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Elana, Sonia, Ruth and the Court

By Zillah Eisenstein - posted Monday, 23 August 2010

Well, this is fun. Three women, not zero, or one, or two, but three now sit on the Supreme Court. Three seems formidable. Somehow one seems like a token gesture, when all the rest remain men. And two seems tokenish because. what can two do? But three - three is a third of the Court. Three is also an odd number and it seems like one might be moving to something of consequence.

There are deep divides among people about whether it should matter that females are on the Court; or whether it won’t matter because being female is not one and the same with being a feminist, of whatever sort; and/or that it cannot matter enough because of the unfair patriarchal aspects of law. Better yet, I wonder if all the new appointments of females in governments today across the globe - secretary of states, foreign ministers, judges, even presidents - is more a decoy kind of politics, than anything substantial effecting most women’s lives.

Even though Elana Kagan denies that her being a woman has particular import for how she will read and decide cases, she is female none the less. She inhabits a woman’s body. Her life has been lived as a female even if she has chosen to not embrace traditional meanings of womanhood like being a wife and or a mother. She is unapologetic for who she is - and that is a female who lives her life quite autonomously and happily so. Many assume that she is a gay, but who cares.


Why should Kagan feel free to say much about her personal self after the grilling Sonia Sotomayor took at her confirmation hearings? Her now famous statement about being a “Latina woman” does not deny the importance of neutrality and objectivity but rather makes clear that neither are achievable without first recognising how individual experience and identity are present. If one is to achieve justice one first must expose her own biases. Silenced identities that are hidden are the ones that are dangerous; revealed and spoken identities can be held accountable.

Supposedly, in order to be considered worthy of the Court one must represent the mainstream, which is code for status quo. But justices should not protect the status quo. Instead they should be constantly examining and critiquing how best to understand the law in new ways. This is not judicial activism, or radicalism, or prejudice, but rather an intellectually curious and expansive understanding of Constitutional law. And, our Court needs all the help it can get to better know the democratic possibilities of the law.

Sonia S. was said to be racist; while white men are assumed to be neutral, i.e., mainstream. Before her Senate hearings right wing talk show hosts called her a bigot and, according to Rush Limbaugh, she hates white men. After all, look at what she did to the white New Haven firefighters? She judged that a test they took was unfair to blacks and therefore an inappropriate part of the vetting process.

Sonia S. was confirmed as a new justice to the Court about one year ago. It is too bad that to gain confirmation she had to play down and qualify her specific contribution as a Latina woman. Instead of applauding her unique qualities the richness of her racial and gender differences were seen as problematic for and by the mainstream.

Most recently, Kagan raised doubts among some Congress people because, on the other hand, she seemed not willing to claim her womanliness. She is single, with out children and unapologetic. She had no stories of former partners, like Sotomayor, nor the sense of a large extended family. Instead, Kagan was female but ungendered in a sense, a man’s woman so-to-speak. Whereas Sotomayor rippled the waves with her “Latina woman” identity, Kagan said her female identity had little relevance to the job. Either way, one loses here. What is a woman to do?

This makes for interesting querying. Maybe Sotomayor has no choice but to claim her Latina status and her womanhood because to claim one she needs to claim the other. She is “not white”, and given her Latina status, she also needs to claim her womanhood, given that gender is so often assumed as “white. Kagan is white, and therefore her gender is assumed by default. As such, she has more room to manoeuvre by saying less - even into the spot of the Dean at the Harvard Law School.


Much has changed since Sandra Day O’Connor and Ruth Bader Ginsburg became members of the Supreme Court. Both had to fight open misogyny and patriarchy in the practice of law and in the courts. They had little choice - whether to be seen “as” women or not - if they were to make their way forward. It was helpful that there was an active women’s movement demanding new legal rights for women at this point in time as well.

Ginsburg, as a liberal feminist, fought hard to end legal sex discrimination in the workplace, especially. O’Connor, more conservative than liberal, still often chose to defend Roe v Wade, even in limited fashion, against its continuing assaults. It mattered that Ginsburg and O’Connor were women - for the Court and for women and the men that care about their reproductive and legal rights.

Today feminisms have shifted. Neo-liberalism is all the rage, among successful women and men. If Kagan embraced her femaleness as a feminist, of any sort, she would clearly not be of the mainstream of the society she inhabits, or the Court she hoped to become a member of.

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About the Author

Zillah Eisenstein is a political activist and professor of politics at Ithaca College, New York. Author of The Female Body and the Law (Univ. of California Press, 1988), Against Empire: Feminisms, racism and the West (Spinifex Press, 2004) and Sexual Decoys; gender, race and war (Spinifex Press, 2007) as well as many other books related to changing political formations of sex, race, class and gender.

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