Gender and the Law Prof Blog

Justice Sotomayor to Justice Kavanaugh: "I Judge You By What You Do Here"

Sonia Sotomayor: Brett Kavanaugh Part of Supreme Court Family

Justice Sonia Sotomayor in an interview with CNN's David Axelrod said that Justice Brett Kavanaugh was welcomed into the Supreme Court "family" in the wake of his polarizing confirmation process.

When you're charged with working together for most of the remainder of your life, you have to create a relationship," Sotomayor said in an "Axe Files" interview airing Saturday.

"The nine of us are now a family and we're a family with each of us our own burdens and our own obligations to others, but this is our work family, and it's just as important as our personal family. * * * 

Sotomayor said despite the contentious confirmation, she told Kavanaugh that the focus on him will settle on his actions as part of the court.

"It was Justice (Clarence) Thomas who tells me that when he first came to the Court, another justice approached him and said, 'I judge you by what you do here. Welcome.' And I repeated that story to Justice Kavanaugh when I first greeted him here," she said. * * *

Sotomayor, who was first confirmed to the court in 2009, also pushed back on the notion that Kavanaugh's presence cements a conservative tilt on the Court -- an institution she said is above "political terms."

"Conservative, liberal, those are political terms," she said. "Do I suspect that I might be dissenting  a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch, But you know, let's see."

When asked modern political discourse, Sotomayor said too large of an emphasis has been put on differences rather than common "human values."

"We all have families we love, we all care about others, we care about our country, and we care when people are injured," she told Axelrod. "And unfortunately, the current conversation often forgets that. It forgets our commonalities and focuses on superficial differences whether those are language or how people look or the same God they pray to but in different ways.

"Those differences truly are not important," she added. "What is important is those human values we share and those human feelings that we share. But I worry that we forget about that too often."

 

And as she predicted, she subsequently joined Justice Gorsuch in their two-justice dissent. See Sotomayor Joins Gorsuch in Dissent from Cert Denial in Drunken Driving Case

New Book: First, Sandra Day O'Connor

Evan Thomas, First: Sandra Day O'Connor (forthcoming 2019)

The intimate, inspiring, and authoritative biography of Sandra Day O’Connor, America’s first female Supreme Court justice, drawing on exclusive interviews and first-time access to Justice O’Connor’s archives—by the New York Times bestselling author Evan Thomas.

“She’s a hero for our time, and this is the biography for our time.”—Walter Isaacson

She was born in 1930 in El Paso and grew up on a cattle ranch in Arizona. At a time when women were expected to be homemakers, she set her sights on Stanford University. When she graduated near the top of her law school class in 1952, no firm would even interview her. But Sandra Day O’Connor’s story is that of a woman who repeatedly shattered glass ceilings—doing so with a blend of grace, wisdom, humor, understatement, and cowgirl toughness.

She became the first ever female majority leader of a state senate. As a judge on the Arizona State Court of Appeals, she stood up to corrupt lawyers and humanized the law. When she arrived at the United States Supreme Court, appointed by President Ronald Reagan in 1981, she began a quarter-century tenure on the Court, hearing cases that ultimately shaped American law. Diagnosed with cancer at fifty-eight, and caring for a husband with Alzheimer’s, O’Connor endured every difficulty with grit and poise.

Women and men who want to be leaders and be first in their own lives—who want to learn when to walk away and when to stand their ground—will be inspired by O’Connor’s example. This is a remarkably vivid and personal portrait of a woman who loved her family, who believed in serving her country, and who, when she became the most powerful woman in America, built a bridge forward for all women.

First Woman Supreme Court Justice Announces Retirement from Public Life

O'Connor is a Pioneer Again As She Faces Dementia

Now, perhaps fitting of the pioneering tendency she has shown all around, the 88-year-old retired justice revealed on Tuesday that she is in "the beginning stages of dementia, probably Alzheimer's disease."

 

In the letter written from Phoenix, as she explained that she was no longer participating in public life, she again surmounted the stigma that sometimes comes with illness.

"While the final chapter of my life with dementia may be trying, nothing has diminished my gratitude and deep appreciation for the countless blessings in my life," she wrote in the letter released by the Supreme Court.

  

O'Connor, who became an influential author of decisions on abortion rights, racial affirmative action, criminal procedures, and an array of social dilemmas during her quarter century tenure, also has had a deep personal imprint on American life.

The Merchandising of Ruth Bader Ginsburg

ABA J, Supreme Icon: From Shirts to Action Figures to Movies and an Album, Justice Ruth Bader Ginsburg has Become an Unlikely Pop Culture Icon

On the website Etsy, which sells crafts and vintage items, typing “Ruth Bader Ginsburg” into the search bar yields more than 1,000 results.

 

You can buy a birthday card with the associate justice’s image and the phrase “small and mighty” written in pink. There’s also a tank top bearing her stern visage and “I dissent” written underneath. There are posters of her as Rosie the Riveter, peg dolls of her in full judicial regalia and even prayer candles portraying her as “the Patron Saint of the Supreme Court.”

