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How the Supreme Court Shapes Women’s Lives: A Primer on Judicial Power

A nonpartisan feminist analysis of the Court’s power over gender policy

In June 2022, a decision emerged from the Supreme Court of the United States that had not been formally announced, and yet it was already national news: a leaked draft opinion in Dobbs v. Jackson Women’s Health Organization signaled that the Court was prepared to overturn Roe v. Wade (1973), the landmark ruling that had protected a constitutional right to abortion access for nearly fifty years. When the final decision was handed down on June 24, 2022, the reaction was swift and polarized (Oyez, 2022). For millions of Americans—supporters and critics alike—the ruling seemed to arrive almost without warning. But it did not. It was the product of decades of deliberate judicial appointments, strategic litigation, and a constitutional mechanism most people learn about only in passing: judicial review.

Understanding how one nine-member court can alter the lived realities of half the population requires a working knowledge of that mechanism, of how cases travel from courtroom to courtroom until they reach the nation’s highest bench, and of why the identity of each justice matters enormously to gender policy. This primer offers that knowledge—accessibly, empirically, and without partisan prescription.

What Is Judicial Review and Why Does It Matter for Gender Policy?

Judicial review is the power of a court to examine the constitutionality of legislation or executive action and to strike it down if it finds a conflict with the Constitution. It is not explicitly written into the text of the Constitution itself. Instead, it was established by inference—and by assertion—in the landmark case Marbury v. Madison (1803). Writing for a unanimous Court, Chief Justice John Marshall declared that it is “emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison, 1803, p. 177). From that foundational moment, the Supreme Court claimed authority to be the final arbiter of constitutional meaning.

For gender policy, the stakes of that authority are difficult to overstate. Because the Constitution does not mention sex or gender, the Court must interpret whether—and how—existing provisions apply to women. The Equal Protection Clause of the Fourteenth Amendment (1868), for instance, was ratified primarily to address racial discrimination in the aftermath of the Civil War. It was not until Reed v. Reed (1971) that the Supreme Court for the first time struck down a sex-based classification under that clause (Oyez, 1971). Before that ruling, legislatures at every level were constitutionally permitted to treat women differently from men as a routine matter of law. Judicial review was the mechanism that eventually changed that—but it was also the mechanism that, for most of American history, permitted it.

The Architecture of the Federal Judiciary

The federal court system operates in three tiers. At the base sit the district courts—94 of them across the country—where trials are conducted, evidence is examined, and factual records are built. Above the district courts are the thirteen courts of appeals (also called circuit courts), which review legal questions when a party challenges a district court ruling. At the apex sits the Supreme Court of the United States, which hears a small, highly selective docket of cases from the circuit courts and, occasionally, from state supreme courts when a federal constitutional question is at issue.

This layered architecture is not merely administrative. Each level shapes how a legal argument is refined, which precedents apply, and what constitutional questions are preserved for higher review. A feminist plaintiff challenging a discriminatory workplace policy begins her legal journey in a district court; her case may not reach the Supreme Court for years—if ever. Understanding this pathway demystifies why legal change in gender policy is typically slow, contested, and shaped by procedural strategy as much as substantive argument.

How Does a Case Reach the Supreme Court?

The Supreme Court receives roughly 7,000 to 8,000 petitions for certiorari each year and agrees to hear approximately 60 to 80 of them (Greenhouse, 2006). A petition for certiorari—literally a writ ordering a lower court to send up its record—is the vehicle by which a losing party asks the Court to take up its case. Four of the nine justices must agree to grant certiorari for the case to proceed; this is called the “rule of four.”

The Court typically grants certiorari when there is a “circuit split”—a situation in which two or more federal courts of appeals have reached conflicting conclusions on the same legal question—or when a case involves a significant constitutional issue that demands national resolution. This means that the landscape of lower court rulings actively shapes which gender-related questions the Supreme Court even has the opportunity to decide.

The journey of Whole Woman’s Health v. Hellerstedt (2016) illustrates the process well. A Texas law imposing strict regulations on abortion providers worked its way through district court proceedings before a circuit court ruling created the conditions for Supreme Court review (Oyez, 2016). The Court ultimately struck down the law as an undue burden on abortion access. Six years later, a different Court composition reached a different conclusion on a similar question in Dobbs. The mechanism had not changed; the justices had.

