How Many Women is Enough?
“Mistress Lockwood, you are a woman.” And with five words, the first woman who attempted entry into the legal profession was barred from it.
This was not an auspicious beginning for female jurists. In the 148 years since Belva Lockwood was denied entry to the Virginia Bar on the basis of her sex, there have been incredible advancements for women in the law, but incredible barriers remain.
Today, women outnumber and outperform men in law schools, but men serve as federal court judges at more than double the rate of women. Our nation’s highest court has an abysmal track record on this point. The vast majority of the Supreme Court Justices in our nation’s history have been men. The first woman, Sandra Day O’Connor, wasn’t confirmed until 1981. In the 41 years since Justice O’Connor took the bench, the number of female justices has climbed from 1 to a total of 6. Six out of 115. Six over the course of 232 years. Still, for the first time in history, four of our Supreme Court Justices will be women. By far, the most ever. And so the question during this month when we celebrate women and mothers: does it really matter if women are represented equally in the courts of our nation?
The answer, I think, lies in the asking. The answer is “yes.” It’s important precisely because it’s still a question, and it is still a question because in it lurks an element of the unusual. While unusual is not necessarily undesirable, it is “un” nonetheless. Unfamiliar, uncomfortable, uncommon. The unusual draws attention to itself in the very way that magnifies its “un”-ness. One female justice is unusual because she is not male, and so we can be trapped into focusing on what matters least in judging her true abilities: her gender.
It's a subtle trap, because gender is often a blatant layer: you can see it, hear it, even sense it. But it’s only a layer. Beyond it lie human reserves of artistry, intellect, wisdom, and compassion. These are the reserves of every human, and so there is a danger on focusing too narrowly on the gender-shell that surrounds them. It is a focus that Justice O’Connor has recognized as thorny: “When gender distinctiveness becomes a mantra,” she wrote, “I worry that, in our voyage from the eighteenth century to the present, we have not really traveled all that far.”
In something of a paradox, then, we must focus on the gender of our jurists only until there are so many women in the judiciary that we cannot focus on just one. Until we reach a critical mass where we are so accustomed to seeing a woman author an opinion that her gender is utterly irrelevant. Until then, and not a minute longer. And when the numbers are right, society shifts its focus on its own.
For 1700 years, the world was largely without female authors. As the 18th century drew to a close, however, middle-class women picked up their pens. Poetesses preceded novelists, and over the course of a century, female writers established their genius. Jane Austen and George Elliott wrote masterpieces, heading a genealogical line of women writers who, once amassed, ensured that it was no longer unusual for women to write. Reaching this critical mass freed both women and the world from focusing, as they always had, on a woman’s gender. Given this freedom, women turned to exploring and expanding ideas once only available to men, and the world reaps the benefits. Maya Angelou and Harper Lee sit beside Ernest Hemingway and William Faulkner on our shelves without our slightest notice of their gender. Because female authors are no longer unusual only for their sex, we focus instead on their substance.
We need female jurists for the same reason the world needed female authors: not because we need distinctively female judicial opinions, but because we need so many of them that our focus settles first, and naturally, on the substance of their position. Without such a critical mass, women will stay relegated to places where decisions are made for and about them without their input. Even in 1981, after she was nominated, a man wrote to Justice O’Connor, explaining how “disgusted and disappointed [he was] that President Reagan has nominated a woman to the Supreme Court.” The man closed his letter: “I hope that you turn down the nomination.”
These are the words of a man responding to one female justice. A number which made it easy for him to believe a woman could not interpret the laws of our land in its highest court, because no woman ever had. A number that is a stark reminder of how important it is for young girls to be offered intellectual mentors of the highest caliber, and be offered them in droves. “The self-perception of women,” wrote Justice O’Connor, “is informed by [the] examples” of other women. If there are only a few examples to look to, what then is the perception?
Women belong in the courts of our country. We need them there. We need so many that we no longer notice them for their gender. It won’t happen overnight. As Justice Ginsburg recognized, “[r]eal change, enduring change, happens one step at a time.” But it’s worth taking those steps—hundreds or even thousands of them—however many it takes, especially during this month when we are focused on celebrating women and mothers.