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Retired Supreme Court Justice: Watch out for the “new feminism”

June 8, 2009 – 10:26 PM

By Laura Pappano

Please – let’s not blame our bodies.

The nomination to the Supreme Court of Justice Sonia Sotomayor has, of course, spurred debate about how women – by dint of their sex — judge, act, and rule. (We hear females lawyers prefer to mediate rather than litigate, for example, suggesting that women, by their nature, are more agreeable and are compromisers).

This is, of course, a dangerous path – and last week retired Supreme Court Justice Sandra Day O’Connor said as much when she spoke in Radcliffe Yard. I was there up front (thanks to Jane Rainie Opel ’50 Young Alumna Awardee Bonnie Tsui!) and heard O’Connor’s warning about the “new feminism.”

O’Connor gets the problem: The belief that women are softer, gentler, more conciliatory, agreeable, etc…echoes the very “cult of the true woman” and the “separate spheres” arguments that held sway in Victorian times. In articulating “natural” differences between men and women that made each suited for particular social roles, women were deemed ill-suited to be lawyers, business owners, voters – or work longer than an eight-hour day.

This was not the end of such protectionist legislation (sports are all about “protectionist” rules and prohibitions for females), but the foundation of beliefs that women’s biological differences limit their roles.

Arguing that we need a woman because women are inherently this or that, is counter productive. “I fear that kind of calls back the old mess we struggled to put behind us,” said O’Connor.

Thanks to Harvard’s open collections archive on women and work, reminders of womanly nature are only a click away. In 1908 Supreme Court Justice Louis Brandeis issued a brief in Muller v. Oregon about women’s work hours which observed that “physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application.”

And he cites Havelock Ellis: “In strength as well as in rapidity and precision of movement women are inferior to men. This is not a conclusion that has ever been contested…The motor superiority of men, and to some extend of males generally, is, it can scarce be doubted, a deep-lying fact. It is related to what is most fundamental in men and in women, and to their whole psychic organization.”

No wonder a few years later in 1917 The National Consumer League was fighting to restrict women’s work hours (leave the over-time and benefits of higher pay to men!) by touting the need for females with their weak physical constitutions to have  rest and time to “cook, sew, and clean at home, sometimes even care for the sick.” (Now that’s exhausting).

We are more than a century removed from such ridiculous presumptions about how females are. We need more women in power – and on the Supreme Court – but it has nothing to do with their biological make-up. Let’s not confuse the lived experience of being female in our society with possessing two X chromosomes.

  1. 2 Responses to “Retired Supreme Court Justice: Watch out for the “new feminism””

  2. great post Laura!

    By Nicole LaVoi on Jun 10, 2009

  3. Good piece…how much better the world would be if we were all judged only by our abilities and actions, not this nonsense. I do not see an end to this mess in our lifetime, but keep the information and discussion going, it’s the only way to achieve change.

    By Elaine on Jun 12, 2009

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