Gender and the Judiciary—A view from the newest justice on the Illinois Supreme Court

With the Honorable Mary Jane Theis’ elevation to the Illinois Supreme Court during the past year, the state marked another significant milestone for women in the legal profession. Although Justice Theis is the fourth female to serve on the Illinois Supreme Court, this is the first time the Court has had three women on the bench at the same time.

Justice Theis was sworn in on Tuesday, October 26, 2010, filling the vacancy left by Retired Chief Justice Thomas R. Fitzgerald. The court is now comprised of four men and three women, with Justice Theis joining Justices Rita B. Garman and Anne M. Burke, the second and third females to serve on the court. Retired Chief Justice Mary Ann G. McMorrow was the first woman on the court, winning election to the post in 1992 and serving as the chief justice from 2002 to 2005. Justices McMorrow and Garman served together from 2001 until 2006, when Justice McMorrow retired and Justice Burke was appointed to fill her vacancy.

Justice Theis has been on the path to success since she graduated from Loyola University Chicago in 1971 with a Bachelor of Arts in History and went on to pursue a law degree from the University of San Francisco School of Law, graduating in 1974. Her legal career began as an assistant Cook County public defender, a post she held until 1983, when she became an Associate Judge for the Circuit Court of Cook County. In 1988, she was elected Circuit Judge of Cook County. Thereafter, Justice Theis was assigned to the First District Appellate Court in 1993, elected to that position in 1994 and served there until her appointment to the Supreme Court. As part of her service to the profession, she has been a member of the Women’s Bar Association of Illinois (WBAI) since 1974 and received the Mary Heftel Hooten Award from the organization in 1998. The award recognizes women in the legal community who support the WBAI’s “commitment to ensuring the success of women attorneys and advocacy for women’s interests.” Although Justice Theis is a role model and leader among women in the legal profession today, she speaks with humility about her accomplishments. In a statement to the Illinois State Bar Association after appointment to the Court, Justice Theis said, “I am humbled by the confidence the Illinois Supreme Court has placed in me. The fact is I love being a judge very much. I love the intellectual part of it. But most importantly, I have an opportunity to shape the law that affects the lives of the People of Illinois.”

Not only has Justice Theis reached one of the major goals of women in the legal profession, but she has also managed to balance a family life in the midst of her career. She is married to Chicago attorney John T. Theis; they have two children and four grandchildren.

Recently, I had the opportunity to speak with Justice Theis about her status as an Illinois Supreme Court Justice, and discuss her perspective on how gender plays a role in the legal system—a topic that has gained greater prominence nationally with the expansion of the number of women on the United States Supreme Court, as well as some state supreme courts.1

Ogden: What influenced you to pursue a legal career?

Justice Theis: Everyone’s story is different. My dad was judge. As a very young person, back when I was in grade school and high school, I would go to his courtroom whenever I had an opportunity and watch the proceedings. It was a time when the law was changing very rapidly. He heard a lot of narcotics cases, and it was a time when issues about the Fourth Amendment were not only on the front pages of the newspapers, but also were huge cases in the United States Supreme Court, and it seemed so compelling and exciting. I could see how all these big ideas related to real human beings who were standing in the courtroom—people who were suffering terribly from addiction—and it just seemed to me the courtroom was the place where the most important dynamics in our whole society were happening. I knew that I wanted to be a part of that.

Ogden: You spent most of your career with the public defender’s office. Is that because you saw so many of the individuals come into your father’s courtroom? Is that what sparked your passion for the defense side?

Justice Theis: Maybe yes, although I think there are certainly many prosecutors who are motivated by very strong concerns for the people they represent as well. Most importantly, I knew I wanted to be a trial lawyer. I wanted to be in court, and I wanted to be asking questions. There are many different ways to practice law. Certainly that style is what we see in movies and on television, but the fact is too, that I had the chance to see that. Also when I was in law school at the University of San Francisco, I participated in a clinical program in which the public defender’s office allowed third year law students to handle all the misdemeanor cases in Marin County. So in my last semester, I didn’t go to school, I practiced law as a public defender. A very key piece in my career was my law school experience. So it seemed very natural to move on and do that when I returned to Chicago.

Let me say this, though: when I read stories about how today’s job market is the worst job market for new lawyers in 35 years, I identify very keenly with that, because if you do the math, that time frame is when I graduated from law school. It was very difficult to get work as a new lawyer back then, as it is today, so I was very, very fortunate to get that position as a public defender in Cook County, and I think it really helped that I had done that clinical program in law school. My message to young law students is: these things are cyclical; you are going to be ok; you’re going find a job; you’re in a good career. I had a hard time finding a job when I got out of law school, and now I am on the Supreme Court.

Ogden: Could you describe your law school experience. Do you feel like you had a different experience than the men in your class? Did you have many female classmates?

