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)

Wednesday, November 3, 2021

Senate Confirms First Openly LGBTQ Women to a Federal Appeals Court

ABA J, Senate Confirms First Openly LGBTQ Woman to a Federal Appeals Court

The U.S. Senate confirmed Vermont Supreme Court Justice Beth Robinson to the 2nd U.S. Circuit Court of Appeals at New York on Monday, making her the first openly LGBTQ woman to serve on a federal appeals court.

 

Robinson was one of two nominees confirmed to federal appeals courts, Law.com reports. The other is Toby Heytens, former Virginia solicitor general, confirmed to the 4th Circuit at Richmond, Virginia.

 

Robinson is a 1989 graduate of the University of Chicago Law School. She has served as an associate justice on Vermont’s top court since 2011. Before that, she was counsel to Vermont’s governor, a civil litigator at Langrock Sperry & Wool and an associate at Skadden, Arps, Slate, Meagher & Flom.

It is possible that the first gay woman federal appellate judge was actually Judge Florence Allen. Allen was the first woman appointed to a federal appellate court, nominated by FDR to the Sixth Circuit (Ohio) in 1932. The jury is still out on whether Allen was gay, with scholars and biographers split.  If so, Allen was not open about it.  The strongest evidence is that she lived in committed cohabitation partnerships (so-called Boston marriages) with one woman, Susan, and then after her early death, with another woman, Mary for the rest of her life. For more on Allen, see Tracy Thomas, The Jurisprudence of the First Woman Judge: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2020).

November 3, 2021 in Courts, Judges, LGBT, Women lawyers | Permalink | Comments (0)

Thursday, October 21, 2021

Recovering the Legal History of Women's Right to Hold Public Office

Elizabeth Katz, Sex, Suffrage, and State Constitutional Law: Women's Legal Right to Hold Public Office,  
Yale Journal of Law & Feminism, Forthcoming

Relying on extensive historical research, this Article is the first to examine how women advocated for the legal right to hold public office in state-level litigation, constitutional amendments, legislative lobbying, and other venues for more than a century. From the 1840s through the 1940s, women in many states were excluded from holding even mundane public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to hold posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the flames of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging these restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. Women in the West obtained public offices relatively early, in part because they were the first to secure suffrage. Women in the Northeast and South faced the most difficult hurdles because conservative state judiciaries construed constitutional silences as implying women’s exclusion from office. The Midwest emerged as the contested middle ground; although women could not vote in Midwestern states for most of the studied period, many courts nevertheless held that they were entitled to hold both appointed and elected offices.

Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding as an obvious or inevitable twin to suffrage. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these political rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.

October 21, 2021 in Constitutional, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Thursday, September 2, 2021

SCOTUS Denies Stay of Texas Fetal Heartbeat Abortion Ban

By a vote of 5-4, the US Supreme Court denied abortion providers' request to stay the operation of a new Texas law banning abortion after six weeks.  The split was Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett in the majority and Sotomayor, Breyer, Kagan, and Roberts in the dissent.

Here is the opinion:   Whole Women's Health v. Jackson

    The majority highlight the unique procedures established by the Texas law requiring private citizen enforcement.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention

In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in
no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

For a blog post on Justice Kavanaugh's prior thinking in a stay of an abortion case, somewhat following his assent to the majority here while also seeming to follow Roberts' approach, see Supreme Court Temporarily Block Louisiana Abortion Law Requiring Doctors Admitting Privileges

All dissenting Justices wrote separate opinions.  

    Roberts focused on the standards of stays and temporary injunctions and maintaining the status quo.

 I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

    Breyer disagreeing that the procedural posture is relevant, and focused on the imminent harm to the plaintiffs, one of the traditional factors in granting temporary relief:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district
attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison. 

    Sotomayor blatantly calls out the Court for its decision on the merits and procedurally.  

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent....

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of
the rights of women seeking abortions throughout Texas....

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry....

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.

    Kagan takes on the shadow docket and the shadowy state procedure:

The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to
carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence.

September 2, 2021 in Abortion, Constitutional, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, August 26, 2021

Viewing Justice Gorsuch's Opinion in the LGBT Decision in Bostock as Support for--not Against--Abortion Rights in the Upcoming Dobbs Case

Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).

Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling with rule of law concerns involving legal and social stability. In both of these respects, Bostock aligns with the controlling opinion in Planned Parenthood v. Casey, a decision that Justice Gorsuch, like other justices in Dobbs, might yet in principle reaffirm. After exploring some of Casey’s doctrinal implications and its example of judicial moderation, discussion turns to Casey’s often overlooked spiritual dimensions. Not only does Casey’s spiritual pluralism on the abortion right and its limits converge with important features of Bostock, but it also actively counsels a decision in Dobbs giving Casey and what it preserves of Roe a new lease on life as part of a larger effort to preserve the American public’s shared faith in a constitutional republic that everyone in Dobbs wishes to keep.

