Gender and Justice: Parity and the United States Supreme Court

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been used to achieve gender balance when the rate of women elected to legislatures and parliaments has been seen as too slow. There are fewer examples of parity provisions with regard to the judiciary. While mandatory parity provisions may be arguably characterized as quotas, which can be anathema to liberals and conservatives alike, there is no adequate “market solution” to this issue since there are so few seats on the Court. This suggests the need for a thought experiment that contemplates alternative means to achieve representative balance on the Court.. Without a more proactive approach, the United States Supreme Court may well be an all-male bench in the year 2050. This article proposes a conceptual framework for achieving parity on the Court through statutory reform or, in the alternative, by constitutional amendment. This would ensure that this important power center of government becomes gender balanced over the next generation. My normative argument for parity is grounded in the historic views of the Framers and the early leaders of the Republic, the significant value of symbolic representation, the instrumental value of women judges, and a political theory that embraces the dual nature of society and rejects a “monosexual democracy” as inconsistent with our values as a nation. The article looks to historic evidence in favor of geographic diversity, empirical evidence as to the effect of women judges on decision-making, affirmative action jurisprudence and an expansive reading of the Nineteenth Amendment as the bases for a judicial parity provision