Bonnie Stabile & Aubrey Leigh Grant. Women, Power, and Rape Culture: The Politics and Policy of Underrepresentation. Praeger, 2022.

It is as important today as it was in 1991 that I feel free to speak. If I let my fears silence me now, I will have betrayed all of those who supported me in 1991and those who have come forward since. More than anything else, the Hill-Thomas hearing of October 1991 was about finding our voices and breaking the silence forever. — (Anita Hill, in Speaking Truth to Power, 1998 on her testimony against Supreme Court nominee Judge Clarence Thomas)

Why suffer through the annihilation if it’s not going to matter? — (Christine Blasey Ford, speaking of her decision in August 2018 not to come forward with allegations of sexual assault by Supreme Court nominee Brett Kavanaugh back when they were both in high school)

Now I feel like my civic responsibility is outweighing my anguish and terror about retaliation [for testifying]. — (Christine Blasey Ford, after her request to have her allegations remain confidential was violated, explaining her decision to come forward in September 2018)

I think you look to judges to be the arbiters of right and wrong…. If they don’t have a moral code of their own to determine right from wrong, then that’s a problem. So I think it’s relevant. Supreme Court nominees should be held to a higher standard. — (Russell Ford, Christine Blasey Ford’s husband, speaking of her testimony in 2018)

Harassment is more about upholding gendered status and identity than it is about expressing sexual desire or sexuality. Harassment provides a way for some men to monopolize prized work roles and to maintain a superior masculine position and sense of self. — (Vicki Schultz in an Open Statement on Sexual Harassment from Employment Discrimination Law Scholars in Stanford Law Review, 2018)

Introduction

At the end of 2017, just after the MeToo movement had been declared Time magazine’s “Person of the Year,” Supreme Court Chief Justice Roberts wrote that the judicial branch was also “not immune” to the “problem of sexual harassment in the workplace.” The remark came in the context of his annual State of the Judiciary report, where he announced plans to evaluate standards of conduct and procedures for addressing “inappropriate behavior … to ensure an exemplary workplace for every judge and every court employee.” By mid-December 2017, Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, had joined the ranks of powerful men accused of sexual harassment, after a total of fifteen of his former clerks and externs came forward to report incidents they had experienced while in his employ. During his thirty-two years on the Ninth Circuit, where he had for many years presided as chief judge, his accusers alleged that he had shown them pornography, subjected them to offensive comments, and touched them inappropriately. Kozinski, who retired following the allegations, admitted only to having “a broad sense of humor and a candid way of speaking,” and apologized only for perhaps not having “been mindful enough of the special challenges and pressures that women face in the workplace.”

Supreme Court Justices Clarence Thomas and Brett Kavanaugh had also each been publicly accused of sexual harassment or assault but survived their confirmation hearings nonetheless and succeeded in securing lifetime appointments on the nation’s highest court. Both were nominated to the Supreme Court by Republican presidents, George H. W. Bush and Donald J. Trump, respectively, and each consistently votes with the conservative side of the court. In this chapter, we consider the implications of their presence on the court for women as citizens whose lives will be impacted by their judicial decisions and for the individual women who came forward to testify as character witnesses. We also consider whether and to what extent the personal experiences of these justices with regard to the sexual harassment and assault allegations, as well as their ideological persuasions, might influence or be reflected in their judicial decision-making. Champions of women’s rights have seen the ascension of these candidates to the Supreme Court as a significant setback for women’s autonomy. We further suggest that such setbacks can constrain women’s ability to participate and gain positions of power in the public sphere, exacerbating their overall underrepresentation. The conservative credentials of Justices Thomas and Kavanaugh contribute to the tangible effect of constraining rather than advancing women’s rights in cases covering sexual harassment, reproductive rights, and sex discrimination cases. We consider that their status as men accused of sexual harassment and assault, whose accusers were ultimately dismissed in the process of their confirmation hearings, may also influence their judicial decision-making.

Despite the prominent examples of Kozinksi, Kavanaugh, and Thomas, there are very few instances of judges being accused of sexual harassment or assault on public record, making the question of how judicial decisions might be influenced with regard to the experience of committing or being accused of such behaviors impossible to investigate systematically. What is known about sexual misconduct across populations, though, suggests that harassment and assault are likely underreported in the judiciary, as elsewhere. Chief Justice Roberts’s call for investigation and policy to prevent sexual harassment in the federal judiciary resulted in the establishment of a working group, which recommended “expanding the definition of workplace misconduct and streamlining reporting procedures by broadening protections for accusers, ensuring that there are fewer obstacles for reporting misconduct and barring retaliation against victims.” These measures could serve to enhance accountability in the judiciary and might mitigate the burdens imposed on women by workplace misconduct, lessening the attendant detrimental effects on women’s job retention and career advancement often associated with reporting such misconduct. But the measures may prove to be more symbolic than tangibly effectual. Speaking of the incidence of workplace sexual harassment in the decades since employers started routinely providing anti-harassment training, U.S. Equal Employment Opportunity Commissioner Victoria Lipnic said in 2019 that she “was appalled at the number of sexual harassment cases the EEOC continued to see…. Everything that people have been doing for the last 30 years is not working.” In fact, Harvard Business Review reported in 2017 that harassment numbers “haven’t budged” since the 1980s, with about 25 percent of women recounting having been sexually harassed at work.

We propose a model for considering the role of judges in women’s underrepresentation, based on both their ideology and their status as potential perpetrators of sexual harassment or assault, or as purveyors of sexist attitudes. Any judge who engages in sexually harassing behavior, commits sexual assault, or exhibits sexist attitudes in the course of their work can be seen as imposing costs on the women in their employ and collectively creating structural impediments to women’s career advancement. These behaviors can affect women’s well-being and the course of their career trajectories due to the attendant burdens they impose. Conservative judges can also be expected to promote policy that constrain women’s autonomy by supporting measures that, for instance, limit reproductive choice, narrow reporting mechanisms for workplace harassment or violence against women, or limit recourse to establish fair pay. The net effect of the personal behaviors and judicial decisions of conservative judges, then, is expected to perpetuate burdens for women and thus impede women’s representation in positions of power overall.

Liberal judges may be no less likely to sexually harass women, commit sexual assault, or perpetuate sexist attitudes than conservative judges, and the same burdens imposed by these noxious behaviors hold true regardless of who perpetrates them. But liberal judges can be relied upon to more likely favor legal judgments that promote policy that advances women’s autonomy from its disadvantaged position by strengthening reproductive rights, supporting mechanisms for reporting harassment or violence against women, or advancing measures for workplace equity with regard to pay and treatment. Therefore, despite setbacks attributable to their own sexist or offending behaviors, if they do exhibit them, liberal judges may, nonetheless, contribute to mitigating burdens for women and moderating male comparative advantage, thus having the net effect of facilitating advances in women’s representation in the public sphere.

In addition to modeling a role of judges in women’s underrepresentation, we suggest extending the use of the theoretical frame of testimonial injustice, which we also applied explicitly in the campus context, for understanding the larger context in which judges’ actions—their rulings and workplace or personal behavior—exist. Testimonial injustice is defined as a systemic bias consisting of the belief that women are less trustworthy or competent than men. This bias can be seen as both leading to and resulting from legal and policy mechanisms that limit women’s voices and constrain women’s autonomy. Ultimately, these structural impediments can be understood as contributing to women’s underrepresentation in positions of power and authority. Paradoxically, as we noted in the campus setting and as applies across contexts, it is just such representation that could arguably contribute to legal and policy mechanisms that would make women’s testimonial priority more commensurate with that of men.

With this model and framework in mind, we conduct an analysis of cases in several categories related to women’s autonomy, examining the rulings of Justices Thomas and Kavanaugh with consideration of both their ideological perspectives and their status as judges plausibly accused of sexual harassment and assault. Further, we consider the confirmation hearings for each of their appointments to the Supreme Court, examining the proceedings and behaviors of the primary actors involved from the perspective of testimonial injustice. As the hearings ostensibly play a gatekeeping role as to who might ascend to lifetime appointments on the nation’s highest court, with the power to decide cases with lasting impact through precedent, we believe it is important to examine the construct and conduct of those hearings with regard to who is accorded testimonial priority and to what effect.

Expected Influences on Judicial Decision-Making: Ideological Persuasion and Individual Experience

Since the mid-twentieth century, scholars have investigated the question of whether and to what extent ideology influences judicial behavior. The majority of social scientists agree that “individual experience … informs judicial decision making.” These individual experiences have been shown to have a pronounced impact on how justices rule on gender-related cases. Research has found, for instance, that “judges who parent daughters as opposed to sons are more likely to reach liberal decisions—possibly because having daughters causes judges to learn about women’s issues.” Other scholars find “that ideology—usually measured via partisanship—is among the most important factors shaping judicial decision making.” The extent to which ideology influences judicial decisions is contested, though. One study, based on experiments conducted with over two thousand judges suggested that “the political ideology of the judge matters, but only very little.” Other scholars suggest that the extent to which a judge’s ideology influences their behavior differs across levels of the judiciary. Through the hierarchy postulate, political scientists Christopher Zorn and Jennifer Barnes Bowie argue that the influence of ideology increases as one moves up the judicial hierarchy. They find that “the justices of the U.S. Supreme Court—commanding the ‘top’ of the pyramid—are widely understood to focus primarily, if not exclusively, on policy-related considerations in their decision making.” Other studies find that the politics surrounding judicial appointments influences judicial decision-making; one found that Republican-appointed judges sentenced Black defendants to more time in prison than non-Black defendants and women to less time (at three and two months, respectively) than judges appointed by Democrats. It has been suggested that judicial polarization has grown in recent years and is most visible on the Supreme Court, where justices are sorted in voting blocs; indeed “the notion that a president would nominate a justice who would align with the opposing ideological camp, something that had been relatively common in the past, is now unthinkable.”

