Women Criminal Defense Attorneys: Recent Supreme Court Rulings and Signs of Harmony Amongst Women Justices
After reading the recent comments by Supreme Court Justice Ruth Bader Ginsburg, which I posted about last week, I was reading through my ABA Criminal Justice Section Supreme Court summaries and was struck by a brief editorial comment from Professor Rory Little of the University of California Hastings College of Law, relating to Justice Sonia Sotomayor’s concurring opinion in Alleyne vs. United States. You can read the summary here.
He wrote, “One ‘story’ of this Term is that this has become the ’Term of the Three-Female-Justices Opinion.’ I believe this is at least the third time this Term that these three have joined in a separate opinion. Hopefully we will cease to remark pon this, now that it appears to have become common.”
Professor Little’s note made me consider how empowering it must feel to have other women at the table, even for women who have reached the highest possible position in the judiciary. I certainly don’t think these three brilliant women are ruling on legal issues based on some kind of gender solidarity, but the harmony and unity that they must experience is something that all women need to strive for in their professional lives.
Beyond that little note which caught my “women criminal defense attorney” eye was the significance of two rulings which will profoundly affect the defense of any criminal defendant. The two cases, which every criminal defense attorney should know about, are Alleyne vs. United States and Salinas vs. Texas.
Alleyne holds that facts that by statute require a mandatory minimum sentence must be submitted to a jury for a finding of proof beyond a reasonable doubt pursuant to Apprendi. This is a departure from the law which previously allowed a Judge to make a finding of fact by a preponderance of the evidence that a minimum sentence should apply. The domino effect of this ruling for clients will be felt for years to come.
And, Salinas holds that it does not violate a defendant’s Fifth Amendment right to comment on a defendant’s silence in a non-custodial circumstance when they have not been Mirandized and have not expressly invoked the privilege of self-incrimination - a disappointing blow to the Fifth Amendment right to remain silent. This ruling represents further erosion of the rights of our society’s poorest and least educated members who don’t have access to attorneys during initial encounters with law enforcement and would never know that they are required to expressly invoke the privilege. Once again, the three female Justices were united and joined Justice Breyer in the dissent.
These two cases are the perfect examples of the power of the Supreme Court to issue rulings that both protect and dilute the rights of the criminally accused. Both of these opinions were issued the same day and ironically the consequences of these rulings on the rights of the accused are gender neutral. So why is the gender ratio on the Supreme Court such an important issue? First, because historically the highest court has been totally dominated by men. Second, because women have earned their right to sit with the brightest minds and yield equal power when issuing rulings that will affect us all for years to come. Finally, the fact that our most powerful Court now includes three women Justices speaks volumes about the advancement of women in law and in business. Maybe one day, as Justice Ginsburg hopes, there will be nine, but for now three is the magic number… and a huge step forward.