The proponents of a colorblind, gender-blind, whatever else-blind outlook on the world don’t just undermine attempts to identify and rectify discrimination. They also ignore the valuable perspective one can bring from experiencing American culture as someone other than a straight white man.
Supreme Court Justice Sotomayor was pilloried in some corners for her acknowledgement of this reality during her confirmation process. She pointed out that “ a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” and then had to listen to a bunch of white men tell her how racist she was.
This week’s Supreme Court arguments on whether corporations can claim a religious freedom objection to covering women’s contraception provided a wonderful display of how having that variety of experience on the court can be crucial:
In a sharply divided Supreme Court, women led the charge Tuesday in aggressively questioning the challengers of the rule under Obamacare that for-profit employers’ health plans cover contraceptives for female employees at no extra cost, which the suing business owners say violates their religious liberty.
The first salvo came from Justice Sonia Sotomayor, who swiftly jumped in to question the challengers’ lawyer if any employer can get an exemption from a general law that they claim a religious objection to…
…The most forceful was Justice Elena Kagan, who repeatedly asked aggressive questions throughout the 90-minute argument about the legal dangers of exempting certain entities from laws on the basis of religion.
The female justices pushed on the far-reaching implications of a decision granting a religious exemption for corporations for other areas that could be devastating to women, like sex discrimination or family leave.
Wanting to see women represented on the Supreme Court and in other powerful bodies isn’t about some gender essentialist notion about women being naturally more caring, nurturing or any other stereotypically “female” trait. It’s about the fact that women whose lives are affected by sexist policies and culture are going to understand these issues and how they impact people in a much different way. But it’s not simply a matter of appointing just anyone from a non-white-male group to automatically get better policies. Clarence Thomas, who said nothing as usual during the hearings, is a prime example of how this doesn’t automatically work in his persistent denials of racial discrimination even in the Jim Crow South.
Unfortunately, the aggressive and incisive questioning by Kagan, Ginsburg and Sotomayor doesn’t mean this case is a slam dunk. As Jeffrey Toobin writes:
There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.
It seems clear at this point where eight of the nine justices stand, so for now this decision is in the hands of a white man who will hopefully see the dangers of expanding corporate personhood to include the ability to trample other people’s rights for religious reasons. But regardless of how this case turns out, the argument was a powerful reminder on why we need more women in positions of influence.