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Sandra Day O'Connor, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan
Justice Ruth Bader Ginsburg described in her biography how lonely it was on the Supreme Court after Justice Sandra Day O’Connor’s retirement in 2006. She was the lone woman on the high court until she was joined by Justice Sonia Sotomayor in 2009 and Justice Elena Kagan in 2010. In this April 11, 2012, photo, Ginsburg, Sotomayor and Kagan join O’Connor in Washington to celebrate the 30th anniversary of O’Connor’s appointment as the nation’s first woman on the court. (AP photo: Manuel Balce Ceneta)

Sybil Procedure: Honor Justice Ginsburg by adding women to 8th Circuit

On Friday night, when I heard the news that Justice Ruth Bader Ginsburg had died, I found myself suddenly crying inconsolably in our kitchen. I had never met Justice Ginsburg or even heard her speak in person. Yet, just like when my mother died, I woke up repeatedly in the night thinking “it wasn’t a bad dream; she’s still dead, and it still sucks.”

I was frankly a bit embarrassed by my reaction. I know folks who had a real relationship with the justice — law clerks and peers who knew her personally. What right did I have to mourn her like I knew her? So I stopped to think. Why did it feel like a personal loss? And I realized that, in the background of my entire career, I had taken strength from her words and actions. She was a mentor I never met.

Justice Ginsburg entered my consciousness in 1996. I was in high school and remember having a debate with a friend about her decision regarding the male-only admission policy of the Virginia Military Institute. My friend, a self-identified feminist, thought the whole thing was crazy.

“Sybil,” she said, “you don’t want to go to VMI do you? It sounds insane. You don’t like it when the gym teacher yells. Why would you care if you could go?”

I struggled to articulate a response, and it occurred to me that I should actually read the judicial decision. It’s the first judicial decision that I remember reading, and I’ll admit that most of the legal analysis went right over my head. But I remember that Justice Ginsburg gave me the words to answer my friend’s question.

Justice Ginsburg acknowledged that most women “would not choose VMI’s adversative method.” But the issue, Justice Ginsburg emphasized, “is not whether ‘women—or men—should be forced to attend VMI’; rather, the question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” Yes, I thought, that’s the right question. I sure as heck didn’t want to go, but I wanted any woman who had the will and capacity to attend VMI.

As time passed, I attended law school and became a more intelligent consumer of Justice Ginsburg’s decisions. I remember being powerfully moved by Justice Ginsburg’s dissent in the Lilly Ledbetter case. I was inspired by her strategic approach to women’s rights litigation that she described in her 2016 biography. And I remember Justice Ginsburg describing how lonely it was on the Supreme Court after Justice O’Connor’s retirement. As someone who has always treasured my relationships with female colleagues, her statement personally resonated.

So how do we continue her legacy? We must work towards the appointment of qualified women judges. And this work, unfortunately, still matters. In the 8th Circuit—the appellate court that serves all of Arkansas, Iowa, Minnesota, Nebraska, the Dakotas, and Missouri—there is only one female judge.

It’s not that women will be kinder and gentler judges. Women can be tough and ruthless. Catherine the Great. Bloody Mary. Margaret Thatcher. The idea that women will civilize the public arena because they have an “ethic of care” is the exact same reason why Rousseau said that women shouldn’t be allowed to vote—they were too nice to participate in the political arena. This isn’t what we learned from Justice Ginsburg.

We learned from Justice Ginsburg that diversity on the bench enriches judicial decision making. Research suggests that non-homogenous groups generate better outcomes than homogenous ones. And that’s because non-homogenous groups bring different ideas to the table. Smart people are then able to wrestle with more and diverse ideas, and better outcomes result. But Justice Ginsburg didn’t just influence outcomes. She influenced the level of analysis—the Supreme Court gave matters a more rigorous review because of her diverse experiences.

We can’t let our own 8th Circuit continue to make decisions without the benefit of women’s voices. In the words of Justice Ginsburg, “Women belong in all places where decisions are being made.”

Sybil Dunlop is the past-president and a Board Member on the Infinity Project, an organization whose mission is to increase the gender diversity of the state and federal bench to ensure the quality of justice in the 8th Circuit.

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About Sybil Dunlop

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

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