an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Since when is marriage a job requirement? It hasn’t been on the United States Supreme Court, but this hasn’t kept some commentators from speculating about the single status of the Court’s latest nominee, Elena Kagan. On Airtalk today on NPR, Larry Mantle went so far as to ask Mark Tushnet: “On the personal side did you have any sense of whether she was in a relationship, or dated?” For Mantle it seemed relevant to know “what kind of a personal life a nominee for the Supreme Court has been living.” Andrew Sullivan also feels a need to know about Kagan’s personal life. “Did Obama even ask about it? Are we ever going to know one way or the other?"
What kind of work she does, what kind of citizen of her community she may be, what her values are. I’m fine on all of that. But I think Larry Mantle, Andrew Sullivan, and the rest of the press have no business in Elena Kagan’s bedroom.
The marital status of nominees for the Court has been noted before, when, for example, David Souter (unmarried), and Sonia Sotomayor (divorced), were nominated. But the matter largely ended with the biography, and members of the press did not search for relationship details, in a way that seems more fitting for the tabloids.
Being an unmarried Justice is not, it turns out, all that unusual. A look at the history of Supreme Court appointments reveals that a number of Justices in the 20th century did not make it down the aisle. They were largely what we used to call “bachelors.”
William Henry Moody, who served on the Court from 1906-1910, may have been the Court’s first bachelor, but several followed. John H. Clarke (1916-1922) is said to have “died still a bachelor” in 1945. Benjamin Cardozo (1932-1938), one of the Court’s leading figures, never married. He was very close to his older sister, with whom he lived until her death. From biographical notes, I wonder whether James Clark McReynolds (1914-1941) was simply too mean to have a life partner. “Tall, broad-shouldered, and possessing immaculate habits of bachelorhood, he was formidable when angered and very often intolerably rude.” When female lawyers argued cases in the Supreme Court, McReynolds would often leave the room. Justice Frank Murphy (1940-1949), in contrast, had many female admirers, and never married, but was engaged late in life. On the other end of the scale, Justice William O. Douglas (1939-1975) was married four times.
In recent years, of course, two out of the last seven new justices were unmarried, a higher percentage than in previous years, but in keeping with national trends. The percentage of Americans living alone has increased significantly in recent years. According to 2009 census data, 62.2% of all Americans age 50 (Kagan’s age) and older are married and living with a spouse, and the number is lower for women: 54.5%. The percentage of never married women age 50 and over is low, however: 6.4%.
And then there’s the law world. “Practicing law...seems to force women to choose between working and having a family,” the Boston Globe reported in 2007, drawing upon an MIT study of the legal profession. “Senior male lawyers are more likely than their female peers to be married or living with partners (99 percent vs. 84 percent, respectively) or to have children (80 percent vs. 68 percent).” The pressures are higher at the top. The Boston Bar Association argued in 1999: "We are in danger of seeing law firms evolve into institutions where only those who have no family responsibilities -- or, worse, are willing to abandon those responsibilities -- can thrive."
In this environment, it is not surprising that a leading legal figure, the U.S. Solicitor General and former Dean of one of the nation’s leading law schools, is consistent with this demographic: a highly successful single woman. We might all hope for the day when success at the highest levels of the profession is more of a reality for women with families and children. But in the meantime, let’s lighten up on Elena. And let’s focus on her ideas and accomplishments, and not on the unsurprising idea of a single Supreme Court nominee. Posted
by Mary L. Dudziak [link]