Wednesday, November 15, 2017
President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.
So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.
The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.
Trump is anything but shy about his plans, calling his imprint on the courts an “untold story” of his presidency.
“Nobody wants to talk about it,” he says. “But when you think of it ... that has consequences 40 years out.” He predicted at a recent Cabinet meeting, “A big percentage of the court will be changed by this administration over a very short period of time.”
Advocates for putting more women and racial minorities on the bench argue that courts that more closely reflect the demographics of the population ensure a broader range of viewpoints and inspire greater confidence in judicial rulings.
Wednesday, November 8, 2017
This paper examines the demographics of federal district court judges in the 10th Circuit. Consistent with the glass-ceiling effect literature in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that minority judges are over-represented in the Circuit. The paper next explores the relationship between under-representation, over-representation and discrimination. Under-representation that cannot be explained in terms of merit criteria or informed opting out, such as the under-representation of women on the 10th Circuit, strongly suggests the lingering effects of past exclusion and discrimination, as well as the current effects of implicit bias. As demonstrated by the over-representation of minority judges, the political commission process can break through the gender glass-ceiling by over-representing qualified women judges in the short run until their overall numbers better reflect equality.
Friday, November 3, 2017
Claire L'Heureux-Dubé: A Life by Constance Backhouse
From the publisher:
Both lionized and vilified, Claire L’Heureux-Dubé has shaped the Canadian legal landscape – and in particular its highest court. The second woman appointed to the Supreme Court, and the first Québécoise, she was known as “the great dissenter,” making judgments that were applauded and criticized in turn.
Who was this energetic, risk-taking woman? L’Heureux-Dubé stands out as one of the most dynamic and controversial judges on a controversial court. Did she consciously position herself for success in a discriminatory milieu, or was she oblivious to power?
L’Heureux-Dubé anchored her innovative legal approach to cases in their social, economic, and political context. Constance Backhouse employs a similar tactic. Rather than focusing exclusively on jurisprudential legacy, she explores the rich sociopolitical and cultural setting in which L’Heureux-Dubé’s career unfolded, while also considering her personal life.
This compelling biography covers aspects of legal history that have never been so fully investigated. Changing gender norms are traced through the experience of a francophone woman within the male-dominated Quebec legal profession – and within the primarily anglophone world of the Supreme Court. Claire L’Heureux-Dubé enhances our understanding of the Canadian judiciary, the creation of law, the Quebec socio-legal environment, and the nation’s top court.
Tuesday, October 17, 2017
Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts
Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.
From the Intro:
The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).
Thursday, October 12, 2017
Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).
Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.
According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * *
In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.
Friday, October 6, 2017
Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.
Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.
We need both of those seats filled by women.
Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.
Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.
We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.
Senators, you didn’t cause this problem, but it is a problem you can fix.
Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.
And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.
President Obama nominated Rebecca Haywood last year, who would have been the first black woman to serve on the Third Circuit.
Wednesday, July 5, 2017
Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)
Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.
Wednesday, June 28, 2017
Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen. Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922). So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her. Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point.
As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges. I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away. My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role.
Tuesday, May 30, 2017
1. Do nude pictures of parents help judges decide who should get custody?
2. A silly question?
3. Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?
4. And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
5. If the objective was to humiliate the mother, undoubtedly the father succeeded
6. But how does humiliation help in family court?
7. How does irrelevant and scandalous information help a judge determine the best interests of the child?
8. More importantly -- from the child’s perspective -- what is the long-term impact of this needlessly hurtful approach to litigation?
12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:
Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
Intimidating and threatening behaviour often becomes self-evident in texts.
A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.
13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.
14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.
15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.
29g. The Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother.
32d. All of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past.
[h/t Sonia Lawrence]
Tuesday, May 2, 2017
Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)
The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.
Thursday, April 27, 2017
Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.
I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.
I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.
When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.
Friday, March 24, 2017
A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.
Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.
Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.
There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.
In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”
A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.
In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.
For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016).
Tuesday, March 21, 2017
Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)
Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***
Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.
California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.”
In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.
Tuesday, February 21, 2017
Judge Nancy Gertner, Keynote Speaker, Univ. of Baltimore 9th Feminist Legal Theory Conference (Mar. 2016)
I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge.
Monday, February 13, 2017
Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments
Abstract:Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.
This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.
Tuesday, January 17, 2017
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Friday, January 6, 2017
The West Virginia Supreme Court will have a female majority for the first time when Beth Walker takes the bench next week.
Walker will join Justices Margaret Workman and Robin Davis in making West Virginia one of 11 top courts that will have a majority of justices who are women in 2017.
