The Supremes and the Single Girl

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Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science, University of Southern California, and a contributor to Legal History Blog. Her most recent book is Exporting American Dreams: Thurgood Marshall's African Journey (Oxford, 2008). This article originally appeared at Balkinization (blog).

Since when is marriage a job requirement?  It hasn’t been on the United States Supreme Court, but this hasn’t kept some commentators from speculating about the single status of the Court’s latest nominee, Elena Kagan.  On Airtalk today on NPR, Larry Mantle went so far as to ask Mark Tushnet:  “On the personal side did you have any sense of whether she was in a relationship, or dated?”  For Mantle it seemed relevant to know “what kind of a personal life a nominee for the Supreme Court has been living.”  Andrew Sullivan also feels a need to know about Kagan’s personal life:  “Did Obama even ask about it? Are we ever going to know one way or the other?"

What kind of work she does, what kind of citizen of her community she may be, what her values are.  I’m fine on all of that. But I think Larry Mantle, Andrew Sullivan, and the rest of the press have no business in Elena Kagan’s bedroom.

The marital status of nominees for the Court has been noted before, when, for example, David Souter (unmarried), and Sonia Sotomayor (divorced), were nominated.  But the matter largely ended with the biography, and members of the press did not search for relationship details, in a way that seems more fitting for the tabloids.

Being an unmarried justice is not, it turns out, all that unusual.  A look at the history of Supreme Court appointments reveals that a number of justices in the twentieth century did not make it down the aisle.  They were largely what we used to call “bachelors.”

William Henry Moody, who served on the Court from 1906-1910, may have been the Court’s first bachelor, but several followed.  John H. Clarke (1916-1922) is said to have “died still a bachelor” in 1945.  Benjamin Cardozo (1932-1938), one of the Court’s leading figures, never married.  He was very close to his older sister, with whom he lived until her death.  From biographical notes, I wonder whether James Clark McReynolds (1914-1941) was simply too mean to have a life partner.  “Tall, broad-shouldered, and possessing immaculate habits of bachelorhood, he was formidable when angered and very often intolerably rude.”  When female lawyers argued cases in the Supreme Court, McReynolds would often leave the room.  Justice Frank Murphy (1940-1949), in contrast, had many female admirers, and never married, but was engaged late in life.  On the other end of the scale, Justice William O. Douglas (1939-1975) was married four times.

In recent years, of course, two out of the last seven new justices were unmarried, a higher percentage than in previous years, but in keeping with national trends.  The percentage of Americans living alone has increased significantly in recent years.  According to 2009 census data, 62.2 percent of all Americans age 50 (Kagan’s age) and older are married and living with a spouse, and the number is lower for women: 54.5 percent.  The percentage of never married women age 50 and over is low, however: 6.4 percent

And then there’s the law world.  “Practicing law...seems to force women to choose between working and having a family,” the Boston Globe reported in 2007, drawing upon an MIT study of the legal profession.  “Senior male lawyers are more likely than their female peers to be married or living with partners (99 percent vs. 84 percent, respectively) or to have children (80 percent vs. 68 percent).”  The pressures are higher at the top. The Boston Bar Association argued in 1999:  "We are in danger of seeing law firms evolve into institutions where only those who have no family responsibilities -- or, worse, are willing to abandon those responsibilities -- can thrive."

In this environment, it is not surprising that a leading legal figure, the U.S. Solicitor General and former dean of one of the nation’s leading law schools, is consistent with this demographic:  a highly successful single woman.  We might all hope for the day when success at the highest levels of the profession is more of a reality for women with families and children.  But in the meantime, let’s lighten up on Elena.  And let’s focus on her ideas and accomplishments, and not on the unsurprising idea of a single Supreme Court nominee.

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More Comments:

Arnold Shcherban - 5/18/2010

The danger is that, being approved, she (Kagan), perhaps, will try to compensate for her pro-gay position on account of other more important socio-political issues, by making extra steps to the right side.

Steven M Lomazow - 5/17/2010

Agree wholeheartedly.

Unfortunately, the tabloid media can't resist. As long as scandal sells, it will be an issue.

Charles Lee Geshekter - 5/12/2010

Looks like inquiring minds about Kagan's sexual preference(s) will have to wait until Ellen Degeneres or Anne Hesch spills the beans, or at least pops the question - and answers it!

Maybe President Obama listened to Jonathan Rauch who advised him in the NYTimes to nominate a non-heterosexual......

Jennifer M Ryan - 5/11/2010

Everything your article said about women at the top perhaps being single because of job demands. No one would be asking if Elena Kagan is gay if she didn't look gay. Bad haircut, unfeminine appearance. Look at Condi Rice, single but very feminine and known to date men. C'mon, she looks like a dyke!