The Roberts Court's Jurisprudence of Masculinity

Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 (2023).

Focusing on Dobbs, New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.

Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation.

The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation