Monday, November 22, 2021
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:
- 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.
- 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.
Tuesday, November 16, 2021
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.
Wednesday, November 3, 2021
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).
Thursday, October 21, 2021
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.
Thursday, September 2, 2021
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.
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.
Thursday, August 19, 2021
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.
Wednesday, July 21, 2021
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.
Tuesday, July 13, 2021
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.
Monday, July 12, 2021
Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.
However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.
Wednesday, June 30, 2021
Study Shows Benevolent Sexism in Judges in More Favorable Decisions for Women in Child Custody Relocation and Criminal Sentencing Cases
Jeffrey Rachlinski & Judge Andrew Wistrich, Benevolent Sexism in Judges, 58 San Diego L. Rev. 101 (2021)
Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.
Tuesday, June 15, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.
The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” Sessions v. Morales-Santana (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were “excluded from combat” roles and hence “would not be needed in the event of a draft.”
The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets. As of 2015, there are no longer any positions in the United States Armed Forces closed to women. Petitioners ask the Court to overrule Rostker in light of these developments.
Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.”
On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the [NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorporated into the next national defense bill.”
It remains to be seen, of course, whether Congress will end gender-based registration under the Military SelectiveService Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.
Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***
On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.
That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.
In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.
Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.
So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.
That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.
Friday, June 4, 2021
Renee Knake Jefferson, Judicial Ethics in the #MeToo World, 89 Fordham L. Rev. 1197 (2021)
This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report such behavior. But many argue the reforms do not go far enough. Congress, in the wake of media outcries, held hearings in early 2020. The judiciary’s tepid response holds consequences not only for the judges and the survivors of sexual misconduct but also for the legal profession as a whole. Leaving meaningful #MeToo remedies to journalists and lawmakers threatens judicial independence; it sets a precedent that could influence further intervention into other areas of professional conduct governance that is traditionally reserved for the courts. After offering additional reforms for addressing sexual misconduct in the judiciary, this Article concludes by reflecting on lessons that can be drawn about the judicial role in professional ethics regulation more broadly.
Tuesday, February 9, 2021
Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice,48 Capital Law Review 285 (2020)
Improving the “diversity” of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. Today, there is deep concern that on the federal level, the goal of judicial diversity has been not only abandoned, but reversed. This article examines difficulty in improving judicial diversity despite oft-stated support for greater inclusion. It then discusses the role philosophical theories of justice embracing a “view from nowhere” has been used, erroneously, to link impartiality to colorblindness (read “whiteness”). It critiques this transcendental approach and offers a different philosophical “view from everywhere” which argues that the inclusion of persons representing diverse views and experiences supports impartiality and open-mindedness and should be a key consideration in improving justice and supporting greater diversity on the bench.
Monday, November 2, 2020
Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett
I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court. Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court. The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.
Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court
Monday, October 12, 2020
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Tuesday, September 29, 2020
Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico
National Review, Why Left Wing Feminists Hate Amy Coney Barrett
Amy Coney Barrett is Not a Feminist Icon, Huff Post
My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist. No. Feminism is not just girl power, or women doing things traditionally reserved for men. Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism. But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement. Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity. Under this definition, Barrett is not a feminist.
Wednesday, September 9, 2020
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Thursday, September 3, 2020
The appointment of female judges in South Africa is part of the transformative constitutional project. This chapter examines the question of gender equality and specifically the contribution of female judges to the transformation of the judiciary in. It explores whether women judges have, in their judgements, conscripted and interpreted the Constitution to highlight and guarantee its transformative potential and possibilities. The chapter attempts to answer two questions: What difference has the cohort of women judges made since their appointment in significant numbers post-1994? What is the impact of women judges on constitutional jurisprudence with respect to gender equality? I conclude that despite some overlap between the opinions of the female and male judges, the opinions of the female judges differ in some significant ways from their male counterparts. This difference is located in the distinct way that female judges have framed the legal issues. The chapter has pointed out that considerable institutional obstacles continue to impede women’s appointment to the judiciary, but once on the bench, they really make a difference.
Tuesday, July 7, 2020
Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence
It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russo, the major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.
In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***
There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roe, and Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and process. The regard for a woman’s right to choose itself? That doesn’t even register as material.