Women and the Supreme Court: How the Court’s Choices Affect Us

Issues defined – by whom and why

Supreme Court scholars agree that the United States’ major issues are resolved in the courts. Yet the Supreme Court does not only resolve issues, it also identifies them. Through selecting some cases and discarding others, the Court to some extent decides, inscribes, and defines what is an issue and what is not. The social issues to which the Court attends rise to the surface of American social life.

In his book, Closed Chambers, Edward Lazarus describes the Supreme Court as a microcosm of the nation as a whole. He argues that the ruptures in the Court’s culture mimic the ruptures in our larger culture, and that broad political disagreements are both imposed on the Court and reinforced by the Court. Further, Lazarus suggests that the Court has the power to rise above these ruptures, to dispose of partisanship and return to the task of safeguarding the basic values of the American Constitution.

However, one could argue (if she assumes no evil intentions on either side of the national debate) that partisanship springs from varying interpretations of American values, including those found in the Constitution.

How cases are chosen

The Supreme Court only gets cases when someone who has lost in a lower court requests through a petition that the decision was wrong under the Constitution. A petition for “certiorari" is a request that the Supreme Court hear a case that has lost in a state supreme court or in a federal court of appeals. The latin word means to inform or make surer – by agreeing to think it through again.

Is there a rule book about how to decide which cases are chosen for review and which are left as the lower courts decided them? In his book entitled The Supreme Court, Chief Justice William H. Rehnquist admits that the granting of certiorari is "a rather subjective decision, made up in part of intuition and in part of legal judgment."

He goes on to explain three major factors that influence the granting of certiorari. Two of the three measure a case against all the decisions made by the courts in the past. The first is conflict with other courts "if a case has been decided differently than other similar cases, it has a good chance of being chosen. Second, a case is attractive if the lower courts’ decision seems to be in conflict with Supreme Court precedents. The third and most subjective criterion is "general importance." Justices often pick cases that are expected to have a significant impact beyond the lives of the litigants.

Two cases that are sure to affect women (one has been granted certiorari and one has not)

The Court has decided to hear Jackson v. Birmingham Board of Education, a case that will help to determine the scope of Title IX.

Title IX of the Education Amendments of 1972 prohibits gender discrimination in federally funded education programs and activities. The law’s greatest impact has been in school athletic programs, where girls’ teams have been traditionally under funded and undervalued. The law requires that school boards support girls’ teams and boys’ teams equally.

Roderick Jackson, a teacher, filed suit against the Birmingham Board of Education, claiming that he was fired from his coaching position for complaining that the girls’ basketball team did not receive equal funding or equal access to the school facilities and equipment. The trial court and the 11th Circuit Court of Appeals dismissed Jackson’s complaint; both courts concluded that Title IX does not protect individuals who report gender discrimination against others.

At issue is whom Title IX protects: only the direct victims of sex discrimination or those who protest sex discrimination as well?

The 11th Circuit argued that Congress intended to protect only those who suffer gender discrimination directly.

But Jackson’s lawyers are likely to argue that Title IX also intends to protect people who suffer retaliation for speaking out. Reinterpreting Title IX in this way may further the law’s objective – preventing the use of federal resources to support discriminatory practices. From this point of view, coaches and teachers are the best advocates for students who suffer discrimination, and the law should enable them to call out gender biases when they see them. Without protection from retaliation, adults who are participating in these programs may not pursue equality, leaving the job to young students.

The Supreme Court will decide this case this 2004-2005 season.

Not granted certiorari

The Supreme Court decided not to hear Catholic Charities v. California, a case that questions the applicability of a state law that requires employers who provide prescription drug coverage to include birth control for women.

Catholic Charities is closely affiliated with the Roman Catholic Church, which teaches that birth control is a sin. The group claims it is exempt from the law because it is a “religious employer," but the California Supreme Court disagreed.

Six out of seven justices on the state’s supreme court believe that Catholic Charities does not qualify as a religious employer since neither its mission, clients, nor employees are necessarily religious. Catholic Charities claims that this definition is too narrow and that they should qualify for the exemption.

Without comment, the U.S. Supreme Court decided not to review the case, which means that Catholic Charities of California will have to continue to provide birth control coverage to its employees.

Some feel that this is a victory for working women who have endured workplace discrimination based on religious belief. Others say that it violates religious freedom and that the case lays the groundwork for the state to eventually force the group to pay for abortions.

The power of choice

When it does not choose a case, the Supreme Court still exercises its power. By not granting certiorari, the Court validates the lower court’s ruling.

However, when we don’t choose, we don’t make an impact. We must choose a candidate and a party on November 2, 2004 in order to make our voices heard. Our votes are almost sure to influence the Supreme Court since eight of the nine justices are over 65, four are over 70 and the Court hasn’t had a vacancy in ten years.

The next president will probably nominate one or more justices to lifetime terms on the bench, influencing contentious social issues like gender discrimination and reproductive rights for years to come.

What do you think?

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Posted on: 10/10/2004