Stare Decisis: Precedent as a Contested Concept

A core principle of American jurisprudence is stare decisis—Latin for “to stand by things decided.” The doctrine holds that courts should generally follow their own prior rulings, providing stability and predictability to the law. When attorneys and judges cite precedent, they are invoking this principle.

Stare decisis, however, is not absolute. The Supreme Court has overruled its own precedents throughout history—sometimes in ways that expanded rights (Brown v. Board of Education, 1954, reversing Plessy v. Ferguson, 1896) and sometimes in ways that contracted them (Dobbs v. Jackson Women’s Health Organization, 2022, reversing Roe v. Wade, 1973, and Planned Parenthood v. Casey, 1992). Each reversal is framed as a correction of prior error or a response to changed understanding—but those frames are interpretive, not purely technical. From a feminist analytical standpoint, how the Court characterizes past decisions about women’s bodies, autonomy, and equality reveals assumptions about which errors are worth correcting (Greenhouse, 2006).

The Constitution’s Silence on Sex: An Interpretive Problem

The original text of the Constitution contains no explicit guarantee of sex equality. The Nineteenth Amendment (1920) granted women the right to vote but addressed no other dimension of legal status. The Equal Rights Amendment—which would have explicitly prohibited sex discrimination—was passed by Congress in 1972 but fell three states short of ratification and never became part of the Constitution.

This silence means that constitutional protections for women have always been constructed through interpretation. The Court has applied different levels of scrutiny to different types of government classifications. Racial classifications receive “strict scrutiny,” the most demanding standard. Sex-based classifications receive “intermediate scrutiny,” a somewhat less demanding standard first articulated in Craig v. Boren (1976) (Oyez, 1976). Whether intermediate scrutiny is sufficient to protect women’s equality in all contexts is itself a matter of ongoing feminist legal debate. Justice Ruth Bader Ginsburg, before her elevation to the Court, argued in litigation as an advocate for the American Civil Liberties Union Women’s Rights Project that sex classifications should be treated with the same rigor as race—a position the Court never fully adopted (Greenhouse, 2006).

Landmark Rulings That Defined Women’s Constitutional Status

A brief survey of the Court’s gender jurisprudence illustrates how profoundly judicial interpretation has shaped the material conditions of women’s lives:

Reed v. Reed (1971): The first time the Court struck down a sex-based classification under the Equal Protection Clause. At issue was an Idaho statute giving preference to men over women as estate administrators. The Court found it unconstitutional—a modest but symbolically significant first step (Oyez, 1971).

Frontiero v. Richardson (1973): The Court struck down a federal statute that gave military husbands automatic housing benefits while requiring wives to prove dependence. Four justices called for strict scrutiny of sex classifications; a majority did not (Oyez, 1973).

Roe v. Wade (1973): Using a privacy framework derived from Griswold v. Connecticut (1965), the Court held that the right to terminate a pregnancy was constitutionally protected. The decision grounded women’s reproductive autonomy not in equality doctrine but in a right to privacy—a framing that would later be contested (Oyez, 1973).

United States v. Virginia (1996): Writing for the majority, Justice Ginsburg held that the Virginia Military Institute’s male-only admissions policy was unconstitutional, applying a demanding version of intermediate scrutiny that critics called strict scrutiny in practice (Oyez, 1996).

Dobbs v. Jackson Women’s Health Organization (2022): Overturning Roe and Casey, the Court held that the Constitution confers no right to abortion, returning the question entirely to state legislatures (Oyez, 2022). The ruling triggered immediate changes in the legal landscape across more than twenty states.

Court Composition as a Feminist Issue

Because the Constitution’s meaning in gender-related cases is not self-evident—because it depends on interpretation—who sits on the Court matters in ways that go far beyond simple partisan calculation. Greenhouse (2006) traces how the retirement timing of individual justices, the political circumstances of their appointments, and the ideological evolution of particular judges have all shaped doctrinal development. The composition of the Court is thus not merely a political question but a structural one: it determines which interpretive frameworks, which understandings of equality, and which assumptions about women’s roles will govern constitutional law.

Sandra Day O’Connor, the first woman to serve on the Supreme Court (appointed 1981), occupied a pivotal role as the Court’s swing vote on abortion and affirmative action for two decades. Her departure in 2006 shifted the balance of the Court in ways that reverberated through subsequent gender-related rulings (Greenhouse, 2006). Ruth Bader Ginsburg’s death in September 2020 and the rapid confirmation of Amy Coney Barrett six weeks before a presidential election accelerated a reconfiguration of the Court’s ideological composition that culminated in Dobbs two years later.

Historically, the Court’s all-male composition for most of its history meant that interpretations of constitutional provisions affecting women were made entirely without women’s participation. The first woman, O’Connor, was not appointed until 187 years after the Court’s founding. The first Black woman, Justice Ketanji Brown Jackson, was confirmed in 2022. Representation is not a guarantee of any particular outcome, but the absence of women from interpretive authority for most of American history is itself a structural fact with consequences for gender jurisprudence.

The Appointment Process: A Site of Political Contestation

Justices are nominated by the President and confirmed by the Senate with a simple majority vote—a process that has grown increasingly contentious as the Court’s power over contested social and policy questions has become better understood by the public. Senate confirmation hearings have transformed from largely procedural exercises into high-stakes political events in which nominees are questioned closely—and typically evasively—about their views on settled precedent.

The norm of lifetime tenure (federal judges serve “during good behavior,” meaning effectively for life) amplifies the political stakes of each appointment. A justice confirmed at age 50 may serve for thirty or more years. The ideological leanings of the Court in any given era thus reflect presidential appointments made years or even decades earlier.

For gender policy specifically, the trajectory of appointments from the Reagan administration onward—including nominees openly skeptical of the jurisprudential foundations of Roe—demonstrates that the appointment process functions as a long-term policy mechanism, not merely a staffing decision (Greenhouse, 2006). Advocates on all sides of contested gender-related questions have long understood that the composition of the bench is as important as the content of any single ruling.

How Lower Courts Shape the Cases That Reach SCOTUS

The Supreme Court does not operate in isolation. Its docket is largely reactive—it responds to questions that lower courts have generated, contested, and sent upward. This means that federal district and circuit court judges exercise enormous influence over which legal questions the Supreme Court eventually confronts, and in what posture.

Strategic litigation organizations—including the ACLU Women’s Rights Project, founded in part through Ginsburg’s advocacy, and later the Center for Reproductive Rights—have long understood that shaping the lower court landscape is a prerequisite to winning at the Supreme Court level. Cases are chosen carefully, facts are curated to highlight the most favorable constitutional questions, and losses in lower courts are sometimes accepted strategically to build records that invite Supreme Court review (Greenhouse, 2006). This litigation architecture is a form of feminist legal practice: using the judicial system’s own procedural logic to advance arguments for gender equality.

State Courts, State Constitutions, and the Limits of Federal Authority

Federal constitutional law sets a floor, not a ceiling, for rights protection. State constitutions may independently guarantee rights that the federal Constitution does not—and several state courts have ruled that their own constitutions protect abortion access even after Dobbs. This federalist structure means that after a contracting Supreme Court ruling, litigation and advocacy at the state level becomes critically important.

The post-Dobbs landscape has illustrated this dynamic vividly. State courts in states including Kansas, Montana, and California have applied their own constitutional provisions to protect or guarantee reproductive rights independently of federal doctrine (Oyez, 2022). For feminist legal advocates, this has required a rapid strategic reorientation—from primarily federal to primarily state-level constitutional litigation—in ways that underscore how the Supreme Court’s choices redistribute rather than terminate legal conflict.

Why This Matters: Courts as Policy-Makers

A persistent feature of American political culture is the tendency to regard courts as fundamentally different from legislatures—as institutions that apply law rather than make it. The historical and empirical record does not support this distinction in its strong form. As Greenhouse (2006) documents carefully, the Supreme Court has functioned as a policy-making institution throughout its history: establishing the conditions under which laws affecting women are permissible, defining the contours of constitutional equality, and choosing which rights deserve protection.

