The difference a justice may make: remarks at the Symposium for Justice Ruth Bader Ginsburg.

• Author: Baer, Susanne
• Position: Symposium Honoring the Advocacy, Scholarship, and Jurisprudence of Justice Ruth Bader Ginsburg

What have courts done to women? What can courts do for women? And what does it mean to do something for women without being paternalistic, or, eventually, maternalistic, which may be just as bad? These are questions Justice Ginsburg provided to inspire this symposium. Before I address them directly, we need to tackle some remarks on widespread assumptions that govern expectations around here, namely, expectations of, or attributions to, women on the bench.

The key question is, then: What is it that makes a difference, regarding an individual justice or judge, at a court? In the German Federal Constitutional Court, there are two women in the First Senate, out of five female justices on the Court as a whole, who work with eleven men. (3) Does this make a difference? What happened when one woman worked with seven men in one Senate, sometimes mocked as Snow White with the seven dwarfs, a rather discomforting comment for the men? Many believe biology matters, with more or less explicit reference to assumptions about femininity. What exactly is "this" that may indeed differ--the being female, being feminine, being male, or the masculinity of courts? Digging deeper, one may also want to ask whether this is too narrow a question.

Based on what we know about sex in/equalities today, largely due to gender studies and critical race studies, we need to ask for more. But what exactly matters, then, in an intersectional or multidimensional analysis of justices? As an example, I am among the younger justices at my Court--but does age leave a mark? Is it important that I have served for one year by now, out of a twelve year term, or, does seniority matter? I am also the only "out" homosexual there--yet does it matter? The nature of my spiritual life, or religion, is unknown, but I did not refer to God when the President of Germany took my oath in 2011. Additional demographic factors are not on the German agenda, but should we take them into account to make sense of what justices do? For example, my key impressions of life come from a city, Berlin, and I have worked in the United States, while others have stayed at home and live in small towns--but does this have any effect on my work on the bench? It has always been of interest to the wider German public whether justices are law professors, career judges, or politicians. But what does it do to my work that I am indeed a tenured professor, more specifically a professor of public law and gender studies (the latter often lost in reporting) at Humboldt University Berlin, at CEU Budapest, and, last but not least, at Michigan Law School? Does this academic biography really make a difference?

There is a lot of stereotyping around female judges, minority judges, old or young judges, rural or metropolitan background, and professors. One may add that there are quite strong assumptions about a person regarding one's position in one's family (the oldest daughter, the youngest kid, the sandwich child), and some ideas about key experiences in one's life, yet those are privatized into the domain of gossip. Overall, there is indeed very little scientific data that indicate patterns. Regarding gender, it is my impression that biology does not color decisions. Therefore, we should hesitate before we emphatically embrace a notion of an automatic difference via someone's sex, or gender, or any other such imprint. However, gender, just as religious belief, sexual orientation, age, class, or looks does not matter at all. Not only do we know from gender studies of organizations and the micropolitics of politics that there is a complex, intersectional mix of factors at work when people interact, including in courts. We also know that a feminist, namely a non-heteronormative perspective, does make a difference. At least, there is living proof that individuals with courage and the right views, namely views based on rights rather than ideology, may change things indeed--to only name Ruth Bader Ginsburg, Kate O'Regan, Claire L'Heureux-Dube, Yvonne Mokgoro. (4)

Thus, I suggest we should understand this living proof as a particular stance towards law, and thus as a particular stance, a Haltung, towards power. It is an understanding of law as a site of struggle, but also an understanding of law as a promise, as a specific type of argument for better politics, but always also of law as a double edged sword. Here, I do disagree with those who want to reduce law to a last resort and leave complicated controversies to a private sphere or to politics. Yet I do also disagree with those who see law as an inherent guarantee of justice. While law is always a good idea, it may also turn out badly--a double-edged sword. Put differently, I do not see law (anymore, I should add, due to the learning curve in feminist jurisprudence) as "the master's tools [that] will never dismantle the master's house," to quote radical critic Audre Lorde. (5) Namely, the right to equality is, as Catharine MacKinnon has pointed out early on in her work with Marx and radical feminism to deconstruct legality, a crack in that...