Representation and Testimonial Injustice

As discussed in the campus context, dominant group members—and here we are referring to men, mostly white—enjoy a surplus of credibility in the wider economy of credibility, while members of historically socially subordinate groups, including women and people of color, are prone to experiencing testimonial injustice due to systemic bias. As evidence of that dominance, it has been noted that of the 114 justices who served on the Supreme Court between when it was established in 1789 and 2020, all but six were white men. When law professor Anita Hill, an African American woman, testified during Clarence Thomas’s Supreme Court confirmation hearing before the Senate Judiciary Committee in 1991, the committee consisted of fourteen white men, and just two women were serving in the Senate at the time. Only one woman had ever served on the Supreme Court: Justice Sandra Day O’Connor, who had been nominated by President Ronald Reagan in his first year in office a decade earlier.

When Christine Blasey Ford testified before the Senate Judiciary Committee in 2018, it consisted of twenty-one members, four of whom were women and three were people of color; all eleven of the Republicans were white men. By then, the Supreme Court, for which Brett Kavanaugh was being vetted at the time, included three women among the nine justices—Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, who had all been appointed by Democratic presidents (Ginsburg by Bill Clinton in 1993 and Sotomayor and Kagan by Obama, in 2009 and 2010). Supreme Court justices are appointed for life, and though senators must face election every six years, the entrenchment of power achieved by many incumbent office holders is illustrated by the fact that three of the senators on the Judiciary Committee when Hill testified were still on it twenty-seven years later when Blasey Ford appeared before them: Senators Chuck Grassley (R-IA), Orrin Hatch (R-UT), and Patrick Leahy (D-VT). During this period, incumbent senators were reelected between 79 and 96 percent of the time and consistently raised ten times as much or more in campaign funds than the million dollars or so typically raised by their challengers.

Senator Joe Biden (D-DE), in his third term in office at the time, was the chair of the Senate Judiciary Committee in 1991 and served in either that capacity or as ranking member for sixteen of his thirty-six years in the Senate, after which he served as vice president of the United States under Barack Obama from 2009 until 2017, and president beginning in 2021. Reflecting on Hill’s treatment during the Thomas hearings later, Biden said, “I did everything in my power to do what I thought was within the rules … I don’t think I treated her badly.” But, as journalist and author Jane Mayer noted, Biden himself had determined the rules that guided the process in the following ways. He agreed to expedite the proceedings, which favored Republican proponents of Thomas, allowing insufficient time to adequately investigate the charges against him. Biden also conceded to Thomas’s team that the Judiciary Committee would consider Thomas’s workplace behavior alone, which determined that corroborating testimony from witnesses about Thomas’s proclivity for watching and talking about pornographic movies would be excluded from the hearing. And though Biden had said that any women who could corroborate Hill’s accusations of sexual harassment would be allowed to testify, three such women were ultimately only allowed to submit written statements in the public record, ensuring that few senators would see them. This, as Mayer underscored, was Biden’s call, damaging Hill’s position and acceding to the favor of traditional power brokers. The rules, as established, meant that the committee would see Senator Orrin Hatch brandishing a copy of The Exorcist as he speculated that Hill had cribbed her accusation of Thomas’s conduct in part from a passage in that book, but that they would not hear from Angela Wright, Rose Jourdain, or Sukari Hardnett, each of whom could corroborate Hill’s accusations and wanted to testify.

Women were seldom seen and heard even less often in any capacity in the Senate environs except in secretarial or other support roles, when Anita Hill, at age thirty-five, raised her right hand to testify before the Senate Judiciary Committee. Wearing a bright blue suit, she stood in sharp contrast to the monochromatic bank of white men in dark suits, many greying or balding, arrayed along the table of questioners before her. As a graduate of Yale Law School and then current professor with experience working at two federal agencies (the Department of Education and Equal Employment Opportunity Commission), Hill’s credentials matched those of the committee members, but, as a woman, and a Black woman in particular, younger than most of her interrogators that day, she was an anomaly in their midst.

Biden, for his part, ultimately voted against Thomas’s confirmation but, nonetheless, supported a system that favored many of his ideological opponents, with whom he still shared the status of Senate brethren. The principle of homophily attests to the strength of ties between people of similar characteristics and experience. The concept of testimonial injustice helps to explain why, as Hill was “speaking truth to power” (the title of her 1998 book chronicling the experience), her version of events would be considered less credible and her ability to be fully heard thus constrained. Hill’s accusations and Thomas’s categorical denial constituted the typical “he said, she said” scenario of testimonial injustice, in which men are more likely to be believed, to believe each other, and to favor leaving their collective comparative advantage intact. Senator Howard Metzenbaum (D-OH) quipped that that if Hill had been believed and the behavior she described being subjected to had been acknowledged as sexual harassment, half the Senate might also have been so charged.

“Look at who has power and who is deemed entitled to have power. And what you tend to find is that men are considerably advantaged over their female counterparts,” Kate Manne said in a New Yorker interview discussing her book Entitled: How Male Privilege Hurts Women. This state of affairs is achieved and perpetuated, by a “systematic facet of social power relations”—“the law enforcement branch of the patriarchal order”—that defines misogyny. Manne acknowledged that many men also face substantial disadvantages because of things like race, but said that “when they compare themselves to women in the same demographic, they are privileged under most dimensions.”

Based on the conduct and outcomes of the Thomas-Hill hearings and the Kavanaugh–Blasey Ford hearings nearly three decades later, women’s ability to be heard in the Senate setting—a historical and persisting bastion of male power—did not seem to have appreciably advanced during that time period. Both episodes were beset by hallmarks of testimonial injustice, in two distinct forms, with women being seen as less competent and less trustworthy. Comments by Senator Hatch, one of the trio of long-term veterans of the Senate Judiciary Committee who presided over both hearings, encapsulate how testimonial injustice continued to play out across the decades. Hatch, who had known Clarence Thomas personally and voted for his confirmation, suggested during the 1991 hearing that Hill had fabricated her testimony based on both the aforementioned horror novel and a court case involving sexual harassment that had recently been reported in Kansas. Then, in 2018, after a phone call with Brett Kavanaugh, whom Hatch also voted to confirm, Hatch said that Blasey Ford, a fifty-one-year-old research psychologist, must have been “mixed up” when she identified Kavanaugh as the individual who had attempted to force himself on her, covering her mouth to suppress her screams, at a party when the two were teenagers.

Various other actors also questioned the mental state and motives of each woman as she brought her story forward. Republican senators accused Professor Hill of being afflicted by “erotomania” and author David Brock called her “a little bit nutty and a little bit slutty”; rumors even circulated that she had returned papers to her University of Oklahoma law students that included pubic hairs. In 2018, then president Trump mocked Blasey Ford’s testimony at one of his infamous rallies, parodying her remarks and portraying her as ditzy and dithering: “How did you get home? I don’t remember. How’d you get there? I don’t remember. Where is the place? I don’t remember. How many years ago was it? I don’t know … I don’t know,” the president continued, egged on by laughter and applause. “What neighborhood was it in? I don’t know. Where’s the house? I don’t know. Upstairs, downstairs—where was it? I don’t know—but I had one beer. That’s the only thing I remember.” Yet Blasey Ford, a professor of psychology herself, explained in response to questioning from Senator Diane Feinstein (D-CA) at the hearing that the neurotransmitter epinephrine “codes memories into the hippocampus, and so the trauma-related experience is locked there, whereas other details kind of drift.” “Indelible in the hippocampus is the laughter, the uproarious laughter between the two [men], and their having fun at my expense,” Blasey Ford recounted to Senator Leahy when he asked what was her strongest memory from that night.

Both Hill and Blasey Ford were accused of having been politically motivated or having plotted to bring down men of otherwise purportedly impeccable credentials by relating, in the most public of forums, their stories of harassment and assault. (President George H. W. Bush said of Thomas upon his nomination in July 1991 that he was “a model for all Americans” and that he had “earned the right to sit on this nation’s highest court.”) Yet each woman had originally declined to testify and ultimately did so out of what they expressed as a sense of duty, after having first attempted to maintain confidentiality in sharing their stories with authorities. After raising their voices, both received death threats. And each comported herself with dignity and forbearance in the face of categorical denials and open expressions of anger on the part of the accused. Hill’s demeanor when testifying before the Senate Judiciary Committee in 1991 was described as poised and reserved. Ford, in 2018, was described as “respectful,” “gracious, accommodating” and “soft-spoken.”

