April 2011Volume 16Number 4PDF icon PDF version (for best printing)

Three women on the Court

This fall, history was made. For the first time, three women are serving on both the United States Supreme Court and the Illinois Supreme Court. The parallels leading to the unprecedented number of female jurists on both courts at the same time are striking.

In 1981, Sandra Day O’Connor broke new ground when she was appointed by President Ronald Reagan as the first woman to sit on the United States Supreme Court in its 191-year history. O’Connor, who had been a trail blazing legislator and jurist in Arizona, observed that “society as a whole benefits immeasurably from a climate in which all persons, regardless of race or gender, may have the opportunity to earn respect, responsibility, advancement and remuneration based on ability.” It would be another twelve years, however, until a second woman was afforded such an opportunity: Ruth Bader Ginsburg joined O’Connor on the High Court when she was appointed by President Bill Clinton in 1993.

It was around this time that Illinois voters elected the first female to this State’s highest tribunal. In 1992, Justice Mary Ann G. McMorrow became the first woman to sit on the Illinois Supreme Court in its 173-year history, capping a remarkable career in which she accomplished a series of historic “firsts.” Justice McMorrow reflected that “[w]hen I went to law school, women couldn’t even dream of such a thing. I hope this would forever indicate that there’s nothing that limits women in any job or any profession.” Like Justice O’Connor, however, Justice McMorrow had to wait nearly a decade until Justice Rita B. Garman joined her on the bench on 2001.

Justice O’Connor and Justice McMorrow served with distinction until their retirements in 2005 and 2006, respectively. After Justice O’Connor stepped down, Justice Ginsburg became the sole female justice on the High Court until last year’s appointment of Sonia Sotomayor by President Obama. In Illinois, the number of female justices remained at two despite Justice McMorrow’s retirement, owing to the appointment of Justice Anne M. Burke to fill her vacancy.

It was not until this fall, however, that both courts experienced significant milestones in adding a third female justice to the bench. Upon the retirement of U.S. Supreme Court Justice John Paul Stevens, President Obama nominated Elena Kagan, who is now in the midst of hearing cases during her first term. Similarly, upon the retirement of Illinois Supreme Court Chief Justice Thomas R. Fitzgerald, Justice Mary Jane Theis has been appointed to fill his vacancy, and she heard her first cases during the court’s November term.

What effect will the presence of three female justices have on these courts? In a recent interview, Justice Ginsburg opined that the period when women on the bench were “one-or-two-at-a-time curiosities” may finally have passed. Now that women make up one-third of the U.S. Supreme Court and nearly half of the Illinois Supreme Court, the presence of women “will seem natural and proper.”

Justice Ginsburg’s observations are borne out by a 2006 report issued by the Wellesley Centers for Women. In Critical Mass on Corporate Boards: Why Three or More Women Enhance Governance, the Centers found that once a third woman is seated on a corporate board, dramatic changes occur in the group’s dynamics, as “having women in the room becomes a normal state of affairs.” Significantly, upon attaining a “critical mass” of three seats on a board, “[w]omen start being treated as individuals, with different personalities, styles and interests.” Because women are “no longer seen as outsiders,” they are therefore “able to influence the content and process of board discussions more substantially.” This, in part, flows from the fact that “[n]o longer does any one woman represent the ‘woman’s point of view,’ because the women express different views and also disagree with each other.”

One author of this study, social scientist Sumru Erkut, recently penned an op-ed article applying this corporate-board “tipping point” theory to the addition of Elena Kagan as the third female justice on the High Court. Erkut drew parallels between the Court and corporate boards, noting they are both “small groups” in which “[t]he presence of women has been a rarity.” Erkut concluded that similar to the effect of adding a third woman on a board, the addition of a third female to the bench may result not only in “wider perspectives and more incisive questions than those currently asked,” but also may “once and for all put an end to talk about whether or not women have a place on the Supreme Court.”

Indeed, in addition to bringing gender diversity to the bench, the female jurists on both courts possess a wealth of diverse experience and perspectives. Justice Ginsburg and Kagan were professors of law, with Kagan ultimately ascending to the position of Dean of the Harvard Law School. Ginsburg and Sotomayor also served terms on the United States Court of Appeals, prior to which Ginsburg was the General Counsel for the ACLU and Sotomayor litigated international commercial matters at a New York law firm. In addition, Kagan not only served as an associate counsel to President Clinton, but also as President Obama’s Solicitor General.

Similarly, although all three female justices now seated on the Illinois Supreme Court served with distinction on the Illinois Appellate Court, their paths to the bench were varied. Justice Garman served as a Vermillion County Assistant State’s Attorney and engaged in private practice prior to her ascension to the circuit court bench. Before her appointment to the judiciary, Justice Burke was a leading advocate on behalf of children with special needs who helped found the Special Olympics, and who later engaged in private practice representing the interests of children and families. Finally, Justice Theis served as an assistant Cook County public defender before she ascended to the circuit court bench.

Time will tell if the predictions of a “critical mass” tied to the number of three female justices on the bench are confirmed. Nevertheless, there is no doubt that this is a monumental moment in history to watch these accomplished jurists make their mark as they shape the law for years to come. ■

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