Schoenbaum: What Does Being a Woman Mean to Elena Kagan?

Post-Gender Justice
Naomi Schoenbaum
The New Republic
July 12, 2010

The past few months have seen plenty of commentary about Elena Kagan’s status as one of only a few women ever nominated to the Supreme Court. But much of this commentary has rung hollow, consisting of platitudes about how she is a “trailblazer.” Practically no one has focused on what is perhaps a far more important aspect of her gender: Elena Kagan might very well be the first female nominee to the Supreme Court who does not define her gender as salient to her public life.

Kagan has been deemed a female pioneer: the first woman to lead Harvard Law School and to serve as solicitor general. Yet, despite this impressive list of firsts, Kagan (who was dean of Harvard Law School when I was a second- and third-year student there) has not taken up the helm as a leader on women’s issues, or explicitly identified herself as a woman leader in the law. This has something to do with her age. The first generation of women lawyers to make it to the highest echelons of the American legal profession—who faced enormous barriers in the profession simply because they were women—had no choice but to take on gender as a defining feature of their legal education and career. For instance, despite their sterling credentials, both the Reagan-nominated Sandra Day O’Connor and the Clinton-nominated Ruth Bader Ginsburg were initially denied legal employment because of their gender. Both spoke extensively—prior to, and during, their years on the Court—about the challenges they faced as women in the law. Shortly after joining the Court, O’Connor said she would “bring the understanding of a woman to the Court,” and Ginsburg, a pioneer of women’s sex discrimination jurisprudence as a Supreme Court advocate, echoed this sentiment, stating that “there are perceptions that we have because we are women [justices],” referring to herself and O’Connor.