US Supreme Court Justice Sonia Sotomayor once said, “Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.” Yet, to what extent has gender and national origin “made a difference” in the basic assumptions of our judicial system that arise from economic inequality and racial prejudice? Can we see any truly transformative or radical or anti-dominant-male approaches toward justice from any of our female Supreme Court justices? 

Elizabeth Cady Stanton believed that women’s inclusion in public life would morally transform American institutions. Whether due to biology or socialization, she argued that women possessed a humane sensibility missing from male‑dominated structures. If men had built a corrupt society, perhaps women could change it by integrating into it. More than the desire to vote, this was the over-riding belief of many of the early 20^th century American feminists – allow women to join the power structure and watch the world change.

This belief, that oppressed groups possess moral insight unavailable to the dominant class, appears across American history. Martin Luther King Jr. urged Black Americans to become a “moral thermostat,” shaping the nation’s ethical climate rather than merely reflecting it. Integration, he argued, should not mean assimilation into an unjust society, but the introduction of new, more humane social values to transform the society.

When Carol Gilligan published In a Different Voice, she clearly established a gender-specific, alternative value in regard to the concept of justice. There was hope that an “ethic of care” might oppose and overcome a male-oriented “ethic of retribution and deterrence” if women were able to assume greater roles in American society. 

This hope seemed to posit that we might begin to look more conscientiously at the social and economic causes of crime and work toward humane social reform instead of relying exclusively on a system of punishment and retribution which has failed us. Yet, inclusion of women into the US Supreme Court, or legal system as a whole, has not shown this.

This entire line of thinking rests on an assumption that Antonio Gramsci would have treated with deep skepticism.

Gramsci: Subaltern Groups Develop Distinct Moral Worldviews – But Institutions Neutralize Them

Gramsci argued that subordinate groups often develop alternative moral and cultural frameworks precisely because they live outside the dominant order and can judge it more clearly. These “subaltern conceptions of the world” arise from lived experience, exclusion and struggle. Gilligan’s ethic of care fits neatly into this category: it may not have been a “female” ethic so much as a “subaltern” one – the moral orientation of a group historically denied power which could see injustice more clearly.

Gramsci insisted that dominant institutions – courts, schools, legislatures, bureaucracies – are not neutral arenas. They are hegemonic apparatuses, designed to reproduce the worldview of the ruling class. When individuals from subordinate groups enter these institutions, they are pressured to adopt the dominant norms. 

Gramsci called this process transformismo: the ruling class selectively incorporates individuals from marginalized groups, neutralizing their potential for structural change. This is the key to understanding why Gilligan’s ethic of care disappears when women enter elite legal institutions.

The Supreme Court as a Gramscian Case Study

If Gilligan and Stanton were correct, the inclusion of women on the U.S. Supreme Court should have produced noticeable shifts in judicial philosophy, yet the record suggests otherwise. Female justices – Sandra Day O’Connor, Ruth Bader Ginsburg, Elena Kagan, Amy Coney Barrett, Ketanji Brown Jackson and Sotomayor herself – have not collectively advanced a radically different moral orientation toward justice. Their opinions vary widely, but none has introduced a sustained, structural critique of punishment, deterrence or the individual‑responsibility framework that dominates American law.

In other words, they have been thermometers, not thermostats. Their presence has not altered the underlying logic of the institution. Gramsci would say that the institution reshaped them more than they reshaped it. 

This raises several possibilities. Gilligan’s ethic of care was never a gender trait, it was a subaltern trait. Once women entered hegemonic institutions, their moral orientation converged with dominant norms. The justice system’s punitive logic is a hegemonic worldview that absorbs difference. Female judges do not transform justice because the system is designed to prevent transformation. This is transformismo in action: the absorption of difference into sameness.

The Justice System as a Hegemonic Apparatus

The American justice system is built on a rigid model of individual responsibility. Juries may not consider why a defendant committed a crime and motive is relevant only at sentencing. The system insists on impartiality, objectivity, and neutrality, ideals that often mask structural inequalities. Public defenders are overworked, plea deals dominate, and the prison population is disproportionately composed of men of color from impoverished neighborhoods.

This structure leaves no room at all for Gilligan’s ethic of care. It rewards adherence to precedent, not moral imagination or social reform. It treats crime as an isolated act by flawed individuals rather than as a social outcome of poverty, violence and racism. The institution tolerates no moral innovation based on identity and experience of injustice. 

Oppressed groups lose their moral or critical edge once integrated. The mechanism is clear: integration is absorption and when a marginalized group gains access to elite institutions, those institutions reshape the group’s worldview. The “ethic of care” Gilligan observed was not a timeless feminine trait, it was a product of exclusion. Once exclusion ends, the moral orientation dissolves. 

