As Deborah Rhode describes, “When 1,100 Michigan elementary students were asked to describe what life would be like if they were the opposite sex, over 40 percent of the girls saw advantages to being male; they would have better jobs, higher incomes, and more respect. Ninety-five percent of the boys saw no advantage to being female, and a substantial number thought suicide would be preferable.”

We don't want to disqualify individuals who are selected partly because they bring that diverse experience to the court in cases where that experience is most likely to make a difference.

As Deborah Rhode describes, “When 1,100 Michigan elementary students were asked to describe what life would be like if they were the opposite sex, over 40 percent of the girls saw advantages to being male; they would have better jobs, higher incomes, and more respect. Ninety-five percent of the boys saw no advantage to being female, and a substantial number thought suicide would be preferable.”

I do think the whole question of judicial accountability is a complicated one. On the one hand, you want to encourage judicial independence. And it's always, I think, problematic when an unpopular decision triggers a recall election. Because it sends a disempowering message to judges. On the other hand, it's the only way that voters have to rein in someone whose views are really so out of the mainstream of public opinion that they jeopardize the legitimacy of the judicial process.

There are cases in which somebody has demonstrated just such an outrageous disregard for the bounds of an acceptable decision that you want a measure of accountability.

I personally think that we should be extremely reluctant to use a recall mechanism for an unpopular decision simply because of the message it sends about judicial independence.

Thurgood Marshall because of his experience of discrimination did bring a special perspective to the court. That’s what his colleagues on the court so valued him for as all the tributes pouring in after his retirement attested.