Remember the supposed gender gap on the U.S. Supreme Court? When the Court’s three female justices sided with plaintiffs in the sex discrimination case of Wal-Mart v. Dukes, we heard quite a bit about how their dissent supposedly represented women’s point of view (albeit joined by male Stephen Breyer). Some of us objected that to the extent the three justices do tend to cohere as a bloc, it has less to do with their gender than with their general ideological stance: as the Court’s most reliably liberal members, Justices Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan can be expected to be somewhat more sympathetic to plaintiffs in a discrimination case, whether that case hinges on sex or, say, national origin or disability. Yet in a column about a different case, Coleman v. Maryland Court of Appeals, Linda Greenhouse of the New York Times specifically rebukes those who imagine an outcome like this “simply maps onto the court’s ordinary ideological alignments.”
Today the court released its opinion in the Confrontation Clause case of Williams v. Illinois, raising the question of whether a criminal defendant has a Due Process right to cross-examine DNA technicians whose findings contributed to his conviction. In this case the three female justices were in dissent, joined by Justice Antonin Scalia (who not infrequently joins his liberal colleagues on matters relating to criminal due process). The other five justices voted to sustain the conviction, though Clarence Thomas adopted his own rationale in a concurrence.
As it happens, Williams was accused of rape, and the female justices (plus Scalia) were therefore the ones more concerned about the niceties of due process toward one in his position. If one adopted the ludicrous “which side are you on?” approach of so much pop commentary on the Court, one might find this a real puzzler: why would the Court’s men be more sensitive to the need to keep rapists behind bars?
That’s ridiculous, of course, but only a couple of notches more ridiculous than attributing the Wal-Mart result to the Justices’ genders. For the rest of us, it remains true that the best way to understand and predict jurists’ votes on tough cases is to consult their philosophy on legal questions, not which restroom they happen to use.