NEAL CONAN, host:
It's virtually certain that President Obama will nominate at least one new Supreme Court justice over the next - the course of the next four years, and many believe he may get that opportunity in a few months. With just one woman on the high court at the moment, some argue it would be a good idea to name a woman next time and maybe the time after that, too.
In a column on Slate.com over the weekend, Dahlia Lithwick wrote that the arguments go beyond the appearance of gender equality, that some evidence suggests that female judges think and rule differently.
Is that right? And if so, is that a good thing? 800-989-8255, email us: email@example.com. You can join the conversation on our Web site as well. That's at npr.org, click on TALK OF THE NATION.
Dahlia Lithwick is a senior legal correspondent and senior editor at the online magazine Slate.com, and joins us today from the studios at the University of Virginia in Charlottesville.
Nice to have you back on the program.
DAHLIA LITHWICK (Senior Editor, Slate.com): Thank you for having me.
CONAN: And what do we know about how women rule as opposed to men?
LITHWICK: Well, we don't know very much, Neal. They've been studying this issue since the mid'80s. There's been a sort of vogue and legal scholarship to try to suss out whether women, in fact, think differently on the bench from men.
This started in 1986 with what was at the time a sort of landmark paper by a professor who is now at Vanderbilt University called Suzanna Sherry. What she did is sit down with all of Sandra Day O'Connor's opinions at the time and tried to figure out whether there was what she called, quote, "a different voice" at play here.
In other words, she was building on some earlier scholarship by a psychologist called Carol Gilligan. You may remember she wrote that landmark 1982 book called "In A Different Voice" that basically took the position that girls reason differently from boys, that girls' moral reasoning is fundamentally different. So, Suzanna Sherry sort of tried to tease that out in O'Connor's scholarship.
Since then, there's been this kind of war in the legal academy between one camp that says, yes, it's true, here's all this evidence. Look at Ginsburg, look at O'Connor, look at women judges, women think differently. And this other line of reasoning that goes, no, we're all the same, you know, let's not generalize, and certainly, let's not say women are sensitive and fuzzy and men are rigorous and serious.
CONAN: Yeah, because obviously individuals vary and to go just one justice, to say Sandra Day O'Connor versus, say, Antonin Scalia, that seems ridiculous.
LITHWICK: Right. It's a very, very - you're looking at a sampling of two women jurists over a very small period of time. One of the interesting things in writing this piece was looking at a paper that actually is much more recent than the Suzanna Sherry study.
There was a 2008 paper that was called, quote, "Untangling the Causal Effects of Sex on Judging." This is a much more longitudinal study. It studied all of the decisions that had to do with sex discrimination cases that came up before the federal appeals court and circuit courts between 1995 and 2002.
This is a much larger sampling of women judges. And what they found was that there was, in fact, significant - they said the male judges were 10 percent more likely to rule against the victim of sex discrimination in sex discrimination cases. So they really did find a measurable effect.
This, again, because it's about sex discrimination, it's not about contracts, it may be a sort of small, you know, it may only be that men and women rule differently when it comes to gender issues. But there certainly was an effect.
And the more interesting part of this study, Neal, was that they found on three judge panels, when a woman was one of the judges, men were inclined to conform their views to the views of the woman judge on the panel. And that was almost the more intriguing thing that they came up with, that men maybe sort of changing their minds when they're sitting on a panel with a woman judge.
CONAN: And that's interesting, because obviously at a higher appellate court levels, and obviously on the Supreme Court as well, it's not just one judge sitting there ruling. It's a panel of judges.
And that's a fascinating ruling. And you made a comparison to that to the experience of having a Thurgood Marshall on the Supreme Court, obviously the first African-American to serve there. And no matter how much people thought they understood the experience of African-Americans, sometimes they were brought up a little short.
LITHWICK: Well, right. I think one of the things that's very, very intriguing is that when we look at judges and we look at their opinions and isolation, we have this notion that they live in a bubble, you know? They're just sort of a brain in a vat that plugs in. But of course, the nine justices on the Supreme Court exert a tremendous amount of influence on one another, particularly when it comes to issues that they know a lot about and the other - their colleagues don't.
And so one of the things that O'Connor has always been very, very open about is the extent to which, you know, she grew up in a ranch in Arizona, she wasn't really personally directly affected by, you know, the sort of race wars that were going on in the rest of country.
And so for her, sitting next to Thurgood Marshall and hearing his stories - and she talks about him as a storyteller, not as a great influential legal theorist, but as a storyteller who could, sort of, say, these are my experiences, this is what I saw, this is what I know -and how much that affected her own thinking.
So it seems to me that this question of how justices influence each other off the books is almost more intriguing and less studied than the question of how their great intellectual frameworks are shaped.
I think it's ridiculous to suggest that they don't influence one another. And that does raise this question of if you only have one woman on the Supreme Court, as we do at this time, how is she telling our stories and who's really listening.
CONAN: 800-998-8255 is the number to call. E-mail us: firstname.lastname@example.org. Should the next appointment to the Supreme Court be a woman? Should the next two or three appointments to the Supreme Court be a woman? And, do women judges rule differently than men?
