Tuesday, September 27, 2016

Why are Feminist Judgments Necessary?

Kathy Stanchi, Why Are Feminist Judgments Necessary?

Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the new book I edited with Linda Berger and Bridget Crawford, imagines what 25 key Supreme Court cases on gender might have looked like had the Justices used feminist reasoning to decide the cases. In essence,Feminist Judgments imagines a Supreme Court diverse in multiple ways – not just race, gender, socioeconomic class and sexual orientation, but also philosophy, experience and perspective. The United States Supreme Court has been remarkably homogeneous in all these ways throughout history.

Would Feminist Judgments have been necessary as a visionary project had we had an ERA? It is unclear. Perhaps the passage of the ERA would have changed the composition of the Court – but that seems unlikely. And when I ponder what the ERA would have meant for American anti-discrimination law in the hands of an entirely conservative, white, economically privileged male Supreme Court, questions linger. After all, Geduldig’s holding was based on the famous distinction between women and “pregnant persons.” If it isn’t sex discrimination to treat “pregnant persons” unequally, would an ERA have really made a difference? And Roe and its progeny might have fared no better. Feminist advocates have been largely unsuccessful in convincing the Supreme Court that anti-abortion laws are an equal protection violation based on sex. If “pregnant persons” are a different category from women, aren’t “persons who get abortions” a similarly limited category?

One mission of Feminist Judgments: Rewritten Opinions of the United States Supreme Court is to show that diversity – of sex, race, socioeconomic class, sexual orientation, among others – matters in our system of law. ERA or no ERA, the composition of the Court is critical, because the Justices are the last interpretive word on what the Constitutional text means. If the Justices saw the ERA as limited, or not covering pregnancy or abortion, all the grand words of equality would not have made a real difference in women’s lives. So, in some ways, Phyllis Schlafly made Feminist Judgments necessary, but we might have needed it anyway.

The related US Feminist Judgments Conference, Rewriting the Law, Writing the Future is October 20 & 21.  Register here.

https://lawprofessors.typepad.com/gender_law/2016/09/why-are-feminist-judgments-necessary.html

Books, Conferences | Permalink

Comments

Post a comment