Justice Theis: My law school experience, as well as most of my career, really tracks the same pace in that I am not a pioneer. There were great women heroines in the law who were a little ahead of me. By the time I started law school, there was a huge increase in the number of women. Not the way it is today, with many law schools 50-50, men and women. I think there were seven women in the class ahead of me and thirty-five in mine. Thirty-five is not that many, but you can see there was a very significant change in just one year.

So, while certainly myself and the other women were a minority in the class, during the time when I was in law school, when I became a lawyer, and later when I became a judge, the decision makers recognized there was this huge increase in the number of women, and in fact encouraged women. For example, the program I just described in the Marin County Public Defender’s Office was very competitive to get into, and there were a number of women who were able to participate in the program. In many ways, I was very fortunate that the timing in my career was such that the number of women was changing dramatically. I believe I was helped very much by that.

Of course, mine was a very different experience than the men in my class because, still at that point, while the number of women was increasing, it was historically something that was new. Men didn’t have to think about those things. They were just going to law school. So that difference was there. But I know I did not face the challenges that the women ahead of me did.

Ogden: Something on the minds of many young attorneys, both male and female, is the idea of balancing your family and your career. You are married with two children and you have two grandchildren as well. How were you able to balance your family life with your career? Do you have any tips or suggestions that really helped?

Justice Theis: I think this is the most difficult challenge in my professional career, and I think you will find that is true with most other people, especially women. There was a time when men accepted that they would miss out on their family life because they chose to be lawyers and that is just how it’s going to be. I agree with you that younger lawyers, including male lawyers, don’t want that either. They want to have a life with their families, and figure out how to balance work and family life. So I think it is a question for most young men and women.

I wish I had an easy answer. I cannot tell you how many times I will get a call from a young woman lawyer, who will ask to have lunch with me, and I know work-life balance will be a central part of the discussion. They ask, “Judge, please help me, I don’t know how to do this.” And I just keep saying I don’t have a simple answer. The only advice I have is something we all know, the expression “it takes a village.” I had wonderful support from my husband of course, but beyond that I have great friends, who were staying at home with their children, who would help me. My husband drove the carpool every day with our kids and a bunch of other families. That meant all those other moms came and picked up my kids after school and signed them up for swimming lessons and skating lessons. That helped me because they were able to take care of them until I got home.

It is very difficult because the practice of law is extremely demanding. It is not only demanding in office time, but lawyers are also leaders in the community. Participating in bar associations and all those other kinds of things that lawyers do beyond just being in their offices are incredibly time consuming. You can look at that as part of our obligation of being lawyers, but also as a piece of networking that is important in terms of client and career development. Somehow you have to find ways to balance all those things with your family.

I don’t have an answer, except to know that the most important thing in your life is your family, and keeping your priorities straight and working towards the goal of balance is the key. You have to find a way to say no when you have to say no—to say my daughter’s ballet recital is more important than the next bar association meeting.

Ogden: Running for office must be a major source of stress for your family and your career. What were the circumstances surrounding your decision to run for office?

Justice Theis: First, I have been extremely fortunate to have been in every level of the court system in Illinois. In Illinois there is the Supreme Court, the Appellate Court, and the Circuit Court. There are two types of trial judges as you may know. There are associate judges, who are chosen or appointed by the elected circuit judges, and then there are circuit judges who are elected by the people. I was first an associate judge, and that is a different way of running for office. If one wants to become an associate judge, of course you have to develop a career where you have been able to demonstrate your ability to handle the job, and also to meet people, and let them know your qualifications. That is the kind of thing that is important to do through the bar association work to get to know other lawyers and judges.

So I was first appointed an associate judge, where I heard traffic, misdemeanor, and smaller civil cases, those kinds of things. After doing that for five years, I was encouraged by others to take the incredibly tough jump to run for office, and as you may know, I was recently appointed to the Supreme Court. But to keep this position, I have to win the election in 2012. So I am currently a candidate. I am aware of how difficult it is to balance not only family life, but balance doing the incredible amount of work, important work for the court, and also being aware that I have to be a candidate and all that entails. So that is another thing I have to balance and you deal with a great deal of stress.

Ogden: From the perspective of a law student, you have accomplished what many of us aspire to become, a Supreme Court Justice. Do you have any further career goals or have you achieved everything you had hoped to be?

Justice Theis: If I win the election in 2012, that will be a 10-year term. If you have looked at my biography, which I know you have, you might be able to discern my age. I continue to think about so many people my age who are retiring, and here I am looking forward to a new job for ten years. I am very, very fortunate to be in a position to be looking towards the future. I am very energized by it. I am very excited by it. That is about as far as I can see right now.

Ogden: There have been multiple studies that have shown a difference between the way male and female judges, of similar ideology, vote in certain cases, and that the presence of a female on the panel can influence the way her male colleagues vote. How do these findings match your experience?

