Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, August 5, 2010

The Dearth of Mothers on the Supreme Court

A recent NYT article by David Leonhardt  ("A Labor Market Punishing to Mothers") points out:

The last three men nominated to the Supreme Court have all been married and, among them, have seven children. The last three women — Elena Kagan, Sonia Sotomayor, and Harriet Miers (who withdrew) — have all been single and without children. 

This little pattern makes the court a good symbol of the American job market.

The article continues with one of my favorite arguments, that that the 'glass ceilings' that persist in the American job market have more to do with the demands of parenthood (borne predominately by women) than gender discrimination.   And, as Leonhardt points out:

The fact that the job market has evolved in this way is no accident. It’s a result of policy choices. As Jane Waldfogel, a Columbia University professor who studies families and work, says, “American feminists made a conscious choice to emphasize equal rights and equal opportunities, but not to talk about policies that would address family responsibilities.”

In many ways, the choice was shrewd. The feminist movement has been fabulously successful fighting for antidiscrimination laws that require men and women to be treated equally. These laws have not eliminated the blatant sexism of past decades — think “Mad Men” — but they have beaten back much of it.

As a result, outright sexism is no longer the main barrier to gender equality. The main barrier is the harsh price most workers pay for pursuing anything other than the old-fashioned career path.

Julie Suk has recently published an excellent article in Columbia Law Review, "Are Gender Stereotypes Bad for Women?  Rethinking Antidiscrimination Law and Work-Family Conflict", in which she analyzes the consequences of this strategic choice by the feminist movement in the U.S, contrasting it with the different legal frameworks that allow European countries like France and Sweden offer such generous maternity and paternity support.  In Europe, the issue of maternity leave was considered entirely separately from the issue of general sick leave or disability leave.  The resulting legal schemes treat childbirth as something unique, not necessarily a disability or a sickness, and an endeavor in which the women who were primarily affected by it deserve  the support of the entire social network – not just the individual employer.  In contrast, in the United States, the issue of maternity leave has always been inseparably intertwined with employment law, and has always shaped primarily by the concern of feminists that distinguishing between childbirth and any other medical condition, by requiring employers to offer more generous maternity benefits, would perpetuate negative stereotypes about women’s ability to work, exacerbating discrimination against women.     

Suk argues that we ought to follow the European lead, recognize childbirth as something unique to women, and distinguish family leave from medial leave.  As Leonhardt points out in his NYT article, though, these sorts of polices aren't enough -- even in those European countries with generous family leave policies, women fall behind men in rising to the top of the career tracks. That's because the costs of taking advantage of these generous policies persist -- the legal right to take off time from your career to parent doesn't immunize anyone from the judgment that doing so makes you a less serious candidate for advancement to the upper levels of your chosen profession.

On that front, I agree with Leonhardt's conclusion:  "The best hope for making progress against today’s gender inequality probably involves some combination of legal and cultural changes, which happens to be the same combination that beat back the old sexism. We’ll have to get beyond the Mommy Wars and instead create rewarding career paths even for parents — fathers, too — who take months or years off. We’ll have to get more creative about part-time and flexible work, too."  In a soon-to-be published book chapter ("Dueling Vocations"), I argue that these sorts work-life balance issues shouldn't be seen as only 'women's issues'  -- they're manifestations of the tensions inherent in the precarious balance between the private vocation and the public vocation to which each of us, whether male or female, a parent or childless, is called.

In all of these arguments about the importance of workplace restructuring to accommodate family care obligations, it's important to remember that those of us with who have the luxury of making these arguments are typically not the ones who most need the arguments to be made.  Yes, Ruth Bader Ginsberg and Sandra Day O'Connor did beat the odds and make it to the top of the legal profession with children.   Yes, many professional women do have the option accepting the career costs of parenting, by of 'opting out' of the workplace or simply accepting the lower salaries that the "Mommy track" offers.  But, as Leonhardt writes, "On the other side of the spectrum, low-income women generally do not have a choice between career and family.  Many are single parents.  Their chances of escaping poverty are hurt by the long-term costs of taking time off after childbirth and having little flexibility in their schedules."


Schiltz, Elizabeth | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference The Dearth of Mothers on the Supreme Court :


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.

Thanks for this post, Elizabeth - it's wonderfully illuminating. With some chagrin, I note that I'd not happened to notice this fact of the last three women named to the Court. And I suspect that the tendency for such facts to go unnoticed (by at least some obtuse folk like me) is both symptom, and reinforcing cause, of the broader problem.

Thanks again,

Posted by: Robert Hockett | Aug 5, 2010 1:51:42 PM

Elizabeth, I downloaded the book Women, Sex, and the Church to my Kindle last night and thoroughly enjoyed your chapter with my coffee this morning. I think the Mommy Wars would be history if we could all see that the work done towards our public vocation and the work done towards our private vocation are both valuable and that society benefits when women flourish in both spheres. Certainly there can be legal and policy changes that would help this. But more importantly, there must be a cultural change. I am a medical doctor who, after years of working on a part-time basis, found that it was better for my family to completely opt out of practicing medicine for a few years. Now as my nest is emptying, I have returned to the marketplace as a professor of anatomy and physiology at the local community college. The response of my mother-in-law, an attorney, was "Oh good. Now I have something to tell people when they ask what you are doing." The implication was clear. The "drudgery" of managing a household and raising four children is not near as significant as a community college teaching position. I am sure most women who have made similar career choices can relate similar anecdotes. Like you, I used the words of Linda Hirshman as a springboard to discuss this in a 2006 blog post. http://tiny.cc/2ws13

I heartily agree with you that the Church offers much wisdom to facilitate the cultural change needed to help both women and men see the value in the work of raising children and building strong families. We need such women and men in positions of leadership so that they can give a voice in the marketplace as well as the government to the value of parenting.

I recently had the opportunity to listen to Aldous Huxley's Brave New World on a cross country drive. I had read it in high school several decades ago. It was very sobering to see that ideas about family and parenting presented as outlandish and extreme in the 1930's are seen as very mainstream today.

Posted by: Denise | Aug 6, 2010 12:29:51 PM