Women’s Work

By LINDA GREENHOUSE
NYT

We’re accustomed to talking about a “divided” Supreme Court, riven with ideological conflict. But a mean little 5-to-4 decision that the court issued last month all but overlooked in the breathless run-up to the Affordable Care Act arguments, suggests another kind of divide as well: a gender gap.

For the first time since three female justices have been sitting together, the court considered a sex discrimination case. (I’m not counting last term’s big Walmart case which, although it concerned a claim of sex discrimination, reached the Supreme Court as a case about class-action procedure.) And as the case turned out, the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority.

Before anyone objects that I’m being too cute, and that this array simply maps onto the court’s ordinary ideological alignment, I have to explain further. I’m calling the case, Coleman v. Maryland Court of Appeals, a case about sex discrimination, and it was, as Justice Ruth Bader Ginsburg argued powerfully in her dissenting opinion.

But the remarkable thing is that the justices in the majority didn’t see it that way. In ruling that Congress acted beyond its constitutional authority when it opened the states to damage suits by their employees under a section of the Family and Medical Leave Act, Justice Anthony M. Kennedy and his allies denied that this case had anything to do with sex discrimination. It was simply a case about state immunity from suit. The division on the court was thus not primarily one of ideology but of something even more fundamental: perception.

(More here.)