The behavior of the accused in this forum, on the other hand, “gave the lie to the idea that men are expected to be stoical and unemotional.” Kavanaugh, described by one observer as “incandescent with rage” was indignant, intractable, and thundering in his responses. He claimed that the accusations amounted to “grotesque” and “coordinated character assassination.” Kavanaugh, like Thomas before him, declared the confirmation process “a national disgrace” and “a circus” and said the “advice and consent” role accorded to the Senate in the Constitution had been replaced by a “search and destroy” scenario for his confirmation. Kavanaugh called the proceedings “a political hit fueled with pent up anger about President Trump,” and even, without evidence or reason, “revenge on behalf of the Clintons.”

Thomas, for his part, had also been overtly outraged and agitated by the charges against him in 1991, calling the hearing “a high-tech lynching for uppity Blacks who in any way deign to think for themselves.” Though he was accused by a Black woman with a similar origin story to his, with roots in rural poverty, a Yale Law pedigree, and high-level inside-the-beltway experience and he was championed for the role of Supreme Court Justice by most on the Committee before which he faced her allegations (he was ultimately confirmed by thirteen aye to one nay votes), Thomas continued to portray himself as a victim of racial prejudice. “Unless you kowtow to an old order, this is what will happen to you,” he said. “You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”

Kate Manne chose to open her book, Entitled: How Male Privilege Hurts Women, with a profile of Kavanaugh, “red-face, petulant” and shouting most of his answers at the 2018 proceedings, because he was in that moment “the picture of entitlement.” What struck her, she said in a New Yorker interview, was his strong “sense of entitlement to be a Supreme Court Justice and to hold a position of the highest moral authority in the land, despite the very credible sexual-assault allegation against him.” The proceedings were a referendum not only on Kavanaugh’s candidacy for the court but can be seen as symbolically important as an indicator of women’s ability to be heard and heeded in the public sphere, to navigate halls of power traditionally and predominantly occupied by men, not just for Hill and Blasey Ford, but for all women watching and weighing the costs of entering such a fray.

Particularly when relating their experiences with sexual assault, women are often believed to be lying or mistaken and to see sympathy ceded to those who committed such acts rather than to their actual victims—a phenomenon Manne calls “himpathy.” Men accused of sexual assault are often described as having their lives “destroyed” or “ruined” or to be “going through hell,” as Senator Lindsey Graham (R-SC) depicted Kavanaugh, while accusers are routinely doubted and denigrated, with “no comparable outpouring of feeling” for their suffering either in the aftermath of the original experience of assault or in the punishing public spectacle of reporting.

A man’s “life is in tatters” said Trump after mocking Ford’s testimony. “A man’s life is shattered.” Though he had earlier described her as “a very credible witness” and “a very fine woman,” he ultimately doubled down on the narrative that men are under attack in America and considered “guilty until proven innocent,” making no mention of survivors of sexual assault. “Think of your son. Think of your husband,” Trump admonished the crowd at a rally, noting that he himself had what he claimed were “many false allegations” against him and calling it “a damn sad situation.” Ironically, this “discourse of victimhood” articulated by Thomas, Kavanaugh, and Trump, as described by Professor Sarah Banet-Weiser of the London School of Economics and Political Science, “is appropriated not by those who have historically suffered but by those in positions of patriarchal power,” particularly those who are the object of her study of “highly visible, powerful men who have been accused of sexual violence.” One reporter described Judge Kozinski’s three decades long career as having been “undone” over just ten days as women came forward with allegations against him in 2017, rather than attributing its undoing to Kozinski’s own actions over those many years.

Both Thomas and Kavanaugh were spoken of by some as victims, a mantle that they also took on themselves. But the system seems to have worked decisively in their favor during the proceedings, which, in both cases, moved rapidly to a vote on the confirmations, despite the revelations against the nominees, giving short shrift to the attendant FBI investigations of the allegations. In 1991, the FBI’s investigation of Anita Hill’s accusations was “a small and quiet affair, open and shut inside three days, with as few as three witnesses questioned about the nominee’s behavior,” that omitted four potential witnesses with prior knowledge of Hill’s complaints and resulted in a report that misquoted Hill, according to Wall Street Journal reporters. After the three-day-long FBI investigation, the White House declared Hill’s allegations “unfounded” and the panel voted thirteen to one to forward Thomas’s nomination to the Senate floor, where he was confirmed in a fifty-two to forty-eight vote. Kavanaugh was confirmed by a fifty to forty-eight vote after an FBI investigation that was time-limited by the White House and addled by limits on subpoenas and evidence reached no conclusion and released no findings to the public. Nearly three years after the fact, it was reported that forty-five hundred tips received by the FBI in the investigation (really a background check rather than a criminal investigation) were funneled to Trump White House lawyers “whose handling of them” was “unclear.”

Both the accusers and the accused in the Thomas and Kavanaugh cases endured public scrutiny and suffered reputational damage. But the testimony of the women who came forward to testify ultimately did not change the trajectory of the Supreme Court appointments of two men plausibly accused, respectively, of sexual harassment and assault. The result is that these men were granted the authority to adjudicate over many cases involving the well-being and autonomy of women for decades to come, including cases involving sexual harassment. Hill and Blasey Ford, who served as character witnesses for these candidates, saw their credibility and competence questioned and their testimony constrained and disparaged. In the context of the confirmation hearings, presided over by men of privilege in a system of their own design, women’s voices were significantly underrepresented and subject to two main manifestations of testimonial injustice: when a testifier’s claims are ignored and when such claims are inappropriately rejected.

We developed four primary categories of cases pertaining to women’s autonomy for the purposes of this analysis: (1) sexual harassment, (2) violence against women, (3) reproductive rights, and (4) sex discrimination and workplace discrimination. We derived these classifications from a review of the American Civil Liberties Union (ACLU) Women’s Rights Project timeline of major Supreme Court decisions that have bearing on women’s rights. In each category, we identified cases from 1992, Justice Thomas’s first full year serving on the Supreme Court, through 2020, capturing Justice Kavanaugh’s first two full years on the Supreme Court.

For cases coded as either advancing or constraining women’s rights in these categories, we note each justice’s votes, opinions, concurrences, and dissents, drawing from sources, including the Legal Information Institute of Cornell Law School and Oyez, a free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law. As Justice Kavanaugh’s track record on the court is still nascent at the time of this writing, additional sources are used in assessing his judicial record and propensities with regard to women’s rights, including National Women’s Law Center’s report, “The Record of Brett M. Kavanaugh on Critical Legal Rights for Women.”

Further, we examine the court hearings and the circumstances surrounding them, prior to the confirmations of Justices Thomas and Kavanaugh, where testimony was given regarding the alleged misconduct of the nominees, informed by insights from the concept of testimonial injustice originated by Fricker.

Justice Thomas’s Decisions on Sexual Harassment Cases

We identified ten cases involving rulings with bearing on sexual harassment during Justice Thomas’s tenure on the Supreme Court on which he weighed in through a vote, delivering an opinion, or registering concurrence or dissent. Of those ten cases decided between 1992 and 2013, eight can be construed as having advanced women’s rights. In the eight cases that were decided in a way that can be seen as advancing women’s rights, albeit with limitations, Justice Thomas dissented four times: once as the sole dissent (PA State Police v. Suders, 2004); twice joining Justice Scalia (Faragher v. City of Boca Raton, 1998 and Burlington Industries, Inc. v. Ellerth, 1998); and once joining the dissent, written by Justice Kennedy, with Chief Justice Rehnquist, and Justice Scalia also voting no (Davis v. Monroe County Board of Education, 1999). Of the two Supreme Court decisions involving harassment cases seen as constraining rather than advancing women’s rights (both decided in a five to four vote), Justice Thomas wrote a concurring opinion for one, Vance v. Ball State, in 2013, and voted with the majority in the case of Gebser v. Lago Vista Independent School District in 1998.

In the Vance v. Ball State case, Maetta Vance, a Dining Services employee at Ball State University in Indiana, complained of having been slapped, blocked from exiting an elevator, and referred to by racial epithets, including “Sambo” and “Buckwheat” by Saundra Davis, a catering specialist. Davis was “responsible for supervising and providing leadership for kitchen assistants and substitutes,” including Vance, who served as catering assistant. Another employee, Connie McVickers, bragged at work about family ties to the Ku Klux Klan and also called Vance, the only African American in the department, by a racial slur. Vance reported feeling unsafe at work and later sued the university in federal district court for being unjustly disciplined and having her work duties and ability to work overtime curtailed. The district court held that “the University was not liable for the actions of individual coworkers,” as it would be for those officially designated as supervisors under Title VII. The Supreme Court decision announced in January 2013 similarly found that “for the purposes of liability for workplace harassment under Title VII, the definition of a ‘supervisor’ is limited to a person empowered to take tangible employment action against the victim.” Since Davis was not in a position to take “tangible employment actions” over Vance, such as hiring, firing, or changing work assignments, the court found that the employer, Ball State, could not be held liable for harassment. In his concurring opinion, Justice Thomas endorsed the majority’s opinion establishing what he called the “‘narrowest and most workable rule’ for ruling on an employer’s liability for harassment.”

