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Supreme Court opens term with three women, potential for partisan divide

Kagan becomes the 112th U.S. justice, replacing John Paul Stevens.

The justices agree it can be a problem. Justice Stephen G. Breyer, promoting his new book about the court's workings, said he worried that the biggest threat to the court's credibility is that the nine justices are seen as "junior-varsity politicians."

But Breyer and other justices often point out that a majority of the court's decisions each year are unanimous or lopsided. And they say that justices explain in every case why their view of the law commands the outcome they've reached.

"Members of Congress can vote yes or no," Ginsburg said. "Justices have to say why."

She also said the public misunderstands the court's role.

"People sometimes ask me, 'When is the court going to take up such and such issue?' " Ginsburg said. "Thinking that we have an agenda, just as the administration does . . . not appreciating that we are a wholly reactive institution."

Ginsburg is also often asked what difference it will make in the court's deliberations that women will account for a third of the justices. She thinks it will matter only in rare cases.

"In the typical case - that I'm a woman, that I was raised a Jew - that doesn't play into the decision," she said.

She points out that in her tenure on the court, the justice she most often agreed with was Souter, not Sandra Day O'Connor.

Studies have shown the same. In a study of appellate court judges, Epstein and others found no real difference in how men and women decided cases in 12 of 13 areas of law. The exception, Epstein said, was in cases charging sex-based employment discrimination.

Ginsburg offered such a case as an example of an insight she had that her male colleagues lacked.

The case involved Lilly Ledbetter, the Alabama tire plant manager who the court said in a 5 to 4 decision had filed her challenge of unequal pay too late. The majority said the law required Ledbetter to file a complaint as soon as she suspected she was being paid less than men.

Ginsburg read her dissent from the bench and called on Congress to change the law. The resulting legislation became the first bill Obama signed.

"Every woman of my age had a Lilly Ledbetter story," Ginsburg said. "And so we knew that the notion that a woman who is in a nontraditional job is going to complain the first time she thinks she is being discriminated against - the one thing she doesn't want to do is rock the boat, to become known as a complainer."

Her female colleagues - Sotomayor, 56, and Kagan, 50 - are of a different generation. Ginsburg now predicts a day when a majority of the justices are women.

"It wasn't possible earlier. . . . In my generation, women were about 3 percent of the lawyers," Ginsburg said. "But now women are doing everything."

Research editor Alice R. Crites contributed to this report.

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