Monday, September 19, 2022

Balkin on "Abortion and Partisan Entrenchment"

Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:  

In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.

Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.

Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.

Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.

Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.

Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.

Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.

September 19, 2022 in Abortion, Constitutional, Courts, Judges, Legal History | Permalink | Comments (0)

Thursday, September 8, 2022

Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment

Julie Suk, Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment, 110 Georgetown L.J. 1391 (2022)

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG publicly expressed doubts about the viability of the ERA, as it was being disputed in Congress and in the courts. This Article unpacks RBG’s ambivalent stance toward the ERA, tracing it to her understanding of the process of constitutional change toward greater inclusion, located in her legal scholarship of the 1970s. As a scholar, RBG focused not only on sex discrimination but also on legal procedure. She was keenly aware that the procedural paths taken toward important socio-legal changes, including women’s equal citizenship, would shape their potential to endure as law.

This Article puts the spotlight on RBG’s often-neglected writings as a scholar before her judicial career. RBG’s transformative vision of constitutional gender equality had an institutional and procedural dimension that accompanied its ambitious substantive ideals. A modern constitutional democracy would fully include women in the rights and responsibilities of citizenship and power, by eliminating gender stereotypes from the law and by implementing public policies to enable the participation of people of all genders. Legislatures, rather than courts, are best equipped to complete this project. To legitimize such large-scale constitutional change, RBG viewed Congress as the appropriate institutional driver of the constitutional amendment process. Accordingly, Congress had plenary power over the procedural incidents of constitutional amendments such as the ERA, including ratification time limits and rescissions. RBG’s legislative constitutionalism on both the substance and procedure of the ERA point to cautiously viable paths forward for both the resurgent ERA and future amendments aiming to secure the inclusion of previously disempowered people in our democracy.

September 8, 2022 in Constitutional, Judges, Legal History, Legislation | Permalink | Comments (0)

Monday, July 25, 2022

The Precarity of SCOTUS's LGBTQ Jurisprudence

Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, 13 ConLawNOW 75 (2022)

This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ community. The essay next asks and answers the question: What will a post-Justice Kennedy Court mean for LGBTQ people and the 25 years of constitutional progress reflected in his Queer Canon? Through a comparative analysis of the Court’s two post-Justice Kennedy decisions, Bostock v. Clayton County and Fulton v. City of Philadelphia, Justice Kennedy’s Queer Canon, and his opinion in Masterpiece Cakeshop, this essay contends that the progress made during the Justice Kennedy era is a fragile progress, one that is under threat by the current Court.

July 25, 2022 in Constitutional, Family, Judges, LGBT, SCOTUS | Permalink | Comments (0)

Wednesday, June 29, 2022

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

June 29, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 7, 2022

Feminist Judging: Theories and Practices

Kristin Kalsem, Feminist Judging: Theories and Practices, in Oxford Handbook of Feminism and Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds.) (Oxford University Press, 2022 Forthcoming)

This chapter begins by examining the original liberal feminist goal of increasing the number of women judges to attain equal gender representation. Part I canvases multiple reasons why greater gender diversity on the bench is desirable, from its symbolic value to its potential for reducing and counteracting implicit bias of legal actors. It also charts how scholarship has grown to encompass “outsider” judges, marked by race, ethnicity, and other marginalized identities, with particular attention to the experiences of female judges of color.

Part II then turns to analyzing scholarship that focuses on the ideal of “feminist judging.” It recounts how, borrowing from cultural feminism, feminist scholars have applied the concept of an “ethic of care” and discussed the possibilities and impacts of empathetic judging. Lastly, it explores how feminist judging takes into consideration the racial and gender dimensions of controversies and brings context to the forefront, employing an intersectional and social justice lens.

Moving from theory to practice, Part III discusses two recent scholarly projects that integrate feminist judging into the real-world practices of judges. One such project applies the methods of legal participatory action research (“legal PAR”) to design and implement a state wide judicial training on best practices in intimate partner abuse cases. Using a community-based research and problem-solving paradigm, legal PAR effectuates a bottom-up approach to law and policymaking. The second project – the Feminist Judgments project -- critiques the idea of judicial objectivity and reimagines landmark legal cases through the rewriting of judicial opinions from feminist perspectives. Inspired in the United States by similar projects in Canada and Great Britain, it has grown from a volume of twenty-five rewritten U.S. Supreme Court opinions to multiple volumes devoted to specific areas of law like employment discrimination and reproductive justice.

Part IV concludes with considerations for future feminist agendas in reaching the end goal of achieving social justice in the process and outcomes of judging. Throughout, this chapter is guided by the belief that what judges decide, as well as the process through which they reason and explain their decisions, matters.

June 7, 2022 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Thursday, June 2, 2022

Study of Gender-Based Judging on Swedish Supreme Court Shows Little Effect of Gender

Johan Lindholm, Mattias Derlen & Daniel Naurin, 'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court 

From the abstract:

In line with gender-based stereotypes and ideals of female agreeability and cooperativeness, research has shown that women tend to cooperate more and compete less than men (the competitiveness theory). The article empirically studies whether Swedish Supreme Court Justices practice of writing dissenting opinions follows the gender-based patterns that can be expected from the competitiveness theory. Issuing dissenting opinions is a well-established practice on the Supreme Court, but it is also a public form of collegial disagreement that is potentially especially socially costly for female Justices. We therefore hypothesize that female Justices avoid writing dissenting opinions, particularly alone, and help foster agreement on panels compared to male Justices. These hypotheses are not supported by the data and the behavior of Swedish Supreme Court Justices thus does not follow the competitiveness theory. We propose some explanations for this result, which runs counter to previous research, and point to possible future research.

The conclusion from the introduction:

Generally speaking, however, empirical evidence of an effect of gender on merit-based voting in previous research must be characterized as relatively weak. As observed by Leonard and Ross (2020, 278), “anyone hoping to find convincing evidence of consistent gender differences in decisions across a broad range of issues would be sorely disappointed by the extant literature”. The lack of more clear and strong empirical evidence of gender-based differences in judicial behavior is commonly explained by what is often characterized as the organizational theory. According to this theory, gender-based differences in judicial behavior are tempered by professional and organizational factors. While there is room for different legal reasoning, judges are restricted by the relatively narrow scope of what, in the mind of judges and other lawyers, constitutes acceptable legal reasoning and interpretations of the law, and individuals that fail to show an ability to act in accordance with and within these limits will have a difficult time becoming judges. In this way, the characteristics of the law in combination with the process involved in becoming a judge – a process that starts with an individual graduating from law school and ends with a judicial appointment – will both select individuals that behave in a particular way and shape those individuals’ behavior to conform with what the profession considers acceptable and appropriate behavior. Moreover, an argument can be made that the pressure to conform to existing (male-based) norms and to prove their competence is particularly strong on women who come in as ‘outsiders’ to judicial institutions that have traditionally been a male dominated environment (Davis, Haire, and Songer 1993, 133; see also Boyd, Epstein, and Martin 2010, 392; Boyd 2016, 790; Sisk, Heise, and Morriss 1998, 1453–1454). If
correct, the organizational theory could explain why previous research has not been able to show a strong and consistent effect of gender on merits voting.

June 2, 2022 in Courts, Gender, International, Judges | Permalink | Comments (0)

Thursday, May 12, 2022

More Reliance on Witch Trial-esque Precedent in the Draft Dobbs Opinion and the Case of Eleanor Beare

In the draft Dobbs opinion (p.17), Justice Alito writing for the majority to overturn Roe v. Wade and Casey, features as precedent the 1732 English case of Eleanor Beare.  He uses this case to bolster his point that abortion was a crime "dating all the way back to the 13th century."   

Alito says:

In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry." For that crime and another "misdemeanor" Beare was sentenced to two days in the pillory and three years' imprisonment.

The authority he cites to is 2 Gentleman's Magazine 931 (Aug. 1732).  The citation and case are in Dellapenna, Dispelling the Myths of Abortion, a book heavily relied on as the key authority for Alito's history.  Dellapenna is a retired law professor with an expertise in water rights turned anti-abortion advocate.  Alito excoriates the Roe majority for its "unsupportable" reliance on the work of Cyril Means, a pro-choice supporter who Alito says provided work "the guise of impartial scholarship while advancing the proper ideological goals."  Op. at 27.  Yet Alito does precisely that here, just selecting an advocate from the anti-abortion side.

Online sources provide a a summary of the trial and what appears to be a transcript of The Tryal of Eleanor Beare of Derby, England.  Authenticity is certainly a question as to these sources, but they match quotes used by Alito in his opinion.  The trial summary is from The Newgate Calendar, a popular literary book of the 18th and 19th century editorializing and moralizing about legal cases.  

