Bench Memos

Hiding Behind Sex Stereotypes?

From an AP story from last week on a speech that Justice Ginsburg gave in Toledo, Ohio: “Ginsburg, now the only woman on the court after the retirement of Sandra Day O’Connor, said having two women on the court brought a sense of caring and concern to the bench.” Just a few thoughts:

1. Imagine for a moment that a male justice – Scalia, for example – had made the same statement about the effect of female justices on the Court. Wouldn’t he be derided as perpetuating sexist stereotypes?

2. What basis does Ginsburg have for this observation? From the time that she joined the Court in 1993 until O’Connor’s recent resignation, there were two women on the Court. And there were likewise at least two women on the D.C. Circuit during the entirety of her 13-year tenure there. So what’s the less caring and less concerned baseline Ginsburg purports to be using? The weeks since Justice Alito joined the Court?

3. This would hardly be the first time that Ginsburg, the supposed champion of “gender equality,” has hidden behind sex stereotypes when they offer her some advantage. Ginsburg authored the Court’s 1996 opinion ruling that Virginia’s maintenance of VMI as a single-sex institution violated the Equal Protection Clause. As my Ethics and Public Policy Center colleague Wilfred M. McClay wrote in a Commentary magazine article (subscriber-only) on the case, Ginsburg in her opinion expresses “disdain for gender stereotypes” but “ends up employing them herself.” Specifically, she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, but then, in a footnote, concedes that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

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