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Madeleine M. Kunin Headshot

Elena Kagan: Does Gender Still Matter on the Supreme Court?

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What will it mean when Elena Kagan is confirmed, as expected, to become the third woman on the United States Supreme Court? Does gender still matter at a time when women appear to be doing so well, outsmarting boys in school, joining the work force in record numbers, and when young women dismiss feminism as "so yesterday."

My answer is yes, based on the opinions of two of the female justices who have served, Sandra Day O'Conner and Ruth Bader Ginsberg. When Justice O'Conner was named to the court in 1981, she was a lone voice, carrying the burden of representing all women. Now there will be three, reaching the magic number of one-third, thought necessary for women to make a difference beyond tokenism in any organization.

The three will not always agree, and neither should we expect them to, but they will have some things in common -- the most obvious is their life experiences. Every person is influenced by her or his experience, including the traditional white male justices,who have, until recently, provided the norm. When Justice O'Connor retired, Jan Crawford Greenberg noted that she was the "single most important voice on the nine-member tribunal," often finding middle ground on a sharply divided court.

"She looked at the practical effect of the law, Discussing a case which involved whether a police officer could order passengers out of a car during a search she said,' Do you mean to detain a pregnant woman and a baby in the rain?'"

It was Justice Ruth Bader Ginsberg who supported Lily Ledbetter when she asked the Supreme Court to uphold her demand for back pay for wage discrimination. The majority dismissed the case on technical grounds -- Ledbetter had not filed the case within 180-days of experiencing discrimination.

"That's not how discrimination works," Ginsberg explained. She should know, having experienced it first hand herself when she graduated near the top of her class and could not get a job at a law firm.

When a teen-age girl was forced to strip naked in front of school authorities because of allegedly concealing drugs, her mother sued. Some of the men on the court thought this was no big deal; they all had been naked in the locker room. Ginsberg had to explain, it's different for girls. Eventually, a majority voted with her.

It's too early to know how Judge Sotomayor will be influenced by her gender, but there is no doubt that her story -- growing coming up the hard way to realize the American dream, will give her a different perspective from those who have had their way smoothed by privilege.

Elena Kagan will being her own strengths -- she knows what it means to break barriers -- having achieved several: becoming the nation's first female solicitor general and the first woman named Dean of Harvard Law School where she succeeded bringing diverging opinions together, a skill much needed on the court.

Having broken those barriers herself, it is possible what she will enable other women to break the more ordinary barriers that restrict many women's lives today -- because she knows through her own experience -- that they still exist.