Once Carter appointed women to the bench in numbers, there was no turning back. President Reagan made history when he appointed the first woman to the Supreme Court, my dear colleague, Justice Sandra Day O’Connor. He also appointed 28 women to other federal courts.46 The first President Bush, in his single term in office, appointed 36 women.47 President Clinton appointed a grand total of 104 women, and the current president to date has appointed 52 women.48
Today, every federal court of appeals save the First and Eighth Circuits has at least two active women judges. Nine women have served as chief judge of a U.S. court of appeals, including three who currently occupy that post. Forty women have served as chief judge of a U.S. district court, including the seventeen now holding that position. All told, more than 250 women have served as life-tenured federal judges, fifty-eight of them on appellate courts. Yes, there is a way to go, considering that women make up only about one-fourth of the federal judiciary.49 But what a distance we have come since my 1959 graduation from law school, when Florence Allen remained the sole woman ever to have served on the federal appellate bench.
In the state courts, progress is similarly marked. Every state except Oregon, Indiana, and Kentucky has at least one woman on its court of last resort; 30 percent of the chief justices of those courts are women.
Looking beyond our borders, however, we are not in the lead. For example, the Chief Justice of the Supreme Court of Canada is a woman, as are three of that court’s eight other Justices. The Chief Justice of New Zealand is a woman. Four of the sixteen judges on Germany’s Federal Constitutional Court are women, and a woman served as president of that court from 1994 to 2002. Currently, five women are members of the European Court of Justice, two as judges and three as advocates-general. Women account for eight out of eighteen judges on the International Criminal Court; one of them serves as that court’s first vice president.
At the Court on which I serve, the picture today is not promising. Since Justice O’Connor’s retirement effective January 31, 2006, I have been all alone in my corner on the bench.II In the Term just ended, 117 men, but only 26 women, argued cases before the U.S. Supreme Court, and 2,980 men, as opposed to only 1,603 women, elected to become members of the Court’s Bar. As Judith Resnik reminds me, no woman, to this date, has ever been appointed by the Court as special master in an original proceeding, i.e., a case in which the Supreme Court is the tribunal of first and last resort. (The Court has original jurisdiction dominantly in cases between states of the United States, or between the United States and one or more states.) Twenty-three men, but only sixteen women served as law clerks last Term. Next Term will set a low for the decade: thirty of the new clerks are men, only seven are women.
A question I am often asked: What does women’s participation in numbers on the bench add to our judicial system? It is true, as Jeanne Coyne of Minnesota’s Supreme Court famously said: at the end of the day, a wise old man and a wise old woman will reach the same decision.50 But it is also true that women, like persons of different racial groups and ethnic origins, contribute what the late Fifth Circuit Judge Alvin Rubin described as “a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.” 51 Our system of justice is surely richer for the diversity of background and experience of its judges. It was poorer when nearly all of its participants were cut from the same mold.
* * *
I. In these remarks, Justice Ginsburg pays tribute to waypavers including Arabella Mansfield, Lemma Barkaloo, Myra Bradwell, Barbara Nachtrieb Armstrong, Florence Ellinwood Allen, Burnita Shelton Matthews, and Shirley Mount Hufstedler. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. The version reprinted here was delivered at the American Sociological Association Annual Meeting in Montreal on August 11, 2006, at the request of Cynthia Epstein. Justice Ginsburg noted that “[w]hen my dear friend, Cynthia Epstein, asked me to speak at this Meeting, I could hardly resist the invitation. Cynthia’s thesis on women in law was a source I mined even before her work became a book in print.” Justice Ginsburg’s remarks were subsequently published in 30 Harvard Journal of Law & Gender 1 (Winter 2007). We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.
II. Since these remarks were delivered, two more female Justices, Sonia Sotomayor and Elena Kagan, have joined the Supreme Court.
3
From Benjamin to Brandeis to Breyer
Is There a Jewish Seat on the United States Supreme Court?I
The man who might have preceded Justice Brandeis by some sixty-three years as first Jewish member of the Supreme Court had a less secure start in life than did Brandeis, and a less saintly character. His name was Judah P. Benjamin. His career path is intriguing.
Born in 1811 in St. Croix in the Virgin Islands, the son of Sephardic Jews, Benjamin grew up in Charleston, South Carolina, and became a celebrated lawyer in antebellum New Orleans. Though his boyhood, unlike Brandeis’, was heavily steeped in Jewish tradition, as an adult, he married outside the faith in a Catholic ceremony, and did not keep Jewish laws or celebrate Jewish holidays. Yet he could not escape his Jewish identity. The world in which he lived would not have allowed him to do that.
In 1853, President Millard Fillmore nominated Benjamin to become an Associate Justice of the United States Supreme Court. Chosen the preceding year as one of Louisiana’s two U.S. senators, Benjamin declined the High Court nomination. His preference for the Senate suggests that the Supreme Court had not yet become the coequal branch of government it is today. Benjamin was the first acknowledged Jew to hold a U.S. Senate seat; he commenced, in 1858, his second six-year term.
