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Women Judges and Constitutional Courts: Why Not Nine Women?

This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the book Constitutions and Gender edited by Helen Irving, 2017 Forthcoming

Queen's University Legal Research Paper No. 077

39 Pages Posted: 23 Sep 2016 Last revised: 19 Oct 2016

Beverley Baines

Queen's University - Faculty of Law

Date Written: September 14, 2016

Abstract

We should take Justice Ruth Bader Ginsburg’s question “Why not nine women?” seriously. Justice Ginsburg has served on the United States Supreme Court since 1992 and her proposal is for an all-women Court. Western democracies do not appear poised to adopt her proposal; nor have they endorsed the prevailing proposals for parity by feminist scholars Erika Rackley and Sally Kenney or for feminist judges by Rosemary Hunter and Beatriz Kohen. To explain why these proposals had some initial successes but are now stagnating, I frame them as deploying a “strategy of containment”, a strategy defined by Jamie R. Abrams to explain the loss of efficacy of feminist domestic violence reform. Situating Justice Ginsburg’s proposal as “moving beyond the strategy of containment”, I draw on women’s judgments in Australian, Canadian, German, Indian, Indonesian, Israeli, South African, British and American constitutional cases about or with significance for women’s equality. Whether writing as the only, often the first, woman on a national “constitutional” court, or deciding cases where more than one woman justice wrote a judgment, the richness of their adjudicative diversity demonstrates that women can comprehensively perform the tasks of adjudicating constitutional cases. Far from posing a threat to democracy or the rule of law, the legacy of women jurists’ voices illustrates how they promote constitutional justice for women and men.

Keywords: women judges, constitutional courts, parity, feminist judges

Suggested Citation

Baines, Beverley, Women Judges and Constitutional Courts: Why Not Nine Women? (September 14, 2016). This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the book Constitutions and Gender edited by Helen Irving, 2017 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2840297 or http://dx.doi.org/10.2139/ssrn.2840297

Beverley Baines (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

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