 

If Etsy isn’t your thing, you can find a Ginsburg action figure on Kickstarter, complete with gavel, pointing finger and her “iconic jabot,” a frilly, fancy-looking collar perfect for making “fashion and judicial statements.” The initial funding goal was $15,000. As of September, it had raised well over $600,000. “She is a rock star. She is an inspiration. She is constantly fighting. She is brilliant and fearless,” the introductory video to the Kickstarter page states. “She is an icon.”

 

The items aren’t all kitschy. There are plenty of posters, coffee mugs and shirts featuring inspirational and even strident quotes from her speeches and opinions. One oft-used line came from an interview she gave shortly after Sonia Sotomayor was nominated to the Supreme Court in 2009: “Women belong in all places where decisions are being made.” Another popular one for product designers is: “Fight for the things you care about.”

 

That latter quote was from a 2015 luncheon at the Radcliffe Institute for Advanced Study at Harvard University in Justice Ginsburg’s honor. Oftentimes, these products will leave off the last part of Ginsburg’s sentence, which was “but do it in a way that will lead others to join you.” That outlook may explain why Ginsburg has become a cottage industry, generating countless products—none of which she has likely endorsed but has often been a good sport about.

 

And that’s just the tip of the iceberg. There is a music album inspired by her life story. There are websites and memes that celebrate her jurisprudence, her fiery dissents and her dedication to civil rights, gender equality and social justice. There’s even a recent documentary and an upcoming Hollywood film chronicling her long and storied career as a litigator fighting on behalf of gender equality.

New Book -- Ruth Bader Ginsburg: A Life

New biography of Justice Ginsburg, out October 16, Jane Sharron de Hart, Ruth Bader Ginsburg: A Life 

The first full life—private, public, legal, philosophical—of the 107th Supreme Court Justice, one of the most profound and profoundly transformative legal minds of our time; a book fifteen years in work, written with the cooperation of Ruth Bader Ginsburg herself and based on many interviews with the justice, her husband, her children, her friends, and her associates.

In this large, comprehensive, revelatory biography, Jane De Hart explores the central experiences that crucially shaped Ginsburg’s passion for justice, her advocacy for gender equality, her meticulous jurisprudence: her desire to make We the People more united and our union more perfect. At the heart of her story and abiding beliefs—her Jewish background. Tikkun olam, the Hebrew injunction to “repair the world,” with its profound meaning for a young girl who grew up during the Holocaust and World War II. We see the influence of her mother, Celia Amster Bader, whose intellect inspired her daughter’s feminism, insisting that Ruth become independent, as she witnessed her mother coping with terminal cervical cancer (Celia died the day before Ruth, at seventeen, graduated from high school).
 

From Ruth’s days as a baton twirler at Brooklyn’s James Madison High School, to Cornell University, Harvard and Columbia Law Schools (first in her class), to being a law professor at Rutgers University (one of the few women in the field and fighting pay discrimination), hiding her second pregnancy so as not to risk losing her job; founding the Women's Rights Law Reporter, writing the brief for the first case that persuaded the Supreme Court to strike down a sex-discriminatory state law, then at Columbia (the law school’s first tenured female professor); becoming the director of the women’s rights project of the ACLU, persuading the Supreme Court in a series of decisions to ban laws that denied women full citizenship status with men. 

 Her years on the U.S. Court of Appeals for the District of Columbia Circuit, deciding cases the way she played golf, as she, left-handed, played with right-handed clubs—aiming left, swinging right, hitting down the middle. Her years on the Supreme Court . . . 

 A pioneering life and legal career whose profound mark on American jurisprudence, on American society, on our American character and spirit, will reverberate deep into the twenty-first century and beyond.

Remembering Ruth Bader Ginsburg's Supreme Court Nomination and Opposition

Jill Lepore, Ruth Bader Ginsburg's Unlikely Path to the Supreme Court, New Yorker

God bless Ruth Bader Ginsburg, goats, bobbleheads, and all. But trivialization—R.B.G.’s workout tips! her favorite lace collars!—is not tribute. Female heroes are in short supply not because women aren’t brave but because female bravery is demeaned, no kind more than intellectual courage. Isn’t she cute? Ginsburg was and remains a scholar, an advocate, and a judge of formidable sophistication, complexity, and, not least, contradiction and limitation. It is no kindness to flatten her into a paper doll and sell her as partisan merch.

 

Doing so also obscures a certain irony. Ginsburg often waxes nostalgic about her confirmation hearings, as she did this September, when, regretting the partisan furor over Brett Kavanaugh—even before Christine Blasey Ford came forward—she said, “The way it was was right; the way it is is wrong.” The second of those statements is undeniably and painfully true, but the first flattens the past. What Biden was getting at, in 1993, was what the President himself had said, dismissing the idea of nominating Ginsburg when it was first suggested to him. “The women,” Clinton said, “are against her.” ***

 

And so when Clinton, eager to please, entertained names proposed by women’s groups, he learned that some of them refