Ruth Bader Ginsburg is interviewed in the NYTimes. It’s a rich article, one illustrating how the relevant experiences and perceptions of many women and girls may be nearly inacessible to a group of men:
Q: What about the case this term involving the strip search, in school, of 13-year-old Savana Redding? Justice Souter’s majority opinion, finding that the strip search was unconstitutional, is very different from what I expected after oral argument, when some of the men on the court didn’t seem to see the seriousness here. Is that an example of a case when having a woman as part of the conversation was important?
JUSTICE GINSBURG: I think it makes people stop and think, Maybe a 13-year-old girl is different from a 13-year-old boy in terms of how humiliating it is to be seen undressed. I think many of [the male justices] first thought of their own reaction. It came out in various questions. You change your clothes in the gym, what’s the big deal?
Do judges bring their own experience to decisions?
Q: You have written, “To turn in a new direction, the court first had to gain an understanding that legislation apparently designed to benefit or protect women could have the opposite effect.” The pedestal versus the cage. Has the court made that turn completely, or is there still more work to be done?
JUSTICE GINSBURG: Not completely, as you can see in the case involving whether a child acquires citizenship from an unwed father. [Nguyen v. INS, in which the court in 2001 upheld, by 5 to 4, a law that set different requirements for a child to become a citizen, depending on whether his citizenship rights came from his unmarried mother or his unmarried father.] The majority thought there was something about the link between a mother and a child that doesn’t exist between the father and a child. But in fact the child in the case had been brought up by his father.
They were held back by a way of looking at the world in which a man who wasn’t married simply was not responsible. There must have been so many repetitions of Madame Butterfly in World War II. And for Justice Stevens [who voted with the majority], that was part of his experience. I think that’s going to be over in the next generation, these kinds of rulings.
There’s lots more in the very interesting article, but these two passages do make it how very clear how much individual understanding can be a factor in the court’s decisions. A last comment from Ginsburg:
Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.