According to Adaku Onyeka-Crawford, director of educational equity and senior counsel of the National Women’s Law Center (NWLC), because of Vance, many who have suffered from workplace harassment, including sexual harassment, have been “denied their day in court, not because harassment didn’t occur, but because of a legal technicality that leads to the conclusion the harassment wasn’t the employer’s fault.” The stricter definition of “supervisor” set forth by Vance means that some colloquially known as supervisors, like Davis, who do, in fact, exert authority over the daily work lives of others, are technically regarded as mere coworkers, and “the standard for coworker harassment is negligence, which is a much tougher standard to prove as a plaintiff.” According to the NWLC, by November 2014 alone, just short of two years after Vance, forty-three sexual harassment cases were dismissed because victims couldn’t prove that the harasser was officially a supervisor. The five-to-four decision in Vance has been called a win for corporate America, in keeping with the business-friendly nature of the Roberts court, the most pro-business court since at least World War II.

In Gebser v. Lago Vista Independent School District, Justice Thomas had earlier voted with the majority in favor of a position that also narrowed institutional liability, setting a “highly restrictive standard … for determining when school districts can be found liable under Federal law for a teacher’s sexual harassment of a student.” In the case in question, high school teacher Frank Waldrop led a book discussion group, to which an eighth-grade student, Alida Star Gebser, was assigned in 1991. Waldrop, who was known to make sexually suggestive comments to students, eventually made sexual advances toward Gebser, with whom he initiated a sexual relationship. Waldrop was arrested, fired, and had his teaching license revoked in 1993 after a police officer discovered him having sex with the underage student. Later that year, Gebser and her mother sought damages under Title IX against the Lago Vista School District. After a district court ruled in favor of the school district, the Supreme Court agreed to review the opinion of the lower court (known legally as granting certiorari). Justice Sandra Day O’Connor delivered the opinion of the Supreme Court in 1998, saying that “damages may not be recovered in those circumstances unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” The court reasoned that, while the harassment of students by teachers is “all too common” and “reprehensible,” they did not think it appropriate to attribute “the independent misconduct of a teacher” to the school district that employs him under Title IX, which they said was primarily designed to prevent “recipients of federal financial assistance from using the funds in a discriminatory manner.” Writing for the dissenting justices, though, Justice Stevens said that “the majority’s policy judgment about the appropriate remedy in this case thwarts the purposes of Title IX” and “ranks protection of the school district’s purse above the protection of immature high school students.”

Justice Stevens concluded his dissenting opinion by saying that failing to hold the school district liable was “not faithful to the intent of the policymaking branch of our government…. It is not clear to me why,” he continued, “the well-settled rules of law that impose responsibility on the principal for the misconduct of its agents should not apply in this case,” especially since the students harmed in such cases “are members of the class for whose special benefit Congress enacted Title IX.” But that very fact may actually explain why the court would make such a policy choice. As a precursor to her discussion of testimonial injustice as hierarchy preservation, Kate Manne notes that we “have a tendency to pardon the hitherto historically dominant,” and “that power does not tend to be granted to historically subordinate people vis-à-vis the dominant without a fight.” Those subjected to harassment in workplaces and schools are often from historically subordinate groups, including women, people of color, and workers dependent on a paycheck. Standards that constrain the scope of who can be held responsible for workplace harassment, such as defined in the original parameters of Title VII and subsequent court decisions like Vance, can be understood as being concerned with preserving the power of the historically dominant—employers, men, and white people, who have overwhelmingly been the authors of such standards—more so than with righting injustices experienced by those with weak political power, who are also often defined by negative social constructions and have been historically socially subordinate. Without sufficient recourse to address harassment in the workplace or educational institutions, members of such subordinate groups can be expected to continue to experience burdens that limit their ability to transcend that subordinate status and achieve more proportional representation in positions of power and privilege.

Gatekeepers, including Supreme Court justices like Thomas, as well as the people whom their policy decisions impact, are characterized by complex intersecting identities that influence their own beliefs and choices, as well as how they are affected by the systems in which they are situated. Justice Thomas, an African American man, is, at the time of this writing, the second of only two African Americans to serve on the court since it was founded. He is also a JD graduate of Yale Law School, the top ranked law school in the United States. He was nominated to the court by Republican president George H. W. Bush, who considered both Thomas’s race and conservative credentials in choosing him to fill Justice Thurgood Marshall’s place upon his retirement from the court in 1991. Thomas is a noteworthy figure for his status as the most conservative justice on the court since the 1930s, the first of two justices to be accused of sexual harassment or impropriety during his confirmation hearing, and for being the longest serving justice, with three decades spent honing his identity as the court’s most right-wing member. Though it is impossible to say with certainty what aspects of identity, whether ideological persuasion or individual experience, might have the most influence on Thomas or any other justice’s decision-making, it is our intent here to illustrate just how influential any given gatekeeper can be in maintaining patriarchal order, which we take to include historical race and class, as well as gender, supremacy.

As a man notoriously accused of workplace sexual harassment himself, Thomas voted in Gebser to make the job of addressing sexual harassment in schools more difficult, by making the school district liable only if a supervising employee knows of the abuse, has authority to intervene, and fails to do so. With the power differential between students, especially underage ones, and teachers, who are the ultimate authority figures in the classroom, most victims of sexual harassment by teachers are afraid to report; they may be uncertain of how or to whom to report; they may fear being disbelieved or the possibility of facing condemnation from parents or peers; they may even harbor misplaced feelings of shame or responsibility for what transpired. These factors, and a liability standard that relies upon official knowledge of harassment “would effectively immunize school districts much of the time” according to the National Women’s Law Center. And the number of those affected is not insubstantial; according to a report made available through the Office of Justice Programs’ National Criminal Justice Reference Service in 2017, “an estimated 10 percent of K-12 students will experience sexual misconduct by a school employee by the time they graduate from high school.”

PA State Police v. Suders, 2004, established the right to sue for sexual harassment even if the employee didn’t initially report it, with Justice Thomas penning the sole dissent. The case involved a police dispatcher, Nancy Drew Suders, who quit her job after enduring persistent sexual harassment for months, including “obscene gestures, lewd comments, and humiliation,” from her supervisors. Suders subsequently brought suit in federal district court, claiming that she had been forced to quit due to intolerable working conditions (known in legal parlance as a case of “constructive discharge”), but the court determined that she could not bring suit since she had not used the employer’s set process for reporting, and the employer had not taken any overt “tangible employment action against her.” On appeal, though, the district judge’s decision was overturned, and the Third Court of Appeals ruled that the police were, in fact, responsible for her quitting, since the harassment had been so bad. As Justice Ruth Bader Ginsburg wrote in the eight-to-one Supreme Court decision, “a reasonable person in the employee’s position would have felt compelled to resign.” As the sole dissenter, Thomas wrote that in an “alleged constructive discharge” resulting “only from a hostile work environment, an employer is liable if negligent” (italics added for emphasis); Thomas wrote that Suders, as the respondent, had “not adduced sufficient evidence of an adverse employment action taken because of her sex, nor … proffered any evidence that petitioner knew or should have known of the alleged harassment.”

Thomas’s dissent might be construed as downplaying or doubting the harassment reported by Suders by calling her quitting an “alleged constructive discharge”—in effect calling into question the veracity of the intolerable nature of her working conditions. Thomas elaborated that in such an act of quitting, if only a hostile work environment is the cause (perhaps implying that there might be other reasons for the employee to have quit, or that a hostile work environment in and of itself might not be sufficient grounds for quitting), an employer is only liable if they can be shown to be negligent. But the catch here, as in so many cases of women reporting harassment or assault, is that their evidence is routinely deemed insufficient based on the policy mechanisms in place. In Thomas’s view, the aggrieved employee here did not provide sufficient evidence of “an adverse employment action taken against her because of her sex” or provide any evidence that the petitioner—the Pennsylvania State Police Department, her employer—“knew or should have known about the alleged harassment,” when, in fact, three of her supervisors evidently not only knew about the harassment but perpetrated it themselves.

The facts of the PA State Police v. Suders case, as summarized by the Court of Appeals and recited in the opinion of the Supreme Court by Justice Ginsburg, include the following: one of Suder’s Pennsylvania State Police supervisors, Sergeant Eric D. Easton, who served as station commander, would bring up the subject of people having sex with animals whenever Suder entered his office. He also told a colleague, in Suder’s presence, that young girls should be taught how to gratify men with oral sex, and he would sit near her wearing spandex shorts and spread his legs apart. Another of her supervisors, Patrol Corporal William D. Baker, would grab his genitals and shout out a “vulgar comment inviting oral sex” five to ten times a night when Suders was on shift, sometimes jumping on a chair while he was so gesturing; he would also “rub his rear end in front of her and remark ‘I have a nice ass, don’t I?’”

During the Supreme Court confirmation process for then judge Clarence Thomas in 1991, Anita Hill’s testimony before the Senate Judiciary Committee outlined similar comments (though not gestures) on the part of Thomas when he was Hill’s supervisor at both the Department of Education and the Equal Employment Opportunity Commission. Thomas, who, according to Hill’s testimony, repeatedly asked Hill to see him socially outside of work, would describe to her “in vivid detail” pornography he had seen that involved women having sex with animals and rape scenes, among other scenarios. He also, according to Hill, boasted about his own “sexual prowess,” once mentioning a porn star named “Long Dong Silver,” and spoke about his own penis size.

