JUSTICE Ruth Bader Ginsburg told Katie Couric last week that the Supreme Court has a “blind spot” when it comes to women’s issues. In contrast to the strides it has made in protecting the rights of gays and lesbians—overturning anti-sodomy laws a decade ago and gutting the Defence of Marriage Act last year, with more same-sex marriage litigation on the horizon—the Court has made little progress in protecting equality for women. Adam Liptak of the New York Timesreports that in a recent talk, Justice Ginsburg said the court fails to recognise “the ability of women to decide for themselves what their destiny will be.” For Justice Ginsburg, Mr Liptak writes, the five men in the conservative majority do “not understand the challenges women face in achieving authentic equality.” What accounts for the gender insensitivity of the conservative justices? Mr Liptak points to Justice Anthony Kennedy’s paternalistic streak in several opinions. Other observers think that the religious beliefs of the five conservatives are the culprit. Sheer institutional memory must also play a part. It has been a while since the Court ruled in 1872 that because women occupy a separate sphere and because “[m]an is, or should be, woman's protector and defender”, a woman named Myra Bradwell could not practice law in the state of Illinois. But it has been only a generation since the justices finally determined that laws treating individuals differently based on their sex trigger anything but the lowest level of judicial scrutiny. As it happens, that case, Craig v Boren, addressed the injustice to young men posed by an Oklahoma law prohibiting the sale of a low-percentage beer to males under 21 and to females under 18. If it were not for Supreme Court justices empathising with 18-year-old blokes trying to score some near-beer, gender equality may not be where it is today.

And this brings us to what Justice Ginsburg seems to find missing in the minds of the conservative justices: empathy for women. In Burwell v Hobby Lobby Stores, which wehavecoveredextensively on this blog, Justice Ginsburg wrote a stinging rebuke to the five men who voted to uphold religious employers’ rights to deny female employees certain forms of contraceptive coverage under the Affordable Care Act. Justice Samuel Alito’s majority opinion was rather thin on the question of women’s interests: he glibly granted that the government's interest in providing no-cost contraceptives is “compelling”, and chose to attack the mandate on other grounds. (But Justice Alito couldn’t resist adding that “it is arguable” that the text of the ACA “supports” the objecting parties’ view that the state’s interest is anything but compelling.) In straining to portray the decision as “narrow,” Justice Alito worked to reassure anyone who might be worried that they could soon be denied access to childhood immunisations or blood transfusions if those medical practices run up against their employers’ religious scruples. But by labouring to disavow a slippery slope, Justice Alito implicitly pooh-poohed the harm done to the thousands of women who work at Hobby Lobby stores, along with the many others who work at other closely held, religiously devout firms, who can now be denied a federally mandated medical benefit. For Justice Alito, it seems, no-cost IUDs are like candy in the dish on the receptionist’s desk: they’re certainly nice for those who want them, but there’s no great harm in snatching them away. Anyone who craves such a treat can simply go ahead and buy it for herself.

Seven years ago, in another Alito-Ginsburg spat, the Supreme Court ruled that Lilly Ledbetter was too tardy in suing her employer, Goodyear Tyre and Rubber, for gender discrimination. Though she had received a number of unfair negative evaluations in the late 1970s and early 1980s, and as a result earned a manager’s salary about 15% lower than the lowest-paid male manager (and 30% lower than the highest-paid male manager), Justice Alito ruled that "she could have, and should have, sued" back when she was unfairly reviewed. Title VII of the Civil Rights Act requires lawsuits within 180 days of employment discrimination, Justice Alito noted, and each month’s tainted paycheck does not qualify as a new act of discrimination.

Justice Alito’s clinical approach in this majority opinion, which Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy and Chief Justice John Roberts signed—the same five who stood up for the owners of Hobby Lobby craft stores in June—resembled the “umpire” role that the chief justice famously alluded to in his Senate confirmation hearings in 2005: “My job is to call balls and strikes,” he said, “and not to pitch or bat.” The objective, detached, call-’em-as-I-see-’em jurisprudence sounds eminently fair, and it usually is, if the umpire really has no skin in the game. But discrimination is often insidious, as Justice Ginsburg pointed out in her Ledbetter dissent, and Justice Alito’s facile application of precedent and “cramped” reading of the Civil Rights Act fails to appreciate that:

It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

For John Deigh, a professor at the University of Texas at Austin, Justice Alito’s Ledbetter opinion is almost a case of “jurisprudence for five-year-olds.” Young children, Mr Deigh explains, display little empathy, developing the capacity to understand other people’s perspectives only as they engage in various social interactions. It is “remarkable,” Mr Deigh observes, “that Alito’s opinion, though opening with an acknowledgment that the case is one of first impression, is devoid of any attempt to understand from Ledbetter’s perspective...at what point someone in her situation would realize that she had been the victim of sex-based discrimination in pay.” Though Justice Alito also declines to look at things from Goodyear’s perspective, his even-handed refusal to stand in the shoes of either party ends up costing the female employee thousands of dollars in deserved back pay for years of discrimination.

As grim as Justice Ginsburg’s assessment of her colleagues sounds, she offered a note of optimism in her interview with Ms Couric: “Well, [laughs], they all have wives, they have daughters. By the way, I think daughters can change the perception of their fathers.”

Dig deeper:

Liberal criticism of Ruth Bader Ginsburg's Hobby Lobby dissent is misplaced (Jul 2014)

Justice Ruth Bader Ginsburg: Should she stay or should she go? (Mar 2014)

(Photo credit: BRENDAN SMIALOWSKI / AFP)