Like the Salem witch trials, the proceedings including hearsay, finger pointing by neighbors and former friends, and lack of counsel for the defendant.  Eleanor, apparently a midwife and the wife of a "labourer," is asked by three clients to assist in an abortion, and in another case healing a wife who took poison from another.  The first charge of homicide seems to carry the case and sentence, as Beare is alleged to have helped a man she met at a bar poison the wife he hated.  No allegation of pregnancy or abortion in that charge.  Beare, cross-examining herself, says wasn't I just helping you save your wife whom you had poisoned with poison you got from a Mary Tecmans?   

Eleanor is punished for these misdemeanors by sentence of standing in the pillory in the marketplace--the stockade of arms and head in the town square--where members of the community pummeled her with eggs, turnips, stones, "and any other filth they could collect." Annals of Crime in the Midland Circuit, or Biographies  of Noted Criminals (1859).  "She knelt down, and begged mercy of the still outrageous mob."  Id.  "Stones were thrown, which wounded her to such a degree, that her blood streamed down the pillory." Id.  This "somewhat appeased the resentment" of the crowd, and she was returned to jail. Id.

May 12, 2022 in Abortion, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Relying on the Precedent of Witch Trials in the Draft Dobbs Abortion Opinion

Justice Alito resurrects the ghosts of witch trials past in the draft opinion in Dobbs.  He relies on the authority of Lord Hale, infamous English jurist who hanged women as witches, created the marital rape exception, and crafted the jury instruction to warn against believing women in rape allegations.  He also features the Salem-esque trial of Eleanor Beare and her punishment by pummeling with eggs and turnips in the town square.  More on Eleanor in part 2 of this post.

Ken Armstrong, Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Views on Rape

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

 

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

 

Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. *** 

 

Hale became Lord Chief Justice of England in 1671.***

 

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

 

Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

 

Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.

 

Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part.***

 

In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

 

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?

 

Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape.***

 

Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.

 

In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.

 

What’s more, Hale instructed the jurors that witches were real. 

 

May 12, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, April 27, 2022

Gendered Judging and Benevolent Sexism

Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.

In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.2

As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes.

April 27, 2022 in Courts, Gender, Judges | Permalink | Comments (0)

Monday, March 28, 2022

Shanta Trivedi on "Supreme Mom Guilt" in Ms. Magazine

Shanta Trivedi writes for Ms. Magazine The Supreme Mom Guilt is Real: Judge Ketanji Brown Jackson and Motherhood. 

The struggles of employed motherhood in a society that is not built to support mothers (formal wage-earners or stay-at-home moms) has been documented time and again. But, in many ways, what Jackson was expressing is unique to Black women. Black women have historically been more likely to be a part of the workforce than their white counterparts. Black women and other women are color are also more likely to do work that supports white women’s ability to work outside the home, such as caregiving and housecleaning. And, for many Black women, they are the “only” of both their gender and race at work, putting even more pressure on them in already complicated work settings where they regularly face microaggressions, harassment or blatant misogynoir—the toxic, combined discrimination against Black females.

* * *

All mothers feel pressure to be perfect and the judgment that they face is real, but Black mothers face a microscope unlike no other, particularly when compared to the upper-middle class white version of Pinterest and Etsy-fueled parenting. In the midst of an exercise designed to scrutinize her and her life, despite her perfect resume, she highlighted her perceived imperfection as a parent. But perhaps there is no better evidence to the contrary than from her own children. 

March 28, 2022 in Courts, Judges, Women lawyers, Work/life | Permalink | Comments (0)

Wednesday, March 23, 2022

Book, Why Women in the Judiciary Really Matter

Sally Kenney, Book, Gender and Justice: Why Women in the Judiciary Really Matter 

[T]his book explores different questions in different North American and European geographical jurisdictions and courts, demonstrating the value of a gender analysis of courts, judges, law, institutions, organizations, and, ultimately, politics. Gender and Justice argues empirically for both more women and more feminists on the bench, while demonstrating that achieving these two aims are independent projects.

"In this impressive work of seminal scholarship, Professor Kenney documents and articulates a persuasive case for the value a gender analysis of legal systems and decisions, as well as there needing more politically and judicially astute women appointed to the bench. – Library Bookwatch, Midwest Book Review

March 23, 2022 in Books, Courts, Judges, Women lawyers | Permalink | Comments (0)

The Exclusion of Women from the Judicial Process

Susan Tolchin, The Exclusion of Women from the Judicial Process, Signs J. (1977)

Amid the areas from which women are excluded one stands out, neglected by scholars, public officials, representatives of women's groups and the national media: the representation of women in the judicial system. Only when Supreme Court vacancies open is there public dialogue on the feasibility of appointing women. Then the tone of debate is too often one of frivolity or outrage. ***

 

The key to judicial selection lies in the political system. The exclusion of women from the bench is therefore a reflection of women's lack of political power, which has enabled both major political parties to ignore them. The power to select judges rests with selected elites. Whom they choose as judges depends on a variety of factors, not the least of which are their political and personal obligations.3 Bar association elites, for example, often predominate in merit-selection plans (such as the Missouri Plan) since they overwhelm the laymen on the selection panels, while party leaders tend to dominate the election process. Since judgeships are still regarded as relatively unimportant by the public at large, party leaders who slate nominees for judicial office wield greater control over judgeships than over offices which attract more public attention.

