The Justice and the Baroness

Two female judicial pioneers — one from the U.S. and the other from the U.K. — compared notes at Georgetown University Law Center Thursday and found they both had restroom stories to tell.

“Everybody’s got a bathroom story,” said Lady Brenda Hale, the first woman Law Lord in the British House of Lords. In 1999 when she was named to the Court of Appeal and the Privy Council — yes, the Privy Council — a court official sheepishly told her the ladies room had not yet been completed. Hale, formally known as The Right Honourable the Baroness Hale of Richmond said she has also grown accustomed to being unthinkingly addressed by lawyers during arguments as "M'Lord," not "M'Lady."

Supreme Court Justice Ruth Bader Ginsburg recounted how it took concerted effort in 1994 by her and Justice Sandra Day O’Connor, the court’s first female member, to get the Court to open the public ladies restroom before 9 a.m. She also said a ladies room had to be hastily built in the Court’s robing room when O’Connor joined the Court in 1981.

But the two also contrasted their judicial systems, with a special spotlight on the United Kingdom, which is separating its highest judges from the House of Lords and creating a more independent Supreme Court as of 2009. As part of its transition, the new court will finally have its own home — something the U.S. Supreme Court acquired in 1935 — in Middlesex Guildhall on Parliament Square in London. Its justices also will have a mandatory retirement age of 75. The age limit, said Hale, was adopted because some previously life-tenured law lords had served “long beyond it made sense.”

That innovation prompted Ginsburg to state that the U.S. federal judiciary is “blessed by life tenure.” Ginsburg also noted that by the new British rule, she would be on her way out the door; she turns 75 on March 13.

Another marked difference between the two courts is that the legal assistants employed by the British law lords have significantly less power than the U.S. equivalent, the justices’ law clerks.

Hale said that on her court, the 12 law lords share four legal assistants, whose main job is to summarize incoming petitions. But unlike Supreme Court law clerks, they do not recommend whether to grant or deny review, and she said they “never, ever, ever write our judgments... That would be considered very wrong.” U.S. justices hire up to four clerks each, and to varying degrees, most write first drafts of opinions for their justices.

The two judges also discussed the use of foreign rulings and materials in their own decision-making, which Ginsburg said had been the subject of a “not terribly serious” controversy in the U.S. “There are brilliant jurists all over the world,” Ginsburg said, and if the U.S. Supreme Court ignored their work, its decisions would become “increasingly irrelevant” worldwide.

For her court, Hale said use of foreign materials is essential, especially in light of the dominance of European Union law over domestic law. She discussed how her court has handled sensitive post-9/11 national security cases, culminating in the 2004 decision in which the law lords, sitting in a nine-judge panel, ruled that the indefinite detention of foreign nationals at Belmarsh prison was incompatible with domestic law and the European Convention on Human Rights.

Hale said that her court was initially split 5-4, but ended up voting 8-1 in favor of the detainees.

The discussion was sponsored by the Supreme Court Fellows Program Alumni Association on the occasion of the 35th anniversary of the program with help from Georgetown and the Supreme Court Historical Society. Georgetown Law dean T. Alexander Aleinikoff moderated the discussion.

Comments

[Marsha Papanek, Esq.]

It is interesting to me that this talk occurred at Georgetown Law. I was a part of the first GULC class at its brand new facility at 600 New Jersey Avenue in 1971. About 10-15% of us were women and the four first-year lecture rooms were located on the main floor, each serving about 150 students at a time. However, there was only one women's room on the main floor--one sink, one toilet, one locking door!
That was a rude awakening (the first of many, unfortunately) to all of us women who somewhat naively thought that we would be equally welcome in the profession!

[US state supreme court staff attorney]

Interesting. What is the UK court's resistance to having its legal assistants recommend whether or not to grant review? What are they scared of? They're the judges; all they have to do is disagree with the recommendation. Big whoop.