Justice Ruth Bader Ginsburg and the feminine voice

Abstract

This paper examines whether Justice Ruth Bader Ginsburg demonstrates any evidence of a "feminine voice" in her opinions. There has been much jurisprudential literature written recently regrading the possible existence of a "feminine voice." This paper surveyes the literature and defines what is meant by a "feminine voice." The paper proceeds to analyze some of Justice Ginsburg's opinions to determine if a "feminine voice" is present. This study focuses on four areas of law the literature suggests evidence of a "feminine voice" might be found: cases involving gender, race, the Establishment Clause, and physician-assisted suicide. With the exception of cases concerning race, no evidence of a "feminine voice" was found. In race cases, there is evidence to suggest that Justice Ginsburg arrives at her decision in a way that is different from her male colleagues. The lack of evidence of a "feminine voice" in the other areas does not mean that no such voice exists; rather, it is just not present in all of the decisions written by Justice Ginsburg. The paper concludes that, at least in cases involving race, Justice Ginsburg does reason in a "feminine voice." While this is a narrow finding, the fact that there is evidence of a "feminine voice," at least in some cases, suggests that gender does play a role in judicial decision-making at the United States Supreme Court level.