Kagan Gives Women `Critical Mass' on Court Where They're Exception to Rule

As the U.S. Supreme Court’s third female member, Elena Kagan would represent a shift laden with symbolism, and perhaps substance as well.

Kagan’s confirmation by the Senate would put women in three of the court’s nine chairs for the first time in its 221-year history. Twenty-nine years after Sandra Day O’Connor broke the court’s gender barrier, women would occupy about the same percentage they constitute in the legal profession at large.

Studies suggest that the appointment of a third female director can change a corporate board’s dynamics, and women’s advocates say they hope the 50-year-old Kagan would have a similar effect, burying the perception and the reality of the court as a male-dominated enclave.

“What we have seen repeatedly with two women on the Supreme Court is that they are seen as exceptions to the rule,” said Marcia Greenberger, co-president of the National Women’s Law Center in Washington. Kagan’s appointment, she said, moves “toward the day when it’s accepted that women are just as likely as men to be on the Supreme Court.”

Only a year ago, the court had just one female justice, Ruth Bader Ginsburg, who told USA Today in 2007 that she was “lonely” after O’Connor’s retirement the previous year.

Doubling the Number

Obama doubled that number last year by appointing Sonia Sotomayor. With Kagan’s selection, he became the first president to nominate two women to the court.

The prospect of having three women on the court was an “appealing” one to Obama, said David Axelrod, the president’s senior adviser. “It helps make the court a more representative body.”

O’Connor, interviewed today on ABC’s “Good Morning America,” said three women on the high court could make a big difference. “I’m so pleased,” she said. “That’s much better than one or two.”

A 2009 Supreme Court case highlighted the difference even one female justice can make. The case concerned a 13-year-old girl who was ordered to strip to her underwear so school officials could search her for prescription drugs.

During arguments, Justice Stephen Breyer wondered aloud whether a strip search was such a traumatic event for students who change clothes in front of others for gym class. Ginsburg bristled, saying the girl had been asked to shake out her bra and waistband.

Humiliating Incident

Ginsburg later told USA Today that some of her colleagues didn’t appreciate how humiliating the incident might have been.

“They have never been a 13-year-old girl,” Ginsburg said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

By the end of the court’s term, Breyer and a majority of the court had come around to Ginsburg’s view, ruling 8-1 that officials had violated the girl’s constitutional rights.

Whether that case represents more than an isolated example is a matter of dispute. Most Supreme Court cases don’t directly involve issues of gender. That leads some people, including Roger Clegg, president of the Center for Equal Opportunity, to question whether sex is a legitimate consideration in selecting a justice.

“Even if, once in a great while, there comes along a case where being a woman (or a man) provides some particular insight, does that justify choosing someone other than the most qualified person, who will be sitting on all the cases?” asked Clegg, whose Falls Church, Virginia, group fights racial preferences.

The Opposite Sex

“And how likely is it that such an insight, once explained by a litigant, will not be appreciated by a justice of the opposite sex?”

Even as they have called for more female justices, O’Connor and Ginsburg have both said that “a wise old man and a wise old woman” will reach the same conclusions.

In the corporate context, the presence of women on boards makes a difference, according to a 2006 study by researchers led by Vicki W. Kramer, a Philadelphia organizational consultant. The study was based on interviews with chief executive officers, corporate secretaries and female directors.

The study found that boards with women are more likely to think about the broad implications of company actions, considering not just shareholders but also employees, customers and the community at large.

The effect women have depends on their numbers, the study found. Lone female directors reported that they felt isolated and that they were often perceived as representatives of their gender. The phenomenon only partially disappeared with the addition of a second woman.

A Tipping Point

The presence of a third woman marked a tipping point, creating the “critical mass” necessary to put the female directors on the same plane as their colleagues, the study found. “With three, they just began to become members of the board,” Kramer said.

The Supreme Court accepted the “critical mass” reasoning in 2003 when it upheld the University of Michigan’s use of race in law school admissions. Michigan argued that increased black and Hispanic enrollment would overcome tokenism.

The winning lawyer in that case, Maureen Mahoney of Latham and Watkins LLP, questions whether the “critical mass” concept applies to a Supreme Court that would include Ginsburg, Sotomayor and Kagan.

“These are people who have already achieved the pinnacle of success in our profession,” said Mahoney, who has argued 21 Supreme Court cases. “They are confident women.”

Mahoney called the appointment of a third woman “a great benchmark of women’s professional progress in America.”

At the same time, she said, “I don’t think it’s going to be any kind of a sea change in the way the court works.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.