This does not mean that courts are interchangeable with legislatures. Courts are constrained by case-or-controversy requirements, standing doctrine, and the need to justify decisions in terms of legal text and precedent. But within those constraints, there is substantial interpretive space—and that space has been contested, along gender lines, in ways that have materially affected women’s access to education, employment, healthcare, and political participation. Treating the Supreme Court as a policy-maker is not cynicism; it is realism informed by evidence.

Conclusion: An Informed Citizenry and the Court

The mechanisms described in this primer—judicial review, the certiorari process, the appointment structure, stare decisis, and the federalist distribution of constitutional authority—are not abstract civics concepts. They are the architecture within which battles over women’s lives, autonomy, and equality are waged. Understanding them is a prerequisite for meaningful engagement with debates about gender policy, whether in the voting booth, the courtroom, or the public square.

A feminist perspective on judicial power does not require agreement on any particular outcome. It requires attention to structural questions: Who interprets the Constitution? Whose interests have historically been centered in those interpretations? What procedural pathways exist for challenging rulings that restrict equality? These are questions that empirical and historical analysis can illuminate—and that an informed public must engage with if the promise of constitutional equality is to be made more fully real.

F A Qs

Q: Can the Supreme Court’s decisions ever be reversed?

A: Yes, though it is relatively rare. The Supreme Court can overrule its own prior decisions, as it demonstrated in Dobbs v. Jackson Women’s Health Organization (2022), which reversed Roe v. Wade (1973). Congress can also effectively circumvent certain rulings by passing new legislation or, in rare cases, by initiating a constitutional amendment—a process requiring two-thirds approval in both chambers of Congress and ratification by three-fourths of states. Additionally, state constitutions may independently protect rights that the federal Constitution does not, offering an alternative legal avenue when federal precedents are narrowed.

Q: Why doesn’t the Constitution explicitly protect sex equality?

A: The original Constitution was drafted in 1787 by a convention composed entirely of white men, in a legal culture that treated women as legal dependents of their fathers or husbands. The Fourteenth Amendment (1868) expanded equality protections after the Civil War but was understood at the time to address racial rather than sex-based discrimination. The Equal Rights Amendment, which would have explicitly prohibited sex discrimination, was passed by Congress in 1972 but never achieved the ratification threshold required to become part of the Constitution. As a result, sex equality protections have had to be constructed through judicial interpretation of existing clauses—a far less certain foundation than explicit constitutional text.

Q: What is the difference between strict scrutiny and intermediate scrutiny?

A: These are legal standards courts apply when evaluating whether a government law or policy is constitutional. Strict scrutiny—applied to racial classifications and certain fundamental rights—requires the government to show that a law serves a compelling interest and is narrowly tailored to achieve it. It is the most demanding standard, and laws rarely survive it. Intermediate scrutiny—applied to sex-based classifications since Craig v. Boren (1976)—requires that a law serve an important government interest and be substantially related to achieving that interest. It is a meaningful standard but somewhat easier for the government to satisfy, which is why many feminist legal scholars have advocated for applying strict scrutiny to sex classifications as well.

Q: How many women have served on the Supreme Court?

A: As of 2024, five women have served on the Supreme Court in its 235-year history. Sandra Day O’Connor was the first, confirmed in 1981. Ruth Bader Ginsburg was confirmed in 1993. Sonia Sotomayor joined the Court in 2009 and is the first Latina justice. Elena Kagan was confirmed in 2010. Ketanji Brown Jackson, confirmed in 2022, is the first Black woman to serve on the Court. For the overwhelming majority of American history—from 1789 through 1981—an institution with binding authority over questions of sex equality was composed entirely of men (Greenhouse, 2006).

Q: Does the Supreme Court have the final word on every legal question affecting women?

A: Not entirely. The Supreme Court is the final authority on questions of federal constitutional and statutory law, but it operates within a layered legal system. State constitutions can independently protect rights beyond what the federal Constitution guarantees—and several state courts have done exactly that on reproductive rights in the aftermath of Dobbs. Congress retains the power to pass legislation that expands protections (such as the Pregnancy Discrimination Act of 1978 or the Violence Against Women Act of 1994), subject to the Court’s own review. International human rights frameworks, while not binding on U.S. courts, also provide normative standards that advocates and policymakers invoke. The Supreme Court is enormously powerful, but it is not the only arena in which women’s legal status is contested and defined.

References

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