Sociologists Angela Hattery and Earl Smith note that institutions that are sex segregated are characterized by hypermasculinity, in which “rape jokes are commonly told” and “women are sexually objectified.” These institutions include police departments, fraternities, the military, and we argue here, all bastions of societal power from which women had been historically barred and in which they are, more recently, substantially underrepresented, including the legislature and the judiciary at state and federal levels. In such hypermasculine cultures, Hattery and Smith say, men often engage in gender-based violence—which we argue includes harassment in the form of aggressive, sexually charged derision and verbal harassment—to demonstrate their masculinity and reinforce women’s inferiority. Such put-downs can have a dehumanizing quality aimed at undermining women’s perceived competence and serve a gatekeeping function to (continue to) exclude women from positions of power.

In addition to the overt sexual harassment endured by Suders while in the employ of the Pennsylvania State Police, her supervisors also took more direct aim at her professional competence. Supervisor Corporal Eric B. Prendergast told her that “the village idiot could do her job” as a police dispatcher. And, after Suders repeatedly took a required computer skills exam to fulfill a job requirement, she was told by her supervisors each time that she had failed; she subsequently discovered her ungraded exams in a drawer in the women’s locker-room and concluded that they had never been officially forwarded for grading. After she took the tests, which she considered to be her own property, from the locker-room, her supervisors, though never bringing official theft charges against her, apprehended, handcuffed, and interrogated her, at first refusing to release her, despite her stated desire to tender her previously prepared statement of resignation.

Questioning women’s competence and trustworthiness are hallmarks of testimonial injustice. Subjecting women to denigrating rhetoric and behavior, then casting doubt on their motives for reporting such injustices—or questioning the very veracity of their statements about them—serves to perpetuate the systems in which women’s voices are effectively silenced or blunted. When Anita Hill came forward as a character witness for Judge Thomas, lawmakers cast about for motives Hill might have had for reporting the harassment. Senator Howell Heflin (D-AL) asked her if she was “a scorned woman” or “a zealot civil rights believer,” whether she had a “militant attitude relative to the area of civil rights” or a “martyr complex.” Hill demurred that she did not seek or enjoy the attention that Heflin implied that she was courting by bringing forth her testimony; to this charge she replied that she did not enjoy the attention, but that even if she did, she would not lie to get it. Senator Patrick Leahy (D-Vermont) asked Hill if she had anything to gain by coming to the hearing; “Has anybody promised you anything for coming forth with this story now?” he asked. Women are often subject to accusations of self-promotion or profit seeking for bringing accusations of sexual harassment or assault. Hill’s response to Leahy typified the experience of many women in similar circumstances when she replied, “I have nothing to gain here. This has been disruptive of my life, and I have taken a number of personal risks. I have been threatened, and I have not gained anything except knowing that I came forward and did what I felt that I had an obligation to do and that was to tell the truth.”

Senator Arlen Specter (R-PA) questioned the reliability of Hill’s testimony at the hearings in 1991, which took place eight or ten years after the interactions between herself and Thomas had occurred. “Federal law is very firm on a six-month period of limitation; how sure can you expect this committee to be on the accuracy of your statements?” Specter asked. Yet, statutes of limitations are known to work in the favor of those who do the harassing or engage in any form of gender-based violence, since it is a well-understood psychological phenomenon that victims are often reticent to come forward and may delay doing so for extended periods of time due to shame, denial, minimization, and fear of the consequences of reporting. As feminist legal scholar Catherine MacKinnon described, statutes of limitations “disappear” the legal existence of possible claims, diminishing the possibility of accountability and promulgating the authority of those in power who can continue to take advantage of their position with impunity. Hill herself explained, when questioned by Senator Alan Simpson (R-WY) during Thomas’s confirmation hearings as to how she could have continued a professional relationship with Thomas after his behavior in the early 1980s, “I was afraid of retaliation. I was afraid of damage to my professional life … this type of response is not atypical, and I can’t explain … it takes an expert in psychology to explain how that can happen.” Ironically, the next woman to testify about experiencing sexually harassing behavior before a Supreme Court confirmation hearing would bear just such a credential, when psychology professor Dr. Christine Blasey Ford later spoke of Brett Kavanaugh assaulting her when the two were high school students.

In addition to rules limiting the time period and circumstances under which one’s testimony might be given, another tactic that can diminish or discredit women is the suggestion that they are mentally or emotionally unstable. When Hill took a lie detector test intended to substantiate the credibility of her statements, Senator Alan K. Simpson (R-WY) suggested that she could have passed the polygraph due to being delusional. Even though the FBI had asked Professor Hill if she would be willing to submit to a lie detector test during their initial interrogation, once she submitted the results of such a test, various male gatekeepers in the confirmation process were at pains to downplay their importance or reliability. Senator Orrin G. Hatch (R-UT) questioned their integrity, saying, “You can find a polygraph operator for anything you want them for.” Senator Arlen Specter (R-PA) declared such tests inadmissible in court, calling them unreliable. And Committee Chair Senator Joseph Biden, Jr. (D-PA) said it would be a “sad day for the civil liberties of this country” if we were to admit such tests in Judiciary Committee proceedings. When asked if Thomas, as nominee, should take a lie detector test, President Bush replied, “I think it’s a stupid idea.” If the intent is to use the test to challenge “the word of one over another”—in this case, Hill over Thomas—“I reject it,” Bush asserted.

In both the PA State Police v. Suders case and Judge Thomas’s confirmation hearing, we see overlapping systems at play that disadvantaged the women who came forward to report having been harassed and advantaged the men so accused. In both cases, the women reporting the harassment described language that objectifies and demeans women. Such language, of the ilk famously described by former President Donald Trump as “locker-room talk,” we argue, has been “implicated in the perpetuation of unjust social hierarchies,” enacting “norms constitutive of harm.” Mary Kate McGowan, professor of metaphysics and philosophy of language and law at Wellesley College, describes how “what might seem like harmless fun” to some, “what is taken to be mere male bonding, and what functions as ordinary banter might also be an act of oppression.” Such language can be spoken with hostile intent, meant to metaphorically mark territory where women are warned against treading, including traditional bastions of male authority like police stations or federal agencies. It can wield particular power when uttered by supervisors or others with authority over its rhetorical targets. But even absent such intent or authority, the use of such language has the potential to do harm. The harm of greatest concern to us here is the role it plays in ostracizing women from positions of power and professional influence that ultimately perpetuate, or at least slow ascent from, their historically subordinate status. This can be accomplished by the creation of hostile working conditions that may compel women to leave and thus become impediments to their career progression. Such language can also signal to others that women are unwelcome or unfit by raising objectifying or sexualized stereotypes that can undermine their perceived competency, credibility or appropriateness for particular roles or workplaces.

Both Suders and Hill may well have been expected to remain silent by their accused harassers, given that each exercised professional authority over them that, in Suder’s case, caused her to quit and in Hill’s caused her to stay silent until Thomas stood to attain a lifetime appointment to the nation’s highest court. Not only did Suders and Hill endure the original insult and injury of verbal harassment, but reporting it required them to repeat objectionable and embarrassing utterances that would open them to derision and disbelief and forever affiliate their names with their accusations of sexual harassment against powerful men. In the process of reporting, Hill was asked to repeat some uncomfortable details of her testimony for the potentially prurient interest of her all-male interrogators on the Senate Judiciary Committee.

According to a CBS News report, in response to Hill’s reporting that Thomas has spoken about pornography and women with large breasts, Senator Arlen Specter (R-PA) suggested that discussing the latter was common workplace behavior, saying, with a smirk, “This is not too bad—women’s large breasts. That is a word we use all the time.” He then goaded Hill to say “large breasts” a second time, after having already asked her about the comment. In her opening statement, Hill recounted an incident in which she said Thomas asked her who had put a pubic hair on his can of Coke; half an hour later, during questioning, Biden asked, “Can you describe it, once again, for me please?”

Thomas’s dissent in the Suders case might be inferred as having been influenced both by his ideological leanings and his personal experience as one accused of sexual harassment by Hill long after the harassment occurred. The court’s decision in the Suders case established the right to sue for sexual harassment, even if the employee didn’t initially report it. This represented a material gain for women by eliminating a procedural boundary to reporting and bringing suit for sexual harassment, in spite of Thomas’s lone dissent. Given the eight-to-one decision, it is reasonable to consider how consequential such a dissenting opinion is likely to be in the four total cases where Thomas penned or joined dissents or, more, broadly in sexual harassment cases.

In a lecture on the topic of dissenting opinions published in 2011, Justice Ginsburg noted that dissents could have both an “in house” and wider impact. Among colleagues in the court, she said, an impressive dissent could lead to the refinement or clarification of the majority opinion circulated in initial draft or even, on occasion, attract the votes needed to become the opinion of the court. Externally, according to Ginsburg, dissents could attract public attention and be used to propel legislative change. Yale Law Professor Akhil Amar said in an interview with NPR’s Nina Totenberg in 2019 that while Thomas himself had “not written many high-visibility majority opinions for the court” he had introduced “many new ideas into the conversation,” some of which eventually win. Such power of persuasion could prove to be much more consequential “if the new conservative Supreme Court majority starts rethinking major and long-established precedents in other areas” with Thomas, the longest serving justice on the court, with no plans to retire, leading the way. When Totenberg considered the topic in 2011, she asked experts whether Thomas, whose voice had not been deemed central to the biggest decisions of the court in the last quarter century, could actually be considered influential; it was his dissents that were attention grabbing, she suggested. Supreme Court advocate Tom Goldstein replied, “I think he’s planting flowers in a garden that he thinks are going to bloom a long time from now. And whether that’s going to happen is going to depend on the court’s membership.”

