In 2009, the Supreme Court heard the case Safford United School District v. Redding in which a 13-year-old middle school student, Savana Redding, was subjected to a strip search after a classmate told school officials Redding might have had the non-prescription drug ibuprofen “on her person.” Ultimately, the Court ruled that Redding’s Fourth Amendment rights were violated when school officials strip-searched her without reasonable suspicion to believe she was hiding contraband in her undergarments, reiterating from a past Supreme Court decision that search measures must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
During the oral arguments, Justice Stephen Breyer, in attempting to understand the facts of the case, made really bizarre remarks about his own middle school days: “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear,” he told the courtroom. Laughter followed, unsurprisingly, from the crowd.
This wasn’t the only time Breyer was caught with his foot in his mouth during this court session, as his statements prior to his underwear gaffe were even worse. He managed to stammer out, “I’m trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym, they do fairly frequently, not to – you know, and there are only two women there.”
If you can get past the jumbled phrasing, you’ll realize Breyer basically asked in front of the courtroom, “Why is the strip search of a 13-year-old girl such a big deal?” Fortunately, Justice Ruth Bader Ginsburg set the record straight for him, telling him and the court there was no factual dispute that Redding was forced to “shake” her bra and her underwear out in front of school officials. You can hear the warranted exasperation in Ginsburg’s voice as she tries to explain something glaringly obvious to her male colleague.
It’s hard to sit and listen to Breyer try to justify his embarrassing confusion while presiding over the highest court in the land because it highlights an unfortunate reality: Justice Breyer, and all of the male Supreme Court justices who have come before him and those who will come after, just don’t understand what it’s like to be a 13-year-old girl, and they never will. It’s for this very reason why it’s undeniably obvious that there should be more women serving in the judiciary, and ultimately (hopefully!) the Supreme Court.
Ginsburg knew her counterparts on the bench didn’t empathize with Redding’s experience, because, well, they couldn’t.
“They have never been a 13-year-old girl,” she told USA Today. “It’s a very sensitive age for a girl. I don’t think that my colleagues, some of them, quite understood.”
And she’s right. Women bring precious, and most importantly, different, life experiences to the courtroom: experiences that may very well influence the outcome of a case. And that’s OK. In fact, it’s preferable.
It’s strange to believe that judges should be encouraged to reject their backgrounds in courtroom opinions, especially since they’re in such positions of power. The ability to apply the perspectives of young girls and grown women to the court is invaluable, as it allows for alternate understandings, and enrichment, of the law. Even more beneficial, the perspective of a female judge can be infectious: a recent study showed that male appellate court judges were “less likely to rule against plaintiffs bringing claims of sex discrimination, if a female judge is on the panel.”
In its history, out of a total 112 justices, only four women have served on the Supreme Court, the first being Justice Sandra Day O’Connor after her appointment in 1981, then Justice Ginsburg in 1993, followed by Justice Sonia Sotomayor in 2009 and finally Justice Elena Kagan in 2010. Out of the 112 justices, 108 have been men, and 106 of these men have been white, which represents their place as the historically dominant group in the Supreme Court, and displays the vast underrepresentation of diversity on the bench (in both gender and ethnicity).
This lack of gender representation isn’t limited to the Supreme Court, and, not shockingly, is an accurate portrayal of the entire United States judiciary. According to the National Women’s Law Center (NWLC) only 32 percent of active judges over the 13 federal courts of appeal are women, and representation shrinks when looking at individual circuit courts. Additionally, only 30 percent of U.S. district (or trial) court judges are women, and some of these district courts around the country, over a dozen, in fact, have never had a woman on the bench. The numbers are even worse for women of color: only 70 serve as federal judges across the U.S. and a mere 11 serve as U.S. federal courts of appeals judges.
Luckily, the trend of the male-dominated judiciary seems to be turning, with President Barack Obama appointing a record number of female judges to the federal bench in his first term. But, this would have been impossible had it not been for the number of women determined enough to rise to the top in a field where mostly men cast their shadows. This is why it’s so important for society to encourage girls to work hard and to make sure that those girls know that judgeships are not out of their reach.
If we’re lucky, these girls will become women appointed to the Supreme Court, and they too might get their own chance to explain to their confused male colleagues the wild violation of an unreasonable strip search of a 13-year-old girl.
Jillian Correira is a Collegian columnist and can be reached at [email protected].