Other states with a female majority are Arkansas, California, Maryland, Massachusetts, Minnesota, New Mexico, New York, Tennessee, Washington and Wisconsin.
Thursday, July 7, 2016
Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)
In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.
Thursday, March 17, 2016
Time will tell, but his moderate record and service under Justice Brennan speak volumes about his ability to think objectively, which will almost certainly help in the way of making strides forward for women.
The ninth Supreme Court justice could determine the fate of reproductive rights for millions of American women -- but Merrick Garland, President Barack Obama's nominee to fill the vacancy on the court, has not specified where he stands on abortion or whether he would uphold the decision made in the landmark abortion rights case Roe v. Wade.
Garland, a relatively moderate federal appeals judge in Washington, D.C., has never decided a case that has clarified his views on the subject. As USA Today pointed out on Wednesday, "During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court's largely administrative docket has left him without known positions on issues such as abortion or the death penalty."
Yet nobody seems to know what Judge Garland thinks about abortion. He won’t have a say in the current abortion case, but his position could be important for future abortion rulings.
Demographically, it seems likely that Garland is probably pro-choice: he’s not super-conservative, he’s Jewish, and he’s the father of two daughters (and Judges with daughters are more likely to rule in favor of women’s rights). But nobody knows for sure.
“Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.
“When, however, Judge Garland participated in a divided ruling, it was generally in favor of the plaintiff.
A search of Westlaw shows that most commentary by and on Judge Garland in the legal literature is on administrative law, as would be expected given the DC Circuit's caseload, and antitrust law (from his practice days).
Monday, February 15, 2016
What can be said about Scalia’s legacy to women and the law? Well, he has generally voted against cases implicating women’s rights for the last twenty-five years.
Scalia (in)famously said in an in an interview in 2011: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
Against class actions for sex discrimination Wal-mart v. Dukes, 564 U.S. ___ (2011) (Scalia, J., majority opinion)
Family Medical Leave Act Nevada v. Hibbs, 538 U.S. 721 (2003) (Rehnquist, J., majority opinion)
Against state worker remedies for FMLA self health-care provision Coleman v. Court of Appeals of Maryland, 566 U.S. ___ (2012) (Scalia, J., concurring)
Against pregnancy accommodations Young v. UPS, 575 U.S. ___ (2015)
Against retaliation claims Title IX Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)
Education United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting)
Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were--as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.
Against civil remedy of the federal Violence Against Women Act United States v. Morrison, 529 U.S. 598 (2000)
Against suit to enforce police enforcement of protection orders Castle Rock v. Gonzales, 545 U.S. 748 (2005) (Scalia, J., majority)
Against abortion protest buffer zones McCullen v. Coakley, 573 U.S. ___ (2014); Hill v. Colorado, 530 U.S. 703 (2000) (Scalia, J., dissenting); Madsen v. Women's Health Center, 512 US 753 (1994) (Rehnquist, J., majority)
For reasonable search of pregnant patients by hospital drug test for criminal prosecution Ferguson v. Charleston, 532 U.S. 67 (2001) (Scalia, J., dissenting)
Against the healthcare contraceptive mandate Burwell v. Hobby Lobby, 573 U.S. ___ (2014)
The few cases in which Scalia voted in support of the decision for women’s rights were unanimous decisions or otherwise earlier in his SCOTUS career, statutory, and often accompanied by his own concurring reservations.
Title IX private cause of action and remedies Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992) (“too late in the day” to hold otherwise) (Scalia, J., concurring)
Harris v. Forklift Systems, 510 U.S. 17 (1993) (Scalia, J., concurring) (“I know of no alternative to the course the Court today has taken.”
Front-pay hostile environment claims Pollard v. E.I. Dupont, 532 US 843 (2001) (unanimous decision)
Constructive Discharge PA State Police v. Suders, 542 U.S. 129 (2004)
Retaliatory discrimination Burlington v. White, 548 U.S. 53 (2006) (unanimous)
Pregnancy Discrimination Act prohibits workplace fetal protection laws UAW v. Johnson Controls, 499 U.S. 187 (1991) (Scalia, J., concurring)
Punitive damages employment discrimination Kolstad v. American Dental Assoc., 527 U.S. 526 (1999)
Direct evidence in mixed-motive case not necessary Desert Palace v. Costa, 539 U.S. 90 (2003) (unanimous decision)
Davis v. Washington, 547 U.S. 813 (2006) (Scalia, J., majority opinion) upholding a 911 call in a domestic violence case against Sixth Amendment challenge (unanimous decision)