Are Women Taking over the Court? I hope so!

By | March 8, 2016

Dr Jess GuthA few days ago the US Supreme Court heard arguments on the case Whole Woman’s Health v. Hellerstedt and I am excited about this.

From reports it seems that the dynamics on the Supreme Court have changed significantly since Antonin Scalia’s death in February and that the three female judges on the bench gave the lawyers in this case hell and were determined to get their questions answered irrespective of time limits and other formal rules usually imposed on the Court.

This blog by Dahlia Lithwick is worth a look. The case is about abortion clinics. It’s about issues which profoundly impact on women so we shouldn’t be surprised or even shocked that women taken an interest, that women want to fully understand, that women want to draw out the rhetoric and get to the substance and that women will not take no for an answer until they are satisfied that they fully understand the arguments made and until they are satisfied that they have all the information they need to make up their minds. This is important stuff. Important stuff that impacts on women more than it does on men.

In Hellerstedt, maybe for the first time ever, we saw women taking control of the US Supreme Court. Not women trying to persuade men to do the right thing, not women pleading for their rights, not women trying to frame their case in ways which the judiciary can understand and identify with. We saw women taking control, asking the questions, framing the debate, pointing out the obvious flaws in some of the basic legal arguments. The questioning, the arguments, all of it is impressive. It’s a lesson in what the best legal minds can do when they turn their attention to something that is really important to them.

So why am I excited? Well, I have been thinking and writing about gender equality and I have been thinking, writing and teaching about the impact of gender on EU law and policy. I have often struggled to really explain why I think gender makes a difference and why I think a critical mass of women makes a difference. I think the way the arguments were conducted and the way the three women judges conducted themselves in Hellerstedt is a great example of how and why gender matters. It is also an illustration that the balance of power in a court is important and that if and when that power shifts for any reasons the dynamics can change very quickly and dramatically. I am excited because the case gives me hope that my work makes sense, that it is important and that I can add to the understanding of how our legal systems work by trying to better understand the impact of gender.

I have recently written about some of this in an EU context in a book chapter which will be published later this year. It’s called ‘Law as the Object and Agent of Integration: Gendering the Court of Justice of the European Union, its decisions and their impact’ and is included in a fantastic book edited by Professors Gabriele Abels and Heather McRae. The book is called ‘Gendering European Integration Theory’ and is published by the Barbara Budrich Verlag and includes contributions by political scientists and sociologists who collectively shine a very different light on EU integration.

International Women’s Day (March 8) always makes me think about what we have achieved in terms of gender equality but also how much is left to do and I want to leave you with the words of one of my feminist heroes because the reality is, all female panels, benches, anythings still raise far more eyebrows and elicit far more comments than all male anythings and as long as that is the case, we need International Women’s Day as a reminder that we’re not there yet!

“So now the perception is, yes, women are here to stay. And when I’m sometimes asked when will there be enough [women on the supreme court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.” – Ruth Bader Ginsburg

About Jessica Guth

Jess is Head of Law at The University of Bradford School of Law. She joined the School in 2007 as a junior lecturer and has taught on a variety of undergraduate and postgraduate courses. She has been recognised by the University for her excellence in teaching by being awarded the Baroness Lockwood Award for Distinguished Teaching in 2009 and being nominated for a National Teaching Fellowship in 2013. Jess is a leading Legal Education researcher and has presented her work nationally and internationally and has published in leading journals. She is the Deputy Editor of the Law Teacher: the International Journal of Legal Education and the Vice Chair of the Association of Law Teachers. She also sits on the Executive Committee of the Socio-Legal Studies Association.

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