The Suders decision in 2004, with Thomas’s noted dissent, furthered “the objectives and policy considerations” promoted in earlier “pathmarking opinions,” including the dual 1998 decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, with Thomas dissenting and Scalia joining the dissent in both cases. In these opinions, the Supreme Court technically lowered the bar for workers to make a case that they had been sexually harassed, saying, in the former, that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority and, in the latter, that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for discrimination caused by a supervisor. Despite having been considered advancements, though, these two cases are also seen as being responsible for making workplace sexual harassment lawsuits particularly difficult to file. This is because the “Fargher-Ellerth defense” allows employers to escape liability for actionable sexual harassment if they can show that they have a sexual harassment policy in place that includes some procedure for reporting. An “Open Statement on Sexual Harassment from Employment Discrimination Law Scholars” published in the Stanford Law Review in 2018 argued that the “Fargher-Ellerth defense” is thus responsible for sexual or hostile-work-environment harassment being treated differently than other forms of discrimination, where supervisors can be held liable whether “higher-ups” knew about it or not. Requiring victims of sexual or hostile-work-environment harassment to show that they have first gone through the internal complaint process in their workplace ignores the fact that most victims never formally report for fear of losing their jobs or other retaliation from employers due to shame or the belief that the workplace where they are experiencing harassment is unlikely to take constructive action to address the problem. Further, the requirement expressed in these cases for hostile-work-environment harassment victims to prove that the conduct they were subjected to was sufficiently “severe or pervasive” creates an unduly high standard that “prevents many victims from having their day in court, let alone winning.” Even with these constraints, Thomas’s dissents in these cases expressed the desire to further constrain the ability of victims to report and to strengthen the advantage of employers. Thomas wrote that “an employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor’s conduct to occur” in Burlington Industries v. Ellerth; in Faragher v. Boca Raton, Thomas took issue with the majority opinion that the city “should be liable as a matter of law” merely, Thomas said, “because it did not disseminate its sexual harassment policy.”

In Davis v. Monroe County Board of Education Thomas joined the dissent to the court’s 1999 ruling that public schools could be sued for damages if they failed to stop sexual harassment by students. The case involved a fifth-grade girl, LaShonda Davis, whose classmate repeatedly groped her breasts and genitals. Teachers to whom she reported the behavior did nothing to stop it, and eventually the girl’s grades began to slip, and she became suicidal. Her parents filed a criminal complaint against the classmate, who ultimately pled guilty to sexual battery and moved to a different school district; her parents also brought suit against the school district, leading to the Supreme Court case. While the majority opinion, written by Justice Sandra Day O’Connor, held that school districts should be responsible for such student misconduct, it stipulated that the misconduct must be so “‘severe, pervasive, and objectively offensive’ that it makes it impossible for students to receive the benefits of their public education.” The stringent standard was expressly established to avoid legal action being taken in cases where a student has been merely “‘teased’ or ‘called offensive names,’” O’Connor wrote, but dissenting Justices Kennedy, Scalia, Thomas, and Rehnquist inveighed against the specter of federal intrusion into “day-to-day classroom logistics and interactions” and what Kennedy’s dissent characterized as overreaction to behaviors that were what he called “routine problems of adolescence.” Justice O’Connor concluded her announcement of the court’s decision by directly addressing the dissenters’ implication that “the ruling would ‘teach little Johnny a perverse lesson in federalism.’” Rather, she said, the majority believed the decision “assures that little Mary may attend class.”

Justice Kennedy’s dismissal of sexual harassment as a “routine problem of adolescence” for which federal intervention would be an overreach inadvertently conveys one important element of truth, and that is that sexual harassment in “just part of the school day” for many middle and high school students in the United States, about half of whom experience such harassment and its negative effects. Girls are more likely to be sexually harassed in person and online; are harassed more frequently, physically, and intrusively than boys; and are also more likely to experience negative effects of harassment, including trouble sleeping, decreased productivity, and increased absenteeism. O’Connor’s comment about “little Mary” attending class acknowledges that sexual harassment can be a barrier to girls’ access to education as early as primary school. And, in keeping with the overarching thesis of our present analysis, we argue that such setbacks, set in motion in the early years of education, can have a stunting effect on the educational advancement of girls, with potential long-term consequences for their educational and professional advancement, and thus their wider representation in positions of authority. Further, allowing young perpetrators of such harassment to act with impunity while on their own unfolding educational and professional paths enables that pattern of behavior to continue in spheres of power, creating continuing obstacles for young girls and women.

In addition to his four notable dissents in sexual harassment cases that were decided in ways that we interpret as at least nominally advancing women’s rights, Thomas voted with the court in four such sexual harassment cases that were decided unanimously. In 1992 and 1993, his first two full years on the court, Thomas joined unanimous decisions in favor of the individuals over the organizations named in cases involving sexual harassment. The first of these, Franklin v. Gwinnet County Public Schools in 1992, allowed that monetary damages are available under Title IX to remedy the violation of the federal right to access education. Harris v. Forklift Systems, Inc., 1993 decided that sexual harassment need not “seriously affect [an employee’s] psychological well-being” in order to create an “abusive work environment” that violates Title VII of the Civil Rights Act of 1964. In 2001, he delivered the unanimous opinion in Pollard v. E. I. du Pont de Nemours & Company “that front pay is not an element of compensatory damages under the Civil Rights Act of 1991 and thus is not subject to the damages cap imposed by the Act.” Finally, though he voted with the unanimous court in Crawford v. Nashville in 2009 to extend the antiretaliation provision of Title VII to people who speak out to “oppose” sexually obnoxious behavior, he was joined by Justice Alito in a separate concurring opinion stipulating that the plain meaning of “oppose” should not include “silent opposition,” thus favoring some limitation on that extension.

The cases that we coded as extending women’s rights may effectively advance their voice and power by identifying legal protections, with some limitations, for those reporting sexual harassment in the workplace, and expanding the legal mechanisms for seeking compensatory damages for hostile work conditions based on sex. Employers or school boards facing legal action or monetary damages for sexually harassing behavior in the workplaces or learning environments that they oversee are thus more likely to be held accountable and incentivized to prevent it. This can be seen as a benefit to women, who have historically been subjected to such behavior without recourse, and as an imposition of some measure of burden on those who previously faced no consequences for engaging in or tolerating sexual harassment.

In sum, Justice Thomas rendered legal interpretations that favored organizations or employers over individuals in ways that we interpret as constraining rather than advancing women’s rights in six out of ten cases dealing with sexual harassment brought before the court. In one of the four cases where he joined unanimous decisions favoring the plaintiff (Crawford), he filed a separate concurring opinion that can be viewed as a limitation on that right.

Thomas’s Decisions on Violence against Women

While we consider Thomas’s opinions on cases related to sexual harassment most pertinent to our analysis, we also consider three additional categories of importance to women’s autonomy, beginning with violence against women. Though this category contains just two cases on which Thomas voted during his tenure on the court during the observed time period, they serve as relevant examples of women’s constrained testimonial authority and access to justice.

A unanimous decision of the court made in June 2006 in Davis v. Washington determined that statements made to police during the investigation of a crime could be admitted in court without allowing defendants to cross-examine the person who made the original statements. The decision would allow such a woman’s voice, in the form of the call transcript, to be heard as evidence in court without necessitating that it be considered “testimony,” thus sparing her the burdensome need to appear and be cross-examined, an especially onerous prospect in cases of intimate partner violence. In the original case, a woman named Michelle McCottry called 911 to report that she had been beaten by her former boyfriend, who had then fled the scene. When the 911 call was offered as evidence at trial, the accused had objected that his Sixth Amendment right to confront his accuser had been violated. Justice Thomas wrote a separate opinion for the nine-to-zero decision, both concurring and dissenting in part, saying in the latter case that “though McCottry’s statements were not testimonial, the court should not ‘guess’ at the primary motive behind the statements,” a dissent that seems to express some concern to limit the breadth of the decision expressed by the court and the attendant power of the evidence introduced against the accused abuser. 

In the earlier case of United States v. Morrison, the court held in May 2020 that Congress did not have the authority to enact the Violence Against Women Act of 1994 (VAWA) under either the Commerce Clause or Fourteenth Amendment. Christy Brzonkala, who had been raped as a student at Virginia Tech by fellow students (varsity football players Antonio Morrison and James Crawford), sought redress through this avenue after one of her assailants received a light punishment that was ultimately set aside, and the other received no punishment at all. In the majority five-to-four opinion, Chief Justice Rehnquist said that “if the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of … Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States.” Justice Thomas concurred. Yet, in his dissent, Justice Souter said that VAWA contained a “mountain of data assembled by Congress … showing the effects of violence against women on interstate commerce.”

Rehnquist’s statement suggests that he either believed that the system of justice over which he himself prevailed was not “a civilized system of justice” or that the allegations on which the case was based were not true, despite Morrison having twice been found guilty under the university’s administrative system, through which Brzonkala had filed a complaint under Virginia Tech’s Sexual Assault Policy.