Gramsci would say: The ethic of care is a counter‑hegemonic moral stance and counter‑hegemonic stances arise from structural marginalization. When marginalization decreases, counter‑hegemonic stances weaken. Integration into hegemonic institutions transforms the moral psychology of the integrated group.

Sotomayor’s Trajectory and the Gramscian Trap

Sotomayor’s biography illustrates the Gramscian dynamic with painful clarity. She grew up in a poor Bronx neighborhood, attended elite schools and became a prosecutor in Manhattan – often targeting men of color from backgrounds similar to her own. Her quote suggests she believes identity shapes judgment, yet her career path reflects the constraints of the system she entered.

Gramsci would argue her subaltern origins gave her a distinct moral perspective, but her integration into elite institutions required adopting hegemonic norms. Her potential for counter‑hegemonic influence was neutralized through transformismo. Her trajectory is not necessarily hypocrisy, it is hegemony functioning exactly as Gramsci described.

The Gramscian Explanation for the Disappearance of the Ethic of Care

Gilligan’s work captured a moment when women, still marginalized, expressed a moral orientation shaped by their social position. The ethic of care allowed for questions such as: are social and economic factors in the USA breeding crime while we blame individuals for individual moral lapses? But as women entered elite institutions, that orientation did not reshape those institutions, the institutions reshaped them and underlying causes of crime became irrelevant.

The justice system remains fundamentally committed to punishment, deterrence and individual blame and not an examination of social and economic causes for crime. Female judges have not altered this logic because the system itself is designed to absorb individuals into its worldview, not to be transformed by them. Gramsci predicted this: subaltern moral frameworks dissolve when individuals are integrated into hegemonic structures.

A Gramscian reading would say that the justice system is not male-dominated, it is hegemonic. Its worldview was historically produced by a ruling class that happened to be male, but the gender is incidental. The system’s logic persists even when women enter because institutions reproduce ideology more powerfully than individuals can resist it.

This means Sotomayor’s prosecutorial career is not evidence of her “becoming male.” It is evidence of her becoming an organic intellectual of the dominant class, someone who now performs and legitimizes ruling‑class common sense.

Gilligan’s “ethic of care” versus the male “ethic of justice” becomes, in Gramscian terms, a contrast between subaltern moral reasoning and dominant moral reasoning. The ethic of care appears among women in Gilligan’s study not because of biology but because women, at that historical moment, occupied a semi‑subaltern position. Their moral reasoning was shaped by marginalization, not necessarily gender essence.

The concise takeaway is that Gramsci would say the justice system does not simply “reflect male values,” it reflects the worldview of the historically dominant class, and anyone who enters that system, male or female, gets absorbed into its hegemonic logic. Gendered moral differences cannot survive inside an institution whose purpose is to reproduce ruling‑class common sense.

Once women enter elite institutions…law schools, courts, prosecutorial offices…they are no longer positioned as subaltern. They are re‑socialized into the dominant moral framework. Gramsci would say they cease to speak in a “different voice” because the institution itself trains, disciplines and rewards only one voice.

The hope that gender alone could save the world, or even reform the justice system, was always too simple. Moral innovation does not come from identity alone, it comes from structural change, collective struggle and the willingness to question the foundations of institutions that claim neutrality while perpetuating inequality.

Gramsci would say this situation changes only when a new collective bloc builds a counter‑hegemony strong enough to reshape the common sense of justice itself. Individual women entering the courts cannot do this. A few “ethic of care” voices cannot do this. A moral insight cannot do this. Only a reorganized social force can do this.

Change requires a shift in the underlying cultural and political hegemony. That means that a new bloc of people must create a new moral common sense about crime, responsibility and the social causes of crime. That bloc must become strong enough to pressure institutions, reshape law and redefine what justice means. Only then can judges, male or female, act differently, because the institution itself will have been forced to adopt a new logic.

For Gramsci, institutions like the courts are not neutral and not reformable from the inside as they are built to reproduce the worldview of the dominant class. Anyone who enters them…women, men, people of color, the poor…gets absorbed into that worldview. So the question “why don’t female judges transform justice?” becomes irrelevant. They cannot transform it because the institution exists to prevent transformation.

Subaltern orientations do not become dominant by entering elite institutions…they become dominant only when the subaltern group organizes, builds cultural power and forces institutions to change. 

Without that, the ethic of care disappears the moment someone enters Yale Law School or the DA’s office. So the answer is simple to articulate but harder to implement: the justice system changes only when a counter‑hegemonic movement makes mercy, structural analysis and social reform part of our common sense.

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