August 26, 2021 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, August 19, 2021

Women in Private International Law, as Legal Subjects and as Lawmakers

Mary Keyes, Women in Private International Law

There has been almost no consideration of the position of women in private international law. There is very little published research applying a feminist analysis to, or even considering the position of women in, private international law. This field gives almost no attention to the particular interests, positions and experiences of women as subjects of the law, or the contribution of women as makers of the law. In the common law, private international law was largely developed in the 19th century, by male judges who were strongly influenced by commentary written exclusively by men. This chapter establishes that the apparently gender-neutral nature of private international law conceals profoundly ingrained assumptions about gender, in which the masculine is represented as a rational and sophisticated businessman, and the feminine is represented as a legally incapable wife. It then considers the gendered dimension of private international law in international family law, referring in particular to the regulation of international child abduction, international family property agreements, and international commercial surrogacy. Each of these examples demonstrates the differential impact of the law on women, indicating the need for greater awareness of and attention to gender. It concludes that while there have been some advances recently, particularly in terms of increased representation of women in making and commenting on private international law, there remains a great need for further research into the position of women as legal subjects and law-makers in this field.

August 19, 2021 in International, Judges, Legal History, Theory | Permalink | Comments (0)

Wednesday, July 21, 2021

The Importance of Equality on the Bench to the Legitimacy of the Courts

Judith Resnik, Representing What: Gender, Race, Class, and the Struggle for the Identity and Legitimacy of Courts 

This symposium addresses the relationship of diversity and pluralism to the judiciary. The phrase “Equal Treatment Under Law” was carved in the stone above the steps of the U.S. Supreme Court building, which opened in 1935. At the time, many schools were segregated by race, dozens of laws barred women from full participation in economic and political life, and discrimination based on gender identity was commonplace. The justices who sat on the Court and almost all the lawyers who argued before them were white.

Today, the Supreme Court’s stone inscription has become its motto. That phrase is read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. Reducing the descriptive discrimination of prior eras, the judiciary now “looks” different than it did, and in that sense has come to be more “representative” by its partial reflection of the range of people appearing in courts.

Given judiciaries’ history of supporting legal discrimination, the sense that courts ought to belong to everyone is a major achievement. But to assess the impact of that shift requires analysis of three other major alterations in U.S. courts — the influx of a host of litigants newly entitled to pursue legal claims, the limited resources of many claimants, and the development of judiciaries’ institutional agenda, including supporting shifts away from public adjudication to more private forms of dispute resolution.

Research about diversification of judges has yet to look at the interaction among these changes. Much of the research has sought to tease out whether judges’ decisions in cases have changed in the wake of the entry of women judges. However, the “difference that difference makes” needs to be analyzed at institutional levels as well as by aggregating the decision-making of individuals. During the last century, judiciaries developed structural capacities to speak about the “administration of justice.” They gave meaning to this phrase through setting their own priorities, proposing new rules and legislation, developing education programs, and commissioning research and task forces on specific topics. Moreover, judiciaries honed their skills at lobbying for resources. As I detail, the entry of women and men of color into the legal profession affected these agendas. The affinity organizations they founded pressed courts to inquire into their own history and practices of bias and to respond through revising rules of ethics, doctrine, and practice.

Furthermore, a focus on a newly and partially diversified judiciary needs to be coupled with attending to other participants — disputants, lawyers, and the processes that courts use. That fuller picture makes plain that because so many people in courts have limited means, the aspiration that disputants have participatory participation remains illusive. The “justice gap” has become a shorthand for the point that courts and the social order in which they sit have yet to take steps sufficient to help under-resourced litigants.

Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed fines and fees as sources of income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions, levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality.

In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public, which has a place as of right in courts. Through doctrine and rules, U.S. courts have shifted their own practices and mandated enforcement of clauses imposed on consumers and employers that push them out of court and out of class or joint actions.

In sum, the new faces on the bench ought not obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.

July 21, 2021 in Courts, Gender, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, July 13, 2021

Ruth Bader Ginsburg's Copyright Jurisprudence

Ryan Vacca & Ann Bartow, Ruth Bader Ginsburg’s Copyright Jurisprudence,  22 Nevada L.J. (forthcoming 2022)

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.

July 13, 2021 in Courts, Judges, Science, SCOTUS | Permalink | Comments (0)