Had Benjamin accepted the Supreme Court post, his service likely would have been brief—certainly far shorter than Brandeis’ twenty-three years. In early 1861, in the wake of Louisiana’s secession from the Union, Benjamin resigned his Senate seat. He probably would have resigned a seat on the Court had he held one.
Benjamin is perhaps best known in the United States for his stirring orations in the pre–Civil War Senate on behalf of southern interests—orations expressing sentiments with which we would today strongly disagree—and later for his service as attorney general, secretary of war, and finally secretary of state in the Confederate cabinet of Jefferson Davis. Although Judah Benjamin achieved high office, he lived through a time of virulent anti-Semitism in America. Political enemies called him Judas Iscariot Benjamin. He was ridiculed for his Jewishness in the press, by military leaders on both sides (by northern general Ulysses S. Grant, and southern general “Stonewall” Jackson), and by his fellow Confederate politicians.
After the Confederate surrender, Benjamin fled to England; en route, he narrowly survived close encounters with victorious Union troops, rough waters, and storms at sea. Benjamin’s political ventures in the U.S. Senate and in the Confederacy of Southern States were bracketed by two discrete but equally remarkable legal careers, the first in New Orleans, the second in Britain.
Having left Yale College after two years, under cloudy circumstances, without completing the requirements for a degree, Benjamin came to New Orleans in 1832 to seek his fortune. He studied and worked hard, and was called to the Bar that same year. Although he struggled initially, his fame and wealth grew large after the publication, in 1834, of a digest of reported decisions of the Supreme Court of Louisiana and of that tribunal’s pre-statehood predecessor. Benjamin’s book treated comprehensively for the first time Louisiana’s uniquely cosmopolitan and complex legal system, derived from Roman, Spanish, French, and English sources. Benjamin’s flourishing practice and the public attention he garnered helped to propel his 1852 election by the Louisiana Legislature to the United States Senate. (Recall that until 1913, when the Seventeenth Amendment became effective, U.S. senators were chosen not directly by the people, but by the legislatures of the several states.)
Benjamin’s fortune
plummeted with the defeat of the Confederacy. He arrived in England with little money and most of his property lost or confiscated. His Louisiana Creole wife and a daughter reared Catholic had long before settled in Paris; they anticipated continuing support from Benjamin in the comfortable style to which they had grown accustomed. He nevertheless resisted business opportunities in the French capital, preferring the independence of a law practice, this time as a British barrister.
Benjamin opted for a second career at the Bar notwithstanding the requirement that he start over by enrolling as a student at an Inn of Court and serving an apprenticeship. This, Benjamin’s contemporaries reported, he undertook cheerfully and with fabulous industry, although he was doubtless relieved when the Inn of Court to which he belonged, Lincoln’s Inn, determined to admit him to full membership after six months rather than the usual three years.
Benjamin became a British barrister at age fifty-five. His situation at that mature stage of life closely paralleled conditions of his youth. He was a newly minted lawyer with a struggling practice, but, he wrote to a friend, “as much interested in my profession as when I first commenced as a boy.” Repeating his Louisiana progress, Benjamin made his reputation among his new peers by publication. Drawing on the knowledge of civilian systems gained during his practice in Louisiana, Benjamin produced a work in England that came to be known as Benjamin on Sales. First published in 1868, the book was a near-instant legal classic. Its author was much praised, and Benjamin passed the remainder of his days as a top-earning, highly esteemed, mainly appellate advocate. He became a Queen’s Counsel seven years after his admission to the Bar. His voice was heard in appeals to the House of Lords and the Judicial Committee of the Privy Council in no fewer than 136 reported cases in the ten years between 1872 and 1882.
A biographer of Benjamin tells us that, “[h]owever desperate his case, Benjamin habitually addressed the court as if it were impossible for him to lose.” This indomitable cast of mind characterized both Benjamin’s courtroom advocacy and his response to fortune’s vicissitudes. He rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished nation. The London Times, in an obituary, described Judah Benjamin as a man with “that elastic resistance to evil fortune which preserved [his] ancestors through a succession of exiles and plunderings.”
Louis Dembitz Brandeis, it is well known, was the first Jew to serve on the Supreme Court of the United States. His tenure ran some twenty-three years, from 1916 until 1939. Raised in Louisville, Kentucky, Brandeis graduated from Harvard Law School in 1876 at age twenty, with the highest scholastic average in that law school’s history. He maintained close and continuing relationships with his teachers there, and, at age twenty-six, was called back to lecture on the law of evidence. During his years at the Bar, Brandeis was called “the People’s Attorney,” descriptive of his large part in the social and economic reform movements of the era. He helped to promote the pro bono tradition among lawyers in the United States. Spending at least half his long working days on public causes, Brandeis reimbursed his Boston law firm for the time he devoted to nonpaying matters.
Overcoming his own initial doubts, Brandeis eventually became a staunch supporter of women’s suffrage. In this regard, he emphasized the obligations as much as the rights of citizenship. In 1913 he wrote simply and to the point: “We cannot relieve her from the duty of taking part in public affairs.” This theme of civic responsibility seems to me Brandeis’ leitmotif, first as a lawyer, and later as a judge.
Brandeis made large donations of his wealth from practice to good causes and lived frugally at home. A friend recounted that, whenever he went to the Brandeis home for dinner, he ate before, and afterward.
In 1916, when President Wilson appointed Brandeis to the Court, he was sixty years old, my age in 1993 when President Clinton appointed me to the Court. One of Brandeis’ colleagues, James Clark McReynolds, was openly anti-Semitic, as were some detractors at the time of his nomination. When Brandeis spoke in conference, McReynolds would rise and leave the room. No official photograph was taken of the Court in 1924 because McReynolds refused to sit next to Brandeis, where McReynolds, appointed by Wilson two years before Brandeis, belonged on the basis of seniority.
Most people who encountered Brandeis were of a different view. Chief Justice Charles Evans Hughes described him as “master of both microscope and telescope.” Commenting on Brandeis’ ability to transform the little case before him into a larger truth, Justice Oliver Wendell Holmes said Brandeis had the art of seeing the general in the particular. His opinions are gems, guiding us to this very day. Admirers, both Jewish and Gentile, turned to the scriptures to find words adequate to describe his contributions to U.S. constitutional thought. President Franklin Delano Roosevelt, among others, called Brandeis not “Judas,” but “Isaiah.”
Brandeis elaborated the canons of judicial restraint more powerfully than any other jurist, cautioning judges to be ever on guard against “erect[ing] our prejudices into legal principles.” At the same time, he was an architect—a master builder—of the constitutional right to privacy and of the modern jurisprudence of free speech. He wrote, most famously:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Brandeis was not a participant in religious ceremonies or services, but he was an ardent Zionist, and he encouraged the next two Jewish Justices—Cardozo and Frankfurter—to become members of the Zionist Organization of America. Brandeis scholar Melvin Urofsky commented that Brandeis brought three gifts to American Zionism: organizational talent; an ability to set goals and to lead men and women to achieve them; and above all, an idealism that recast Zionist thought in a way that captivated Jews already well established in the United States. Jews abroad who needed to flee from anti-Semitism, Brandeis urged, would have a home in the land of Israel, a place to build a new society, a fair and open one, he hoped, free from the prejudices that marked much of Europe; Jews comfortably situated in the United States, in a complementary way, would have a mission, an obligation to help their kinsmen build that new land.
When Brandeis retired from the Supreme Court, his colleagues wrote in their farewell letter:
Your long practical experience and intimate knowledge of affairs, the wide range of your researches and your grasp of the most difficult problems, together with your power of analysis and your thoroughness in exposition, have made your judicial career one of extraordinary distinction and far-reaching influence.
Law as protector of the oppressed, the poor, the minority, the loner, is evident in the life body of work of Justice Brandeis, as it is in the legacies of Justices Cardozo, Frankfurter, Goldberg, and Fortas, the remaining four of the first five Jewish Justices. Frankfurter, once distressed when the Court rejected his view in a case, reminded his brethren, defensively, that he “belong[ed] to the most vilified and persecuted minority in history.” I prefer Arthur Goldberg’s affirmative comment: “My concern for justice, for peace, for enlightenment,” Goldberg said, “stem[s] from my heritage.” The other Jewish Justices could have reached the same judgment. Justice Breyer and I are fortunate to be linked to that heritage.
But Justice Breyer’s situation and mine is distin
ct from that of the first five Jewish Justices. I can best explain the difference by recounting a bit of history called to my attention in remarks made some years ago by Seth P. Waxman. Seth served with distinction as solicitor general of the United States from 1997 until January 2001.
Seth spoke of one of his predecessors, Philip Perlman, the first Jewish solicitor general. Perlman successfully urged, in a friend-of-the-court brief, the unconstitutionality of racially restrictive covenants on real property. The case was Shelley v. Kraemer, decided in 1948. The brief for the United States was written by four lawyers, all of them Jewish: Philip Elman, Oscar Davis, Hilbert Zarky, and Stanley Silverberg. All the names, save Perlman’s, were deleted from the filed brief. The decision to delete the brief drafters’ names was made by Arnold Raum, Perlman’s principal assistant and himself a Jew. “It’s bad enough,” Raum said, “that Perlman’s name has to be there.” It wouldn’t do, he thought, to make it so evident that the position of the United States was “put out by a bunch of Jews.”
Consider in that light President Clinton’s appointments in 1993 and 1994 of the 107th and 108th Justices, first me, then Justice Breyer. Our backgrounds have strong resemblances: we had taught law for several years and served on federal courts of appeals for more years. And we are both Jews. In contrast to Frankfurter, Goldberg, and Fortas, however, no one regarded Ginsburg or Breyer as filling a Jewish seat.II Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to President Clinton’s appointments.
The security I feel is shown by the command from Deuteronomy displayed in artworks, in Hebrew letters, on three walls and a table in my chambers. “Zedek, Zedek, tirdof,” “Justice, Justice shalt thou pursue,” these artworks proclaim; they are ever-present reminders of what judges must do “that they may thrive.” There is also a large silver mezuzah mounted on my door post. It is a gift from super-bright teenage students at the Shulamith School for Girls in Brooklyn, New York, the school one of my dearest law clerks attended.
My Own Words Page 8