And let's see if we can begin with Joseph(ph). Joseph calling us from Seattle.
JOSEPH (Caller): Hi. Well, I think this is not a new thing as far as I'm concerned. Women are good listeners. And if you look at - you go beyond even the judicial system. It's true even in medicine. I happen to be a physician. And sometime, when I seek help from my colleagues, I go to the women. They listen. So, I would like to see probably half of the members of the Superior Court being women.
JOSEPH: And that this - I'd like to see more than half.
CONAN: I wonder, Dahlia Lithwick, is there any way to measure that, any way to see that function?
JOSEPH: Well, there is…
Ms. LITHWICK: Well, it's sort of interesting. I mean, I think that the principle that Joseph is articulating is certainly one that we saw work in Carol Gilligan's work and in Suzanna Sherry, which is this idea that women are more relational, they're more other-focused, they're more about consensus, they're more about making sure everybody at the table is okay.
So those are certainly, I think, views of women that, he's right, go way, way back. Now, whether they're empirically proven or not is another question. I think one way to think about this - and Justice Ginsburg talked about this this very weekend, she was at a symposium in Ohio. And she pointed out that the Canadian Supreme Court has four women on it, including a chief justice who's a woman.
And, you know, she was making the larger point that this is insane that there's only one woman justice on our Supreme Court. And that in fact she said she's lonely there, and she really bemoaned how bad it looks to have only one woman there.
But I do think that we're getting ready to look at empirical studies of comparing the Supreme Court with the Canadian Supreme Court, and trying to tease out these questions of whether women are, in fact, more empathetic, more inclusive, more concerned about the welfare of the group.
I don't know if those stereotypes hold true. As I said, the studies are very, very equivocal. And as you said, that's partly because you're looking at one justice over a period of a couple of years.
Ms. Ms. LITHWICK: It's hard to really do good - look at - find good data. But I think it might be interesting to look at a study of 10 years of the Canadian Supreme Court when it's half women, compare it to the Supreme Court in the United States that has only one.
CONAN: Joseph, I didn't mean to cut you off. I'm a good listener, too.
JOSEPH: Okay. I know. I know you do. You probably have more female friends. So you listen to - they come to you for - to talk to you because you listen.
CONAN: And now I'm supposed to say, I'm sorry. What did you say? Go ahead.
JOSEPH: …saying probably, you have more female…
CONAN: No, I understand. I was just making a bad joke.
JOSEPH: …and they come to you for advice because you listen, you see?
CONAN: Joseph, thanks very much. Appreciate it.
JOSEPH: You're welcome.
CONAN: All right. Bye-bye. Let's see if we can give Aaron(ph) a call. Aaron's with us from Cleveland.
AARON (Caller): Thank you for taking my call.
CONAN: Go ahead, please.
AARON: I agree with the caller in the studies that she's saying where I would imagine women would be more empathetic in sexual assault-related cases. But I'm more of the opinion that a Supreme Court justice should be appointed more heavily on their performance rather than their gender. The factor should be what they've accomplished and what their reliability in judging rather than their sex.
CONAN: I think the presumption here was all things being considered equal otherwise - and then she was talking about sexual discrimination cases not sexual assault cases, at least as I understand it, Dahlia Lithwick.
AARON: Oh, I'm sorry. Yeah.
Ms. LITHWICK: That's right, although I think Aaron makes a very, very good point, which is when they picked Sandra Day O'Connor - and remember this was Ronald Reagan's promise, he was going to put a woman on the Supreme Court - I don't think anyone believed she was the most qualified candidate to be on the Supreme Court.
In fact, a lot of folks had never heard of her. And I think Aaron's point is a good one, which is when you start to try to create a court that looks like an America that you recognize, a diverse court that has a certain, quote, "social legitimacy" because there's enough blacks and enough Hispanics and enough women on it.
There is this question or this fear that he's pointing to that says, well, do you have the nine best jurists in the country on the court? And that is a problem. Now, if you say, Neal, that's no longer a problem when it comes to gender, because we have some of the most extraordinary women in the pipeline to choose from to fill vacancies on the Supreme Court.
So I think the days where we have to, sort of, reach way, way, way down and find some woman, some obscure woman who, you know, is only okay - not that O'Connor didn't prove to be exceptional - but I think that those days are pretty much behind us. And there is an argument that says you need those women, you need to put them on the court.
I certainly would have had a very different experience in law school if O'Connor hadn't been on the court, if I hadn't been able to see that modeled. So I think there are reasons to create a diverse court that go beyond finding the nine best jurists in the country. But as your caller says, it's not without costs.
CONAN: Aaron, thanks very much.
AARON: Thank you.
CONAN: And you're talking about the appearance and social legitimacy - these things are not mutually exclusive - gender, from the fact that there are no Latinos on the Supreme Court or Asians for that matter or Native Americans and just one African-American.
Ms. LITHWICK: That's true. The court is representative of nothing that looks like America except maybe a very, very exclusive country club, a geriatric exclusive country club. I mean, this does not look like any America that most of us would recognize.