Thomas’s Rulings on Reproductive Rights

We identified seven key Supreme Court cases on reproductive rights between 1992 and 2020 on which Thomas voted, joined an opinion, or registered a concurrence or dissent. Of these, five cases either preserve or advance women’s rights, and two cases restrict women’s autonomy in their reproductive decisions. As seen in table 4.2 , six of these cases addressed women’s right to abortion, and one case dealt with employer-mandated coverage of contraceptives through the Affordable Care Act. In these seven cases, Thomas dissented in four that preserved or advanced women’s reproductive rights. Thomas joined the majority in three cases, two of which restricted women’s reproductive rights (Gonzales v. Carhart and Burwell v. Hobby Lobby Stores). In one case (Ayotte v. Planned Parenthood of Northern New England), Thomas joined his fellow eight justices in issuing a unanimous decision upholding women’s access to abortion while also giving lower courts declaratory and injunctive relief in portions of legislation they deem unconstitutional.

Thomas’s record on women’s reproductive rights, as in the previously examined categories, favors restricting women’s autonomy. His votes on reproductive rights were in agreement with other conservatively appointed men on the court but differed with those of the women justices, including the first female justice, Sandra Day O’Connor, who, as a Reagan appointee, was usually relied upon to vote conservatively. On the three reproductive cases O’Connor heard while serving on the court, though (Planned Parenthood of Southern Pennsylvania v. Casey, Stenberg v. Carhart, and Ayotte v. Planned Parenthood of Northern New England), she voted in favor of advancing women’s autonomy and right to abortion. In the Planned Parenthood of Southeastern Pennsylvania v. Casey case, Justice O’Connor—who jointly wrote the opinion with Kennedy and Souter—said in her opinion, “some of us as individuals find abortion offensive to our most basic principles of morality but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” Thomas, who had joined the court months before the oral arguments for Planned Parenthood of Southeastern Pennsylvania v. Casey were heard, joined Rehnquist in his dissenting opinion, which stated, “Justice White, Justice Scalia, Justice Thomas and I are of the opinion that the court did err in Roe when it determined that the Constitution includes a fundamental right to abortion,” a sentiment which Thomas later echoed. In his dissenting opinion for June Medical Services LLC v. Russo, Thomas wrote that earlier decisions of the court had “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

In 2019, the court heard arguments in Box v. Planned Parenthood of Indiana and Kentucky in which two questions were presented: the first concerned how fetal remains could be disposed of by abortion providers and the second considered whether Indiana “may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers.” The court did not express a view on the second question, as it had only been considered by the Seventh Circuit Court and they chose to “follow [their] ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeal.” In Thomas’s eighteen-page concurring opinion, he discussed the second question, the merit of which the court had chosen not to consider. In his concurring opinion, Thomas wrote that the Constitution is actually silent on what he called “putative right to abortion” and said that since the court created that right through Roe it was “dutybound to address its scope.” Thomas further made clear his fundamental disavowal of a right to abortion in equating it to eugenic manipulation. Some scholars have suggested that the arguments Thomas made in this concurrence could pave the way for the Supreme Court to reconsider their previous decisions on women’s right to abortion, since, under the principle of stare decisis, “Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it”; such a seismic reversal would require a “special justification” and Thomas’s association of abortion with eugenics constructs the case that racial injustice is the “special justification” that warrants overruling Roe. In April 2021, the Sixth Circuit Court upheld Ohio’s law prohibiting abortion providers from performing an abortion if the reason for the abortion is a prenatal diagnosis of Down syndrome. The conservative justices argued that the law was not restricting abortion but rather “combatting eugenics by protecting disabled fetuses from discrimination,” a nod to the opinion espoused in Thomas’s concurrence.

Thomas’s Decisions on Sex and Workplace Discrimination

We identified eleven Supreme Court cases relating to sex and workplace discrimination on which Thomas voted between 1994 and 2011. Nine of these cases dealt with discrimination based on sex. Two of these cases dealt with issues that have implications for future discrimination claims on the basis of sex (Swierkiewicz v. Sorema N.A., which came from a case of discrimination based on national origin, and Nevada Department of Human Resources v. Hibbs, concerned with compliance with the provisions of the Family and Medical Leave Act of 1993). Of all the discrimination cases with Thomas votes, Thomas dissented in four cases that were decided in ways that advanced women’s rights in cases of gender discrimination (J. E. B. v. Alabama ex re TB; Ferguson v. City of Charleston; Jackson v. Birmingham Board of Education; and Jackson v. Birmingham Board of Education), and had recused himself in one case (United States v. Virginia 518 U.S. 514). In two of the eleven discrimination cases during the observed time period (1992–2020), the court voted unanimously, with Thomas delivering the opinion, and both of these unanimous decisions can be seen as advancing the position of employees in relation to their employers (Pollard v. E. I. du Pont de Nemours & Company and Swierkiewicz v. Sorema). In Pollard v. E. I. du Pont de Nemours & Company, the court ruled that front pay does not constitute compensatory damages and therefore cannot be capped.  (We also considered this case in the analysis of Justice Thomas’s rulings on sexual harassment above, since the petitioner, Pollard, said that she had been subjected to discrimination in the workplace based on her sex in the form of coworker sexual harassment.) In Swierkiewicz v. Sorema, the court ruled that employment discrimination cases “need not include specific facts establishing a prima facie case,” allowing for a flexible evidentiary standard. In Kolstad v. American Dental Association, Thomas concurred with the majority opinion that an employer’s conduct does not have to be “egregious” or “outrageous,” in order for an employee to be awarded punitive damages under Title VII of the 1964 Civil Rights Act—a win for employees—but that employers may not face punitive damages if they acted to prevent bias.

Of the two workplace discrimination cases we identified (Ledbetter v. Goodyear Tire & Rubber Company and Wal-Mart Stores Inc v. Dukes, et al.), Thomas voted with the majority opinion in both instances, where rulings favored employers. In Ledbetter v. Goodyear Tire & Rubber Company, Thomas joined the majority opinion finding that Ledbetter’s claim—that Goodyear paid her a lower salary due to her gender—was time-barred, as her claim for discriminatory intent fell outside of the limitation period (180 days of a discriminatory salary decision). In Wal-Mart Stores Inc v. Dukes, et al., Thomas joined the opinion ruling that the five women who filed a class-action lawsuit—alleging that Wal-Mart policies led to unequal pay and longer waits for managerial positions—did not have enough commonalities to constitute a class-action lawsuit. In both cases, the decisions were based on technicalities of rules that favor employers, such as we identified in our analysis of sexual harassment cases above, including time limitations that constrain women’s ability to report or act upon injustices.

Kavanaugh’s Nascent Legacy

Justice Brett Kavanaugh, who joined the Supreme Court in October of 2018, had only ruled on one Supreme Court case within the scope of our analysis at the time of our writing in 2021. He had, however, been vocal about his quite limited view of constitutional protections for personal liberty rights during his twelve years on the D.C. Court of Appeals, where he had the first- or second-most conservative voting record in every area of policy. In a speech given at the American Enterprise Institute in September 2017, Kavanaugh praised former Chief Justice Rehnquist for “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” notably referencing Roe v. Wade.

The one Supreme Court case with a Kavanaugh vote during the time frame of our study, relevant due to its bearing on women’s autonomy, was June Medical Services LLC v. Russo. In that case, the court majority—including conservative Chief Justice Roberts—voted to reverse a judgment of the Fifth Circuit Court that had upheld a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. The judgment was based on a 2016 ruling of the Supreme Court in Whole Woman’s Health v. Hellerstedt, which found there was no medical benefit to women for the admitting privileges requirement, and it further ruled in declaring the requirement unconstitutional, imposed a substantial burden on patients and abortion providers. Kavanaugh authored a dissenting opinion, adding his own voice to a chorus of other dissents issued by Gorsuch, Thomas, and Alito. Kavanuaugh argued that the Louisiana law should be allowed to stand, based on the Fifth Circuit’s judgment that it may not, in fact, be unduly burdensome on women’s right to abortion, because, they said, the plaintiffs did “not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6)” could not obtain admitting privileges—in other words, according to this point of view, the doctors just had not tried hard enough to seek surgical privileges that the Supreme Court had already ruled unnecessary and unduly burdensome in Whole Woman’s Health v. Hellerstedt. Kavanaugh’s dissent was seen by some proponents of abortion rights as nothing less than a “declaration of war” on Roe v. Wade, demonstrating Kavanaugh’s willingness to side with states imposing restrictions.

Kavanaugh’s propensity to support restrictions on access to abortion was also demonstrated a year prior to his appointment to the Supreme Court, while on the U.S. Court of Appeals for the District of Columbia Circuit, when, as part of a three-judge panel, he supported the Trump administration’s efforts to prevent an undocumented minor from accessing an abortion by refusing to grant her leave from the Office of Refugee Resettlement (ORR) shelter where she was staying. When the case was reheard by the full court and the panel’s ruling was overturned, allowing the seventeen-year-old to get an abortion, Kavanaugh dissented, saying that she did not have a right to “abortion on demand.” When asked about this case during his confirmation hearings, Kavanaugh said that “he would have allowed the Trump administration to require the young woman be placed with an ‘immigration sponsor,’” which ostensibly would have allowed her the freedom to access the abortion she was seeking. What he didn’t say was that finding such a sponsor usually takes months, and the minor in the case was sixteen weeks pregnant in a state where abortion is banned after twenty weeks of pregnancy, making it highly unlikely that she would have been able to secure an abortion in such a scenario. In both this case and June Medical Services, Kavanaugh’s dissents focused on procedural points that would have the practical effect of thwarting abortion access if his suggested course of action were followed. Though professing to be a staunch follower of precedent in his judicial opinions, Kavanaugh seems to have maneuvered precedent and some procedural points in these cases in the service of his conservative ideology, to the detriment of women’s autonomy.