Justice Theis: First, I have to say I am always very concerned about stereotypes, and that includes male stereotypes. I am very hesitant to say all men do this, even as hesitant to say all women do something else. So I am a little concerned about painting with a wide brush. Maybe at a different level your question is something about judging. There has been a lot of discussion about when Justice Sotomayor was criticized for talking about her judicial view of being a “wise Latina.” It seems to me when you think about judging, it is more than a computer problem where you plug in facts and you plug in law and the computer answers the question. Judges analyze facts, they interpret law, they apply the law to the facts, but each one of those verbs contains an element of judgment of choices.

I think that my own judicial philosophy is that we are human beings who have been chosen to take on these positions. We each choose, and decide, and interpret all those ideas and they come from our experience, world view, and training. And of course that includes who we are, our gender and our life experience. I think there have been similar studies suggesting that if you had broken groups up in political philosophies, you might find similar things. Also, I wouldn’t be surprised that if you did geographic grouping, you may see groups of people decide one way or the other.

In terms of my own experience, I do believe that women come from a different experience when it comes to cases dealing with children. I am not saying that men don’t love their children, but women have a different experience with having children. So their life experiences will change the way they view issues in these cases. That is one idea about the difference in the way men and women judges decide a case. I think it’s just a difference and our life experiences factor into our decision-making process.

In terms of the presence of a woman on the panel, I do think there is something very interesting about that. I have also seen it when there is a different minority, an African-American, who is part of the panel. The dynamic of group decision making is interesting; I have learned a lot about it. On the Appellate Court, I have worked seventeen years where there were three decision makers, and now I am working with seven decision makers. When you change the mix of people and their life experiences, the dynamics of the entity change, and having a woman will change things.

I truly believe there has been a change in dynamics on the Illinois Supreme Court in Illinois. I have experienced that coming on as the third woman. I think a woman alone, the first woman, is being just that—the first woman, and what is the woman’s vote, and woman’s point of view. The second woman probably has to deal with it as well. At this point we may have heard the expression “critical mass.” It tilts things. No one is noticing, the focus on what are the women doing on the court, and are they voting together and all those things. Things change when you have a larger percentage of the group being in that minority. I truly believe there has been a change in our court, and that is not just who I am necessarily, but because there are now three women out of seven.

Ogden: You think that changes the dynamics of the courts as well? Not just influencing the public perception of having three women, but you think dynamics are changing on the court?

Justice Theis: Absolutely!

Ogden: In litigation or even in just discussing a particular issue, do you think women have to learn to influence people or form their arguments differently than men?

Justice Theis: I think any good lawyer needs to present oneself as authentically as possible. In other words, a woman should be a woman, and a man should be a man. At some point in your career you realize the best voice you have is your own voice. So for a woman to try to argue a case as a senior male partner would argue, she might learn some things from him, but ultimately, she should argue it as herself. I have heard people say that there are so many of these woman lawyers who are too tough and too aggressive. Again, I believe that is a stereotype that is probably not statistically based, or evidence based. It is probably just something easy to say. There are woman who are very soft spoken, and gentle, and lyrical, and feminine, who are very persuasive, because they are who they are. Having said that, lawyers use the tools of the law, and the law is very much based on logic, and good argumentation, good writing. Good analysis is based on logic. There are those who would say that logic is something in the world of men, not in the world of women, and I think they are wrong. I think we can use the same tools. We just bring a different voice to them.

Ogden: Do you think if there were more women on the court the dynamics of the court would change? If so, how many women would you like to see on the court, or is that important?

Justice Theis: There are many courts which have a majority of women on the court. Of course the dynamic would change, just as it would if we had more than one African American on the court. One of the things I have learned in my short time on the court is the real brilliance of having a breadth of different types of experiences of different people coming together to make decisions.

Justice Karmeier, for example, is such a lovely gentleman. He is from the teeny, tiny town of Nashville, Illinois, which is very rural. His experience is very different from mine, living in the city my whole life. But when he speaks, I listen very carefully, just because of who he is. His gentleness, his thoughtfulness, and his experience are so different from mine. He really influences me. I listen very carefully to everything he says, because, I know he brings such a different, and important, view and I have a lot to learn from him. I think that is true, as we would add more women to the court that we would be able to hear different voices. It would be great to hear from a downstate woman with a background that is different from my city view. She would bring something else to the court. That would be wonderful.

Ogden: Is there anything else that you would like to share with readers?

Justice Theis: I assume that most law students, at some level, made the choice to go to law school because they wanted to participate in the work of doing justice. I think at some point, most law students and many young lawyers feel very disillusioned with their work because they can’t see what doing discovery and background review has to do with doing justice. It’s a real challenge to find that. My advice to law students is to keep looking for justice. Keep looking and searching for your role in doing justice. I think that if you keep searching, that you will find meaning in your work.

Ogden: That is very encouraging. I want to thank you for your time. ■

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Ellen Ogden is a licensed “711” in the Traffic- Misdemeanor Division in the office of the Madison County State’s Attorney.

1. See http://www.abajournal.com/magazine/article/tipping_the_scales/, an ABA article on the women chief justices in the South.