Thursday, September 27, 2018
Meg Penrose, The Way-Pavers: Eleven Supreme Court-worthy Women, Harvard J. Law & Gender (online) (July 2018)
Four women have served as associate justices on the United States Supreme Court. Since the Court’s inception in 1789, more than 160 individuals have been nominated to serve as Supreme Court justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court justices than women. Thirteen U.S. presidents have each nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently as many Catholics serving on the Supreme Court as the number of women confirmed in the Court’s entire history.
Women, once thought of as “one-at-a-time-curiosities” on the bench, now constitute nearly one-third of all state and federal judges. They occupy the highest posts on state supreme courts and can be found, in similar numbers, at the trial and appellate levels. If we limit our consideration to the current Supreme Court, women held one-third of the seats on our Supreme Court at the time of Justice Kennedy’s 2018 retirement. Yet, this number is deceptive since women on the highest court is a modern phenomenon.
Qualified women have been available for selection for many years—long before Justice Sandra Day O’Connor became the first woman on the Supreme Court, or FWOTSC, as she refers to herself. It was not until a 1980 campaign promise by then-Governor Ronald Reagan to appoint the first female justice to the Supreme Court that a woman broke one of our government’s last gender barriers. Presidents prior to that time were complicit in allowing male members of the Court, among other influences, to stave off appointments of well-qualified women. So, women waited. But now, women account for four of the last thirteen Supreme Court appointments and five of the past seventeen nominees. Clearly, the numbers are increasing.
This Essay presents the second scholarly ranking of female jurists deserving of a seat on the highest court in the land. The list celebrates eleven judicial way pavers: Ruth Bader Ginsburg, Sandra Day O’Connor, Sonia Sotomayor, Elena Kagan, Florence Allen, Constance Baker Motley, Shirley Huftstedler, Patricia Wald, Cornelia Kennedy, Harriet Miers and, Belva Lockwood. Each of these women is, or was, Supreme Court-worthy. Yet only four of them actually occupy or have occupied a place on the Court.