SAXTONS RIVER — With the U.S. Supreme Court having seated a new justice, the stakes could not be higher for women. The court, notably conservative during the Bush administration with predictable 5–4 votes, now sees its first Hispanic and only its third woman on the bench. (Liberal Ruth Bader Ginsberg is still there; moderate Sandra Day O'Connor retired.)
President Obama's choice to fill the seat of retired Justice David Souter, Sonia Sotomayor, worked as assistant district attorney in New York City, where, in trying criminal cases, she was described as “fearless and effective.”
In 1984, she began working in private practice, specializing in international corporate law, and in 1998, she became the first Latina to serve on the U.S. Court of Appeals.
Supporters point out that she brings more federal judicial experience to the bench than any other justice in 100 years and more overall judicial experience than anyone confirmed for the court in the last 70.
In the past, Sotomayor garnered support from notable Republicans as well as liberal Democrats. As the White House has stated, she is “known as a moderate on the court [and] often forges consensus with her more conservative [colleagues].”
It's worth noting that on abortion and gay rights she has been moderate at best in her judicial opinions. Still, pro-choice and gay groups support her.
“From everything I know,” one advocate told The Huffington Post, “she is fair and aware, open and judicious.”
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Those attributes will play well in a court that has attempted to roll back women's right to privacy, equal protection under the law, basic health and safety, and freedom from discrimination in schools and workplaces.
In 2006, when conservatives Samuel Alito and now-Chief Justice John Roberts came to the court, “decisions were handed down that reversed decades of precedent and that dramatically cut back women's hard-won legal rights,” according to the National Women's Law Center (NWLC). Now, the center says, “Key legal protections upon which women have relied for many years are gravely at risk.”
The NWLC points out a number of issues at stake.
For example, the constitutional right to privacy, including Roe v. Wade, which legalized abortion in 1973, is not secure even though it has been determined to be “settled law.”
In 2007, in the case of Gonzales v. Carhart, five justices, including Alito and Roberts, overturned 30 years of constitutional law that protected women's health and jeopardized “the fundamental freedom of individuals to make important life decisions.” Conservative justices Antonin Scalia and Clarence Thomas have repeatedly stated that Roe v. Wade should be overturned.
Sex discrimination in the workplace is another issue of concern, as is affirmative action.
The 2007 case of Ledbetter v. Goodyear Tire and Rubber Co. garnered wide attention when the court, in a typical 5–4 decision, reversed the long-standing interpretation of Title VII of the Civil Rights Act of 1964 (barring discrimination in employment).
In that case, the court ruled that a woman, Lilly Ledbetter, could not file a discrimination case, even though she could prove discriminatory pay, because she had not filed her case within 180 days of receiving her first discriminatory paycheck. (She found out about the pay discrepancy only when she was ready to retire.)
The court's decision was overturned by Congress when it passed the Lilly Ledbetter Fair Pay Act earlier this year.
During the 2008–09 term, a number of important decisions affecting women have demonstrated the impact of the Supreme Court on women's rights.
While the court's decisions in several cases have upheld hard-fought legal protections, other decisions have revealed the damage a conservative court can do when it comes to ensuring civil rights protections important to women.
For example, in AT&T v. Hulteen, the Court ruled against female workers when it permitted AT&T, in the words of Justice Ruth Bader Ginsburg, to pay women “for the rest of their lives lower pension benefits than colleagues who worked for AT&T no longer than they did.”
This case derived from a suit brought against AT&T by four women employees who learned that their pension benefits were lower than they would have been if they had received credit for pregnancy leave. The leave was taken before passage of the Pregnancy Discrimination Act of 1978.
“Once again…the Court simply did not understand the barriers women continue to face in the workplace,” says NWLC.
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Other cases decided by the court have a significant impact on girls and women, although they do not directly involve sex discrimination.
One case that received wide publicity involved a school's strip search of a 13-year girl thought to be carrying prescription-strength ibuprofen. The court found in the girl's favor, protecting the constitutional rights of students.
However, in Gross v. FBL Financial Services, which challenged age discrimination in employment, the court's ruling made it difficult for women who have both age and sex discrimination claims to bring age discrimination cases in the future.
“The Court is continually confronted with cases involving legal issues of the utmost importance to women,” says the NWLC. “Each Justice on the Supreme Court [has] a profound, and lasting, impact on [American women and their families.] It is critically important that [Justices] respect the constitutionality and statutory protections upon which women rely.”
In a 1992 confirmation hearing, Judge Sotomayor shared her judicial philosophy.
“I don't believe we should bend the Constitution under any circumstances,” she testified. “It says what it says. We should do honor to it.”