During his confirmation process in 2018, the National Women’s Law Center (NWLC) published a report on “The Record of Brett M. Kavanaugh on Critical Legal Rights for Women” after two months of examining his public record with regard to the rights and well-being of women and girls. The report focused on “the constitutional right to liberty and personal decision-making, including the rights to abortion and birth control, and on antidiscrimination protections, including prohibitions against sex discrimination under the Equal Protection Clause or statutory provisions that protect against discrimination in education and employment, and beyond.” Some noteworthy conclusions of the report include that Kavanaugh’s record suggests that he would weaken workplace rights and antidiscrimination protections and continue to rule routinely in favor of employers, since he tended to take the view that being covered by civil rights protections made workers less desirable as employees. Further, NWLC predicted that a Kavanaugh placement on the court would lead to the denial of many meaningful legal protections from sexual harassment (which includes sexual assault) and other forms of workplace discrimination. NWLC reported that Kavanaugh regularly dissented from the majority while on the D.C. Circuit Court of Appeals, with opinions that would make antidiscrimination protections “inapplicable or unenforceable for the plaintiffs before him.” A Washington Post analysis of hundreds of Kavanaugh’s votes while he was on the D.C. Circuit Court concluded that his judicial record was more conservative than almost every other judge there.

Of particular note from the point of view of our own analysis, Kavanaugh exhibited what NWLC deemed a possible “personal tolerance for sexual harassment,” noting his clerkship and subsequent close relationship with Judge Alex Kozinski of the Ninth Circuit, who retired suddenly in 2017 after allegations of sexual harassment from more than a dozen former clerks and professional contacts. Kozinski’s behavior, including showing women pornography in his chambers, groping or fondling women or ogling them, and making suggestive comments, was considered a widely known open secret for years, begging the question of what Kavanaugh knew and when, and what his reaction had been. Kavanaugh himself described the closeness between a judge and clerk as “the most intense and mutually dependent one outside of marriage, parenthood, or a love affair,” suggesting a deep level of kinship and familiarity between the two. Yet he categorically denied being aware of allegations of crude or inappropriate behavior on the part of Kozinksi, saying under oath at his confirmation hearing that he had known nothing about Kozinksi’s reputation for ribald humor—which Kozinski had shared widely for years on his “Easy Rider gag list” listserv with colleagues, friends, and even journalists. Allegations of sexual assault against Kavanaugh himself by Christine Blasey Ford did not come to light until after the NWLC report was completed and would, no doubt, have added to the sense of urgency expressed in its assessment that Kavanaugh’s lifetime appointment to the Supreme Court would represent a threat to pivotal rights and legal protections for women for no less than “generations to come.”

Despite the accusations made against him and his association with Kozinski, Kavanaugh’s record in supporting women clerks and colleagues was called “exemplary” by White House officials. After being tapped by Trump for the Supreme Court position, Kavanaugh spoke of his pride in the fact that the majority of his law clerks had been women, eighteen of whom signed a letter in the summer of 2018 lauding Kavanaugh for making the legal field “fairer and more equal.” Once on the court, Kavanaugh was praised by Justice Ginsburg for making history with his “all-female law clerk crew,” helping the court to reach the milestone of having more women than men as law clerks for the first time ever. One former law clerk from the DC Circuit who credits Kavanaugh for championing her career advancement in the male-dominated legal profession described him as a mentor who “couldn’t be a better advocate for women in his actual day-to-day life.” Yale law professor Amy Chua (of Tiger Mom fame) called Kavanaugh, whose Supreme Court nomination she strongly endorsed, “an exceptional mentor to his female clerks and a champion of their careers”; she called it one of her “proudest moments as a parent” when she learned that her own daughter would clerk for Kavanaugh. Yet when mentoring students on how to win a Kavanaugh clerkship, she included advice on their physical appearance, saying it was “not an accident” that his female law clerks all “looked like models.” Chua’s husband, who is also a Yale law professor, Jed Rubenfeld, advised another prospective clerk that “Kavanaugh liked a certain ‘look.’” Though these comments received a lot of coverage in the press, there have been no allegations made that Kavanaugh had sexually harassed or assaulted anyone in his professional life. The three or four women who came forward to accuse Kavanaugh of sexual misconduct all pointed to incidents that were alleged to have occurred when he was a student, either in high school at Georgetown Prep or as an undergraduate at Yale.

Most Republicans, including the majority of Republican women, wanted Kavanaugh to take his seat on the bench despite the allegations against him, just as they had remained Trump loyalists even after the revelation, in October 2016, of the Access Hollywood tape of Trump’s infamous boasting about grabbing women’s genitals. Republican women are nearly as likely as Republican men to deny or minimize sexism. A nationally representative poll conducted in 2017 found that the majority of all Republicans agreed with the statement, “Most women interpret innocent remarks or acts as being sexist.” Some prominent conservative women used their positions of authority to voice doubt about the veracity of Blasey Ford’s testimony about being assaulted by Kavanaugh at a high school party. Fox News host Laura Ingraham called her “hysterical,” an age-old trope used to trivialize the statements of women—and Trump attorney and former federal prosecutor Sidney Powell described the incident in which Ford related that she feared Kavanaugh might accidentally kill her as he jumped on top of her and put his hand over her mouth to stifle her screams, as a mere “fumbled attempt to make out with a girl at a party.”

Conservative men may valorize and support conservative women, insofar as their elevation to positions of power serves to edify and advance the status quo of predominant male authority, and as long as those women “have a certain look” and toe the party line—that sexism isn’t really a problem and that traditional social structures benefit women as well as men. This expression of conservative antifeminist thought echoes Phyllis Schlaffly, conservative activist and opponent of the Equal Rights Amendment in the 1970s, who also argued that legal measures to protect women from domestic violence and harassment encouraged divorce and hatred of men. While individual women, such as law clerks from prestigious schools, may benefit from the career boost afforded by association with powerful men like Kavanaugh, women in general stand to suffer barriers or setbacks to their rights and ability to exercise individual autonomy in the workplace and in their personal lives as a result of his judicial decisions. If women have a limited ability to make decisions regarding their own health and reproductive lives and are constrained in their capacity to address barriers to career advancement in the form of harassment and discrimination in the workplace, their under-representation in positions of authority in the public sphere can be expected to continue.

Conclusion

“The Supreme Court has an enormous impact on women’s ability to live their lives with dignity and equality. It affects individual liberty, including women’s right to make decisions about their own bodies.” But on the court, as elsewhere in public life, women have long been underrepresented, and their ability to be heard has been constrained by convention and mediated by active, ongoing interpretation of the rules of the game in the form of case law. The legal opinions rendered by Justices Thomas and Kavanaugh often served to defend the status quo of power through legal technicalities or procedural boundaries, like limiting employer liability in Vance, creating hurdles to addressing sexual harassment in Gebser, allowing employers to escape liability for actionable sexual harassment (the “Fargher-Ellerth defense”) if they merely have a policy in place for reporting, or creating the almost impossibly high standard for misconduct that is “severe, pervasive, and objectively offensive” before it must be addressed in public education, as decided in Davis. So, from their earliest days in the education system, through the arc of their professional careers, women face considerable legal hurdles to addressing injustices that they confront in the form of harassment or unequal treatment.

When Lily Ledbetter sued to rectify the injustice of having been paid less and reviewed more harshly than her male coworkers over the course of her career at Goodyear Tire and Rubber Company, the court ruled that the case for salary discrimination could not be brought under Title VII of the Civil Rights Act of 1964, not because the case lacked merit but because of the 180-day statutory limitations period. When Anita Hill testified as to Thomas’s harassing behavior a decade earlier, Senator Specter, rather than addressing the substance of her concerns, raised the “very firm” federal requirement for a six-month period of limitation for reporting and cast doubt on the accuracy of her statements. As suggested by MacKinnon, the strictures of statutes of limitations serve to suppress the possible existence of claims for justice based on the technicality of arbitrary and constraining time limits, thus perpetuating the authority of those historically holding authority.

That authority, encoded in law through means such as statutes of limitations, is further supported by the tacit tenets of testimonial injustice, where women are seen as less competent and trustworthy than men, lessening their testimonial authority when they do speak up to address injustices. And, since historically, mostly men have been making the law, it is not surprising that they are not welcoming of or persuaded by women who speak up to challenge that authority. The principle of homophily explains how men in power find others like themselves to be more credible and relatable, undergirding the proverbial “old boys’ club,” where the alleged “locker-room talk” and actions of men like Kozinski, Kavanaugh, and Thomas might easily be overlooked or excused by their “brothers” and others who still view them as legitimate standard bearers of authority.

The individual experiences and ideological predilections of judges at all levels—especially the highest—have been shown to influence judicial decision-making. Combined with the power of established law and embedded cultural and individual beliefs about the legitimacy of male versus female power, these factors constitute a formidable collective barrier to women being given a full hearing and achieving full representation in the law when addressing issues like sexual harassment and factors integrally affecting their autonomy, like equal pay and reproductive rights.