commentary
Beyond the Briefs
End the Supreme Court ‘Vagina Monologue’
Published Thursday, 09-Jul-2009 in issue 1124
The U.S. Senate is poised to hold hearings in the confirmation of Justice Sonia Sotomayor, who would become the third woman to serve on the Supreme Court, along with Justice Ruth Bader Ginsburg and the former Justice Sandra Day O’Connor.
Opponents of Justice Sotomayor fault her because she has stated the obvious – that being a woman gives her a different perspective on things.
Sotomayor celebrates this as the strength it is: “A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said, stirring fears among Republicans that she brings a diversity to the white, male perspective that has dominated the Supreme Court to date.
But rather than worry that Sotomayor will “rule from the bench,” somehow asserting her gender and ethnic heritage on all decisions in a way that her mostly male colleagues and predecessors most certainly never have, her opponents should welcome the balance Sotomayor brings.
The Court’s recent ruling in Safford Unified School District v. Redding limiting the power of school officials to conduct strip searches is good example of why her voice is needed.
In Safford, school officials strip searched a 13-year-old female student in search of two ibubrofen tablets, forcing her to pull aside her underwear so they could ascertain whether she was carrying the pills beneath. Justice Clarence Thomas opined that this was completely acceptable. He said school officials should have free reign to search a young girl’s undergarments, pubic hair and vagina, all in an effort to find, not cocaine or heroin or a gun but, two over-the-counter tablets. (It should have dawned on Justice Thomas that the search would have been in vain, because the tablets would have dissolved, but perhaps, equally absurdly, he would then have argued that school officials could take swabs of vaginal fluids to determine the presence of the tablets.)
Most people, children, women and men alike, would find such conduct tantamount to rape or, at least, sexual abuse. And Justice Thomas’ extreme views should be all that Sotomayor’s opponents need to see why a diversity of perspectives is necessary on the Supreme Court.
In Safford, sanity, not gender, motivated seven male justices and one female justice to disagree with Justice Thomas. However, Sotomayor does not deny that her gender may play a role in her decisions when relevant. “A woman brings a different perspective to judging some cases,” Sotomayor has said. Indeed other female Supreme Court justices have brought valuable “insider information” to decisions that would otherwise have been bereft of female perspective.
For example, in 1985, Republican Sandra Day O’Connor, the first female justice on the court, in New Jersey v. T.L.O., during oral argument pointed out that searching a girl’s purse is “different” than searching a boy’s backpack. She suggested that, unlike boys, girls need to keep things in their backpacks and purses for “hygiene” purposes, the discovery of which could prove quite embarrassing and humiliating.
Similarly, in 1995, in Vernonia School District v. Acton, O’Connor complained at oral argument that drug testing students without suspicion was a significant intrusion on a student’s privacy. In her written dissenting opinion, she criticized Justice Scalia’s view that “monitoring a student’s urinating” was no big deal because “men stand side by side at public urinals.” She pointed out that girls don’t use urinals and said a girl would find it humiliating to have to provide a urine sample while another woman stood outside a restroom stall listening “for the normal sounds of urination.”
In 2003, Justice Ruth Bader Ginsburg, in Tecemsuh School District v. Earls., found the notion of drug testing choir members and those in Future Homemakers of America (both of which were presumably composed of girls) illogical and intrusive. Given no evidence of any drug problem with these students, they were the “least likely” students to be using illegal drugs, she said.
So while Republicans grumble about the potential of a “female” perspective on the U.S. Supreme Court and fret that Sotomayor will “legislate from the bench,” they should be grateful there is a justice who will balance the insensitive and out-of-date opinions of justices like Clarence Thomas, who advocated that 13-year-old girls can be strip searched.
Robert DeKoven is a professor at California Western School of Law.
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