And there are an awful lot of people who say it's long past time we had a Hispanic on the Supreme Court or an Asian on the Supreme Court, or someone with a disability on the Supreme Court, or someone who is openly gay on the Supreme Court, because there is this feeling that a court that doesn't look like me can't possibly represent me.
That's the, I think, underpinning of what women are saying when they say, how can we have a court that represents women that decides abortion and work discrimination and unequal pay and all these gender issues, and only one of them is a woman. It looks to be completely illegitimate.
I think that's the concern that Ginsburg is echoing with these recent comments in the last couple of years when she says she's more concerned - less concerned about how she feels as the only woman of nine on the court. She's very concerned about how bad it looks.
CONAN: We're talking with Dahlia Lithwick, senior legal correspondent and senior editor at the online magazine Slate.com.
You're listening to TALK OF THE NATION from NPR News.
And let's go with Vicky(ph). Vicky in Cincinnati.
VICKY (Caller): Yes, hi, hi. My thought is that, you know, we know a lot about how women relate to one another and other people, and that we, sort of, build meaning out of our relationships with one another.
So, that's how we interpret the world and how we grow as people. And that's really dynamically different, I think, than what a lot of people - how people understand relationships and being individuals and being separate. And there's a whole body of readings that talks about how women - and it comes out of the Gilligan work that you were talking about earlier.
CONAN: And it's interesting, Dahlia Lithwick, you were building on what Vicky was talking about by saying, you know, not all that long ago, those kinds of differences were used as an argument against appointing women to jobs just like this one. And now, in large measure, they're regarded as strengths.
Ms. LITHWICK: That's so right, Neal. If you look at not very recent - not very distant past - the 1960s and '70s, when law firms wouldn't promote women to partner, when women couldn't get tenure track positions at law schools, where women made up a tiny fraction of the law school class - all the arguments sounded a little bit - sorry, Vicky - like Vicky's, which is to say women are different, they're more relational, they're less rigorous, they're not rights-based. And so there is the…
VICKY: I'm not saying an absence of rigor. I'm saying a different way of understanding. And I mean…
Ms. LITHWICK: But I…
VICKY: …it's actually very rigorous in terms of what is given value. Is my way of understanding of mutual empathy giving value, for instance?
Ms. LITHWICK: I think that's right, Vicky. But I think that the concern that a lot of feminists have that sort of came up in the next generation is that there's a certain powerlessness to that, that there's a way in which women shouldn't be ceding the, sort of, male authority, that Antonin Scalia gets.
And I don't disagree with you. I don't think they're mutually exclusive. But I think that a lot of women feel that that notion that we think in a fundamentally different way than men never, never nets out to our benefit as women. It always is used, at the end of the day, as a way of saying, we're just too soft, we're not tough enough, we're not powerful enough.
And so I think that the truth of it lies between these two extremes that we're pointing out. But I think one of the reasons feminists have backed away from some of the Carol Gilligan theory is that we can be as tough as Scalia, we can be as rigorous and as scrupulous and as rules-based and as rights-based as he is and not ceding the territory that we care so much about feelings or other people's feelings that we're not tough, too.
CONAN: And it's interesting, you raise this point now. There are no vacancies on the Supreme Court at the moment, yet it's widely believed - well, Ruth Bader Ginsburg regrettably suffered a relapse of the cancer that she's suffered from earlier. Everybody knows about that. David Souter has expressed a desire to return home.
John Paul Stevens, well, he's quite elderly, and he, too, has thought about retirement. We could be seeing as many as three vacancies in very short order.
Ms. LITHWICK: That's certainly what the inside baseball predictors are saying, sort of, paradoxically, the most likely of the trio you just named, right now, people are saying is the 67-year-old David Souter. The 89-year-old John Paul Stevens appears to be going nowhere.
But certainly, I think that it's indisputable that Obama will have between one and three vacancies to fill. And it's worth pointing out just for clarity, Neal, that those are - those three people we've just talked about are all on the court's reliably liberal block. So it's not going to really change the big picture composition of a four-four court with Justice Anthony Kennedy in the middle.
It's going to look the same ideologically. But I think that this is a chance to put some new blood and some really exciting new liberal voices on the court, perhaps. The question then loops back to whether that voice should belong to a woman, an African-American, a Hispanic or someone else.
CONAN: And let's see if we could squeeze in one call. Cynthia(ph) with us with Phoenix. We just have about 30 seconds left, Cynthia.
CYNTHIA (Caller): Well, I'm a female Hispanic judge, and I have to say I was -I called in because I realized as I'm listening - I went to law school 20 years ago and there was only Sandra Day O'Connor. And now with Justice Ginsburg there - until listening to the conversation, I realized I was just thinking, well, that's just the way it is. And that's a horrible way for women to think, for anybody to think that way.
It was just part of the way it is. And my particular bench, we're more than 50 percent women on the bench. It's a small bench. And I'm in a city court, but in the Superior Court bench, it is very highly populated by women, a lot of minorities…
CYNTHIA: But looking at the Supreme Court, I have to say I was embarrassed. It just crosses my mind that it - that's just the way it is.
CONAN: And Cynthia, thank you so much. And our thanks to Dahlia Lithwick as well.
This is NPR News.