Post-Gender Justice

by Naomi Schoenbaum | July 12, 2010

The past few months have seen plenty of commentary about Elena Kagan’s status as one of only a few women ever nominated to the Supreme Court. But much of this commentary has rung hollow, consisting of platitudes about how she is a “trailblazer.” Practically no one has focused on what is perhaps a far more important aspect of her gender: Elena Kagan might very well be the first female nominee to the Supreme Court who does not define her gender as salient to her public life.

Kagan has been deemed a female pioneer: the first woman to lead Harvard Law School and to serve as solicitor general. Yet, despite this impressive list of firsts, Kagan (who was dean of Harvard Law School when I was a second- and third-year student there) has not taken up the helm as a leader on women’s issues, or explicitly identified herself as a woman leader in the law. This has something to do with her age. The first generation of women lawyers to make it to the highest echelons of the American legal profession—who faced enormous barriers in the profession simply because they were women—had no choice but to take on gender as a defining feature of their legal education and career. For instance, despite their sterling credentials, both the Reagan-nominated Sandra Day O’Connor and the Clinton-nominated Ruth Bader Ginsburg were initially denied legal employment because of their gender. Both spoke extensively—prior to, and during, their years on the Court—about the challenges they faced as women in the law. Shortly after joining the Court, O’Connor said she would “bring the understanding of a woman to the Court,” and Ginsburg, a pioneer of women’s sex discrimination jurisprudence as a Supreme Court advocate, echoed this sentiment, stating that “there are perceptions that we have because we are women [justices],” referring to herself and O’Connor.

Those in O’Connor and Ginsburg’s generation paved the way for the next generation of elite women lawyers, including figures like Kagan and Sonia Sotomayor, both of whom had the luxury to opt notto focus on their sex as a facet of their career. Yet Sotomayor chose to make gender a key element of her identity anyway. We all know, by now, of her notorious comment about the views of a “wise Latina.” But in that lecture, Sotomayor described her gender, and the challenges that came with it, as a central element of her career. She remarked that “[e]ach day on the bench I learn something new . . . about being a professional Latina woman in a world that sometimes looks at me with suspicion,” and, echoing O'Connor and Ginsburg, noted that “our experiences as women . . . affect our decisions.”

Kagan, by contrast, has given no indication that she considers her gender to be a factor in her legal thinking. In her opening statement two weeks ago, she paid tribute to O’Connor and Ginsburg, and recognized that she herself wouldn’t be where she was without them. But her broader career, including her rise in academia and her tenure in the White House, has been marked by no particular interest in women's issues. The most relevant of her few academic writings on gender-related topics—an article on the constitutionality of pornography and a student note about Title VII of the Civil Rights Act, which revolutionized sex discrimination law—focused on doctrinal or procedural issues, rather than substantive questions related to gender equality. And a look back through her work as counsel to President Clinton reveals that she advanced a number of positions on issues affecting women—including Medicare funding for abortions, a late-term abortion ban, and expansion of the Family and Medical Leave Act—but avoided discussion of the role gender played in these debates.

After reaching milestones in academia and the Obama administration, Kagan has been invited to speak on issues related to women in the legal profession, but, on these occasions, she has concentrated on the data and avoided statements about sex discrimination. In discussing gender disparities in the law, she has focused on women's choices, such as how women opt to “move around in different areas” rather than aim for “the pinnacle,” and how “many of the issues that women face in the workplace are issues for men as well.” What's more, when Kagan has spoken on women's issues, in contrast to O'Connor, Ginsburg, and Sotomayor, she has steered clear of discussing the way gender affected her legal career. For example, in a panel moderated by O'Connor about women practicing before the Supreme Court, in which the challenges facing women lawyers were aired extensively and each of the other panelists addressed her personal struggles, Kagan was notably mum on how gender affected her professional experience—with the exception of whether to don the traditional “morning coat” of the solicitor general. In a speech to the New York City bar association on the status of women in the legal profession, Kagan likewise kept quiet on her own experience related to the topic. About her time as dean, Kagan told the university-run Harvard Gazette that she did not perceive differential treatment from colleagues on account of her gender. Her gender, she said, is “not something I think about on a daily basis, and it's something that in many ways has seemed remarkably not relevant in the job.”

Of course, none of this is dispositive. But Kagan's virtual silence on how gender issues have affected her career—and her relative silence compared to her fellow female nominees to the Court—is, at the very least, striking. Like President Obama, the man who nominated her, she has portrayed herself as a figure beyond identity politics.

Regardless of how she defines herself, having women like Kagan in powerful places enhances the legitimacy of our institutions, and allows girls to aspire to everything boys do. But what does all this mean for the Supreme Court’s jurisprudence? The short answer: It’s complicated. For one thing, it’s hard to imagine Kagan being as outspoken on gender as Ginsburg has been during oral arguments. Meanwhile, the research on gender differences in judging has been mixed. The best recent study on women judges (by Christina Boyd, Lee Epstein, and Andrew D. Martin) suggests that—in contrast to the widespread belief that women bring a markedly different worldview to the judiciary—female judges do not reach different decisions than male judges in most categories of cases.

The one exception, however, comes in sex discrimination cases. There, the study found that women judges are more likely to recognize discrimination, and that male judges sitting on panels with women judges are influenced by the presence of their female colleagues. The study attributed both these phenomena to an “informational” process—that is, women bring a different understanding to sex discrimination cases due to common professional experiences, and learning about these experiences seems to influence how male colleagues vote.

Because Kagan tends not to speak publicly about the subject, it’s difficult to know whether she feels that she has ever experienced discrimination. Of course, even if she does not feel that she has experienced discrimination, Kagan is likely to vote with the liberal consensus on such issues. But, if Boyd, Epstein, and Martin’s theory holds, Kagan’s personal experiences could still come into play in two ways: First, in the unusual sex discrimination case in which the left wing of the court is not in agreement—such as a recent pregnancy discrimination case—Kagan’s view of her experiences or lack of experiences with discrimination could make a difference in her vote. Moreover, even if she believes that she has experienced discrimination, her reticence on the subject could limit her ability to influence male justices in sex discrimination cases.

It is important to note, though, that all this is speculative. Ultimately, Kagan’s post-identity approach to gender may tell us more about how the women’s movement has evolved in recent decades than it does about her future jurisprudence on the Supreme Court.

Naomi Schoenbaum is a Bigelow Fellow at the University of Chicago Law School.

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