often wonder which way O'Connor would swing on a given abortion case. However O'Connor was anything but ambivalent about the abortion controversy, she simply tried to compromise between women's interests and conservative interests. O'Connor accomplished this by creating her own standard, the "undue burden" test, which she used in all abortion cases that came before the court, including Akron and Stenberg. Critics like The New York Times journalist Jeffrey Rosen, consider this test to be vague language employed by O'Connor to simply give herself "lots of discretion to decide, from case to case, whether or not she considered a particular abortion restriction permissible" (5). When Rosen and other women's rights advocates denounce the "undue burden" test as vague, they fail to see its inherent benefits. O'Connor's "undue burden" test does give her a lot of discretion, but this discretion is beneficial since it ensures that regulations that place a burden on the right to seek an abortion are overturned. It also ensures that there will be no reversal of Roe while O'Connor possesses the swing vote. These benefits derive from O'Connor's desire to compromise between women's interests and conservative interests. Such a strong emphasis on compromise is a woman's psychological quality, and many scholars have directly addressed the impact gender has had on Sandra Day O'Connor's decisions.

In an argument relative to my own Susan Behumiak-Long strongly believes gender has impacted and defined O'Connor's way of legal thinking. She believes "O'Connor's impact as a female is derived from the fact that she is promulgating a very specific jurisprudence-that of the feminine" (417). Behumiak-Long wrote "Justice Sandra Day O'Connor and the Power of Maternal Legal Thinking" for The Review of Politics, in her article she details that O'Connor possesses a jurisprudence which is feminine rather than feminist, which means O'Connor favors a more moderate way of legal thinking over the extreme (440). According to Behumiak-Long, O'Connor's ability to use feminine jurisprudence to seek compromises in her decisions is important to the court because it works to the advantage of the American public. This is true because She states "O'Connor's feminine jurisprudence may be deleterious to feminists" and "it may also undermine conservatives... in subverting each cause she pulls each side toward the center" (442). This occurs because she gives herself a lot of room to decide on abortion cases, which allows for moderation between the two sides. When O'Connor tries to find a common ground for opposing sides, she ensures that she does not advance an extreme agenda. This has been seen repeatedly in her abortion decisions, where she moderates by sometimes voting in favor of abortion regulations, and sometimes voting in favor of abortion rights. Moderation is in and of itself a compromise made to preserve the relationship between opposing sides, and reflect public opinion. Moderation is also the political safeguard against radical political changes. If O'Connor did not moderate Roe could have easily been overturned and many journalists have recognized O'Connor's proclivity to moderate.

Many newspaper articles written about the only two female justices do not directly address gender influenced jurisprudence, however they do show a general recognition of gender influenced characteristics, as described by Gilligan, and how it has influenced their way of legal thinking. One journalist, Jeffrey Rosen, a Law professor at The George Washington University, has written many articles about the Supreme Court for The New York Times. In "A Majority of One" Rosen describes how O'Connor controls the court because she is frequently the 5-4 swing vote that decides the outcome of heated cases. Additionally he argues that since she is the swing voter, she is essentially the court's moderator. Rosen believes that "O'Connor viewed it as her mandate to reign in the conservative extremists and she was independently-minded enough to break ranks with her party on issues she cared about" (4). This shows how even though O'Connor identified herself with the Republican Party, she did not always agree with them, especially on issues that closely relate to her gender, such as abortion. This also shows how O'Connor was not afraid to position herself against conservatives in order to moderate extreme agendas to find a common ground. Finding a common ground was an important aspect of O'Connor's gender influenced jurisprudence, because according to Rosen, it "allows her to remain not only the center of the court but also at the center of America's politics" (2). He believes that O'Connor has been more perceptive of public opinion and the public's general preference for moderation over extremes. Although Rosen does not directly account for gender and its influence on O'Connor's jurisprudence, what his article reveals highlights the characteristics of female gender influences he claims that she recognized the relationships between the court and the public, and additionally she moderated the court's decisions in order to maintain that delicate relationship. As the court's moderator, O'Connor clearly had an important role that was shaped by the influence of her gender. Ginsburg has had an equally important role on the court, but gender influences have affected her in a different way.

Before analyzing an abortion case where Ginsburg had to decide without O'Connor, it is necessary to look at how Ginsburg's feminist jurisprudence differs from O'Connor's feminine jurisprudence. Although Behumiak-Long does not directly address Ginsburg in her article, she does address feminist jurisprudence and how it differs from feminine jurisprudence by stating "while the feminine follows the melody penned by patriarchy, the feminist clashes at each interval. The feminine asks men to consider including another perspective; the feminist attempts to wrest from men the power they wield over women" (440). Obviously, Ginsburg's feminist jurisprudence is more radical than O'Connor's feminine jurisprudence, yet Ginsburg has often been characterized as a restrained feminist by critics such as Rosen, and this also comes into play with her jurisprudence. This is because she is not the most radical feminist who according to Behumiak-Long "tries to fundamentally alter the structure" (Ibid). An argument can be made that Ginsburg did want to alter the structure, however the way in which she went about deciding changes was, as Rosen described, restrained and incremental (5). Another critic who describes feminist jurisprudence, but not as directly related to Ginsburg is Tracy E. Higgins who wrote "Democracy and Feminism" for The Harvard Law Review. In her article, Higgins explains that feminists have united under a common goal "to extend the general guarantee of equality to women" (1672). She describes that this goal has been advocated for in many ways from simple "consciousness-raising" to extreme activism (1686). Ginsburg's decision in Carhart shows that she is not disseminating an activist agenda, her decisions show the influence of feminism to ensure a progressive attitude towards the safety of women and their respective rights. In another Supreme Court article, Rosen highlights Ginsburg's progressive feminism as part of her jurisprudence.

In "The New Look of Liberalism on the Court," Rosen claims that Ginsburg is a sensible feminist in spite of being criticized by her former feminist ACLU colleagues as being conservative (2). He believes "Ginsburg's feminist colleagues were lukewarm about her Supreme Court candidacy on the grounds that her jurisprudence was too conservative and her vision of equal-treatment feminism was not radical enough" (3) Thus instead of trying to be revolutionary on the bench, Ginsburg approached cases in an evolutionary manner to take the next logical step. This differs from O'Connor's jurisprudence because she was more apt to bridge majority and minority opinions. Ginsburg's feminist jurisprudence is therefore more progressive because it seeks to move forward, and is not as willing to compromise. It is without a doubt that Ginsburg's gender influence on her jurisprudence stems from the fact that she is a feminist, even though Rosen does not directly mention influences on her legal thinking. Although the feminist aspect differs from O'Connor's gender influenced way of legal thinking, Ginsburg still shares similar gender influences, such as recognizing the relationship between the court and the public. This can be seen because Rosen feels that Ginsburg "style[d] herself as a cautious codifier of popular opinion rather than a crusader for social reform. Yet it can be argued that in cases involving sex discrimination, she has shown some crusading zeal" (5). Ginsburg recognized the delicate relationship between the court and the public, and this is why she was not a feminist judicial activist. She restrained her feminism until there were matters that heavily affected her gender. This shows a willingness to compromise. O'Connor and Ginsburg both possess female characteristics emphasized by Gilligan's theory such as the recognition of relationships and a desire to compromise. These characteristics have influenced their jurisprudence, but some critics still claim that gender does not affect legal thinking.

One advocate who claims gender has no influence on jurisprudence, is O'Connor herself. In Majesty of the Law: Reflections of a Supreme Court Justice, O'Connor mentions the question of if gender has influenced her judgment. She states "I am often asked whether women judges speak with a different voice... there is simply no empirical evidence that gender differences lead to discernible differences in rendering judgment" (190-191). O'Connor's answer shows how she underestimates her influence on the court by not accrediting her gender to how she was able to decide cases differently from her male colleagues. However, it may also be a possibility that O'Connor is hesitant to accredit her gender to influencing her jurisprudence because it might spark criticism from conservatives who might then use that to turn down the nomination of another woman to the Supreme Court. Nevertheless, even though there is no empirical evidence that female judges judge differently then male judges because of their gender, there is a strong correlation. The correlation lies within how her judgments compromise opposing views, recognize relationships, and preserve relationships, all of which are elements of Gilligan's theory of what makes a woman different. Even though O'Connor refuses to recognize gender differences, she did make another gender related comment in her book, "my intuition and my experience persuade me that having women on the bench, and in other positions of prominence, is extremely important" (189). This reflection is important to recognize, because it is important to have more women in government. However the reason more women are needed in government is because they speak with a different voice. Women are more likely than men to moderate extreme agendas, and by that logic women are more likely to create moderate policies that reflect public opinion rather than the opinions of the extreme political elite.

When O'Connor retired and was replaced with a conservative male, the Supreme Court solidified a conservative majority. It could be reasonably assumed that court cases would not be based on partisanship, and that their effects would be more extreme since the court's moderator had stepped down. By underestimating the benefits of gender influenced jurisprudence, another male on the bench made it possible for the Court to severely limit a woman's right to abortion. Gonzales v. Carhart came before the court in 2007, which since O'Connor had retired, left Ginsburg as the only female voice on the court. According to the facts of the case, the court was faced with deciding whether the Partial-Birth Abortion Ban Act of 2003, instituted by Congress was constitutional (Carhart Syllabus). The act stated that partial-birth abortion "is a gruesome and inhumane procedure that is never medically necessary and should be prohibited" (emphasis mine) (Ibid). Essentially this case was asking the court to reverse its Stenberg v. Carhart decision, and without O'Connor to be the swing vote, the reversal happened. Ginsburg's decision epitomizes gender influenced jurisprudence because her dissenting opinion shows how angered and baffled she is by the Court's majority to be so insensitive to allow this ban to be upheld. She claims "this way of thinking reflects ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited" (6). This shows her alarm at how the Court is retrogressing instead of progressing to ensure a woman's health and rights. Additionally she claims the decision to be "irrational" and "an effort to chip away at a right declared again and again by this Court-and with increasing comprehension of its centrality to women's lives" (8). It is clear how upset Ginsburg was in writing her opinion, because she, understandably, could not understand the logic in reversing a decision that took place only seven years earlier, especially when there is no exception for the mother's health. Ginsburg's opinion clearly shows how her gender influenced jurisprudence because of her concern that this case is a step backwards in women's rights, and the progress that O'Connor and Ginsburg have made for women.

It can be inferred that the outcome of Gonzales v. Carhart only occurred because O'Connor was not on the bench with Ginsburg. Had O'Connor been on the bench instead of another conservative male, it is unlikely that all partial-birth abortions would be banned because O'Connor would have used her "undue burden" test, like she did in Stenberg v. Carhart to determine that the respective law places a burden on the right to choose, and does not take into consideration an exception for the mother's health. Nevertheless, the absence of O'Connor's gender influenced jurisprudence has larger implications because Ginsburg alone cannot make the conservative majority compromise, and thus it can be argued that women's interests are being pushed aside with the new conservative court dynamic. In order to overcome this, it is essential that the Court recognize the need to have more women in government. Recognizing this need is an effect of understanding women's studies and the influences it has on political science. In an article for Political Research Quarterly entitled "Politics of Presence? Congresswomen and Symbolic Representation," Jennifer Lawless seeks to analyze what if any effects gender has had on the political process. She starts her analysis by characterizing the general issues that gender has influenced in the political world,

Gender politics literature stresses the importance of electing more women to high-level political office...[because] women are more likely than their male counterparts to promote legislation geared to ameliorate women's issues...and to conduct business in a manner that is egalitarian, cooperative, communicative and contextual (81). This shows how gender politics literature advocates for more women into office because they are different from their male counterparts. They are different obviously because they are more sensitive towards such women's issues as abortion. They are also different because they tend to communicate better, which is a gender based characteristic that Gilligan's theory highlights. Lawless uses her analysis to conclude that "Women represented by women will have higher levels of trust in government, external political efficacy, political participation, and political competence than women represented by men" (83). This shows the importance that gender has on American politics. Although Lawless is making this claim geared primarily toward women in congress, the same can be applied to women in the judiciary. Women seeing female justices will feel that the constitution is being interpreted in a manner that is not patriarchal since women would bring a distinctly gender influenced jurisprudence to the cases they decide, thus trust, efficacy and participation can increase. Going from one to two women on the Supreme Court was a step forward in recognizing the impact women can have on government, and when O'Connor was not replaced with another woman, it can be seen as a setback, especially after seeing the outcome of Gonzales v. Carhart.

The Gonzales v. Carhart decision is retrogressive to women's rights. This case occurred because O'Connor was not on the bench, and because President Bush did not try hard enough to replace her with another woman. This clearly reveals a lot about the Supreme Court and the role that gender identity, and other aspects of identity play on influencing the justices. Interpretation is subjective to identity influences. Ginsburg proves this when she claimed that she and O'Connor "have had the experience of growing up women and we have certain sensitivities that our male colleagues lack" (Associated Press 1). Abortion rights were therefore most protected when both O'Connor and Ginsburg were on the court because as women they sympathized and did not want that right taken away from other women. This has larger implications for the composition of the Supreme Court when recognizing the influence of gender identity and other identity influences, such as race and class. Although the number of justices has been fixed at nine since 1869, the overwhelming majority of those who sit on the bench are rich white males. This is hardly representative of the public, therefore future presidents should be mindful to make more attempts to incorporate more women and minorities to all federal courts. This should occur so that the Constitution is interpreted to be equally sensitive to gender, race and class, and not only from the patriarchal mindset of rich white men. The only way we can therefore have a representative court is by having it be representative of Americas population. As highlighted by the abortion issue, justices of different identities need to consider the societal implications of the Constitution so that laws can be modernized. By modernizing laws the needs of people can be met, such as when the right to privacy was modernized to apply to a woman's body. Even though the issue of modernizing laws falls in the middle of a heated strict and loose constructionist debate on the philosophy of constitutional law, it is clear that justices must take into account the social context so that the government can be responsive to the nation.

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