 

On the federal level, the American Bar Association exercises an extraordinary amount of influence over judicial appointments. The composition of the officers and board of governors of the ABA may best reveal why women occupy less than 2 percent of all federal judgeships. Of the seven officers and twenty-two members of the board of governors, not one is a woman.

My own work on Florence Allen, the first woman appointed to a federal appellate court (Sixth Circuit, 1934 by FDR), bears out this idea and history.  See Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen, 27 W&M J. Race, Gender & Soc. Justice 293 (2021). 

March 23, 2022 in Judges, Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, March 8, 2022

"Ruined": An analysis of judicial language used in sentencing rape and sexual assault defendants

"Ruined"

Maybell Romero

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

March 8, 2022 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Thursday, February 17, 2022

New Book: "Civil Rights Queen: Constance Baker Motley" -- the First Black Woman Appointed to the Federal Judiciary

New Book, Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

The first major biography of one of our most influential judges—an activist lawyer who became the first Black woman appointed to the federal judiciarythat provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century.

“A must read for anyone who dares to believe that equal justice under the law is possible and is in search of a model for how to make it a reality.” —Anita Hill

Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP's Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary.
    
Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions--how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.

February 17, 2022 in Books, Courts, Judges, Legal History | Permalink | Comments (0)

Thursday, February 3, 2022

Explaining Justice Ginsburg's Divergence from Strict Scrutiny in her Decision in US v. Virginia

Earl Maltz, The Road to United States v. Virginia: Ruth Bader Ginsburg and the Battle Over Strict Scrutiny, Rutgers Women's Rights L. Reporter (forthcoming)  

Throughout her long career as both a litigator and a member of the Supreme Court, Ruth Bader Ginsburg was a champion of women’s rights who insisted that the Constitution outlawed legal distinctions that were based on sexist stereotypes. However, in one important respect, the arguments that Ginsburg made as a litigator in the 1970s differed significantly from those that were embodied in her signature opinion in United States v. Virginia. During the 1970s, Ginsburg often contended that laws that treated women differently than men should be subject to strict scrutiny because sex discrimination was analogous to race discrimination. By contrast, in Virginia, although she spoke for the Court in holding that women could not be excluded from Virginia Military Institute, her opinion emphasized the differences between distinctions based on race and distinctions based on sex for constitutional purposes. This article is the first to focus on this aspect of Ginsburg’s opinion in Virginia and to provide an explanation for her change in course.

February 3, 2022 in Constitutional, Education, Judges, SCOTUS | Permalink | Comments (0)

Study Shows that Women and Non-White Judges are Substantially More Likely to Rule in Favor of Plaintiff Reaching Discovery

Stephen Burbank & Sean Farhang, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, U Penn. L. Rev. (forthcoming

 We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. ***

In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample.

The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims.

Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery.

Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.

February 3, 2022 in Courts, Gender, Judges, Race | Permalink | Comments (0)

Why Biden's Commitment to a Black Woman Supreme Court Justice Was Necessary

Why President Biden's Commitment to a Black Woman Supreme Court Justice Was Necessary

Supreme Court Justice Stephen Breyer’s retirement announcement is not even one week old, yet Republican senators and prominent conservatives are already attacking Biden’s unnamed nominee. Instead of celebrating the president’s historic commitment to picking the nation’s first Black woman justice, conservatives have already made up their minds that Biden’s choice of a Black woman makes her automatically unqualified.***

The answer has little to do with Black women’s qualifications to serve on the highest court in the land. For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949. The first Black woman federal judge was only appointed in 1966. And by 2020, there had still only ever been eight Black women to serve on the courts of appeals—a traditional prerequisite for a seat on the Supreme Court.

That systematic exclusion of Black women lawyers from the judiciary has clearly conditioned many conservatives to believe that there are no Black women good enough to be a Supreme Court justice. The nation is about to learn just how wrong they are.

 

February 3, 2022 in Judges, Race, SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, November 22, 2021

Rutgers Law School Symposium on Justice Ginsburg's Legacy

The Rutgers Women's Rights Law Reporter is hosting its Winter 2021 Symposium on December 2, 2021 from 3:00 - 5:00. The program is titled Feminism in the Law: An Exploration of Justice Ginsburg's Legacy.  The program is both in-person and virtual. Here is the link to register:  https://law.rutgers.edu/WRLR-Symposium-RBG-Hall-Dedication. Here is a list of speakers: 

Opening Remarks:

  • Professor Jane Ginsburg - Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School. Daughter of Ruth Bader Ginsburg.
  • Director Rachel Wainer Apter - Director of the New Jersey Division on Civil Rights. Associate Justice nominee for the Supreme Court of New Jersey.

Featured Speakers:

  • Reva Siegel - Nicholas deB. Katzenbach Professor of Law at Yale Law School
  • Jhuma Sen - Associate Professor at Jindal Global Law School and Assistant Director, Centre for Human Rights Studies at O.P. Jindal Global University
  • Chase Strangio - Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project
  • Chalana Scales-Ferguson - Director of Academic Success at the University of Missouri - Columbia School of Law
  • Earl Maltz - Distinguished Professor at Rutgers Law School, Camden, New Jersey

Moderator: Dean Suzanne Kim - Associate Dean of Academic Research Centers, Professor of Law, and Judge Denny Chin Scholar at Rutgers Law School.

November 22, 2021 in Conferences, Courts, Judges | Permalink | Comments (0)

Tuesday, November 16, 2021

An Excerpt from Anita Hill's “Believing: Our Thirty-Year Journey to End Gender Violence”

“This Is Not That Bad” An Excerpt from Anita Hill's “Believing: Our Thirty-Year Journey to End Gender Violence”

Excerpted from Believing: Our Thirty-Year Journey to End Gender Violence by Anita Hill, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2021 by Anita Hill.

“Not that bad” reflects the attitude that survivors often internalize; that our abusers’ behaviors “were not the worst thing that ever happened to us” serves as a coping mechanism that is problematic. In her anthology Not That Bad: Dispatches from Rape Culture, the writer, public intellectual, and cultural critic Roxane Gay writes with painful eloquence about how for a long time she minimized the gang rape she survived as a teenager. And the heartrending stories in her book from other women who experienced gender‑based violence include scores who remained friendly or intimate with harassers and abusers. Not That Bad poignantly reminds us of the way we deny our pain to keep living. Convincing herself that her experience was not as bad as others’ was Gay’s way of managing her trauma “instead of allowing the magnitude of it to destroy” her. But as Gay points out, this defense mechanism comes at a cost. In her case, as with countless other victims, it numbed her to the pain of her other bad experiences, as well as the trauma others suffered. “The surface of my empathy became callous,” she writes.

Looking back at how the Senate exchange went, I wonder, was Specter gaslighting me and the public, or was he mansplaining? I’ve concluded that he was doing both. If gaslighting was his intent, he was manipulating me (and the public) into questioning the reality and my perception of my own experiences. Given his condescending tone, Specter was also mansplaining—trying to convince us all that he knows better than me how a woman experiences sexual harassment. Mansplaining was the technique, and gaslighting was the goal. Both are forms of denial employed to discount claims of abuse, and they deserve to be called out because they prevent women from being heard and believed when they testify about abuse. Both tactics foster self‑doubt, coaxing victims into thinking that coming forward is pointless, that no one will care.

. . .

How do three simple words, “not that bad,” become so powerful? They gain steam when they are absorbed in all of our social systems, permeating survivors’ minds. The hold that those three little words have comes from hearing them repeated multiple times over the course of a lifetime. The exact language may change, as do the circumstances, but the message that your hurt is of no consequence, so back off, remains the same. Schools deny and neglect gender violence, undermining survivors’ confidence and secure identity even as small children. The same attitude exists in the workplace, which can lead survivors to feel self‑doubt. Individual denial breeds institutional denial, and survivors pay the price. Specter’s words were aimed at persuading me to doubt my significance. His strategy was to convince other potential witnesses and the American public that the stories survivors seek to share and the people who want to hear them are of no importance. Specter’s belittlement of my pain had one clear beneficiary, Clarence Thomas. To abusers, harassers, and rapists, “not so bad” is an absolution and, in Thomas’s case, an assurance that the Senate confirmation process would protect him. To survivors, these words are like a dagger.

November 16, 2021 in Courts, Gender, Judges, Legal History, SCOTUS, Violence Against Women, Workplace | Permalink | Comments (0)