Chapter 1 Communication: Essential Human Behavior 27COMMUNICATIONACROSSCULTURES
Judging Sex and Gender
Upon learning that she would be replaced on the U.S. Supreme Court by
John Roberts, retiring Justice Sandra Day O’Connor was pleased, but not
completely. “He’s good in every way,” she responded, “except he’s not
a woman” (Balz & Fears, 2005). Appointed in 1981 by Ronald Reagan,
O’Connor was the first woman ever to serve on the nation’s highest court.
Her disappointment that the court would once again include only one woman
(O’Connor’s colleague Ruth Bader Ginsberg, appointed in 1993 by Bill
Clinton) would prove short lived: within six years, the court would be a full
third female.^1
If women make up roughly half of the U.S. population, it should logically
follow that they will comprise a large portion of the courts as well. On the
other hand, if justice is indeed blind, the sex (or race, ethnicity, religion, and
so on) of individual justices should not matter. There is some argument over
whether female justices rule differently than male justices—some research
suggests that having three or more women on a panel can change the way
the panel reaches decisions, even when the panel is predominantly male.
Does gender affect the way justices come to decisions? There is some evi-
dence that it does.
Consider the case of Savana Redding, a middle school student who,
having been accused of supplying classmates with prescription strength ibu-
profen, was stripped down to her underwear by two female school adminis-
trators, who searched through her underwear for the pills. None were found.
Feeling that her Fourth Amendment protection from unreasonable search
and seizure had been violated, Redding and her family sued the school
district, and the case eventually found its way to the Supreme Court. Judg-
ing from the comments made by justices during arguments, Savana’s case
looked bleak, as justices didn’t seem to understand why the situation was
a big deal. “In my experience when I was 8 or 10 or 12 years old, you know,
we did take our clothes off once a day, we changed for gym,” noted Justice
Stephen Breyer (Lithwick, 2009). But Justice Ginsberg, as a female, took a
very different view and spoke out both in the press and to her colleagues
about how humiliating such an experience could be for a teenage girl.
“They have never been a 13-year-old girl,” she told one reporter. “It’s a very
sensitive age for a girl. I didn’t think that my colleagues, some of them,
quite understood” (quoted in Biskupic, 2009). The Court eventually ruled
that Redding’s rights had indeed been violated, in an 8–1 decision. Today,
the Court’s three female Justices are often in agreement, but it remains
unclear whether that is due to ideology (all three are fairly liberal) or to gender
(Liptak, 2013).❶ A Does it strike you as
surprising that Ginsberg
saw the case of Savana
Redding differently than
did her male colleagues?
How might each justice’s
personal experiences—
their specific relational and
cultural context—influence
their decisions?
❷ Why is it that sex and
gender have become such
issues in the past thirty
years, particularly on the
Supreme Court? Do you
think gender might have
influenced the decisions of
the 101 men (all but one of
them white) who preceded
Sandra Day O’Connor
to the bench during the
court’s first 190 years?
➌ Consider also the
unique situational context
of the Savana Redding
case. Would justices have
thought about it differ-
ently if she were a teenage
boy? If she were older?
Younger? If the drugs she
was suspected of hiding
were stronger than ibu-
profen?THINK
ABOUT
THIS(^1) Justice Sonia Sotomayor was appointed in 2009; Justice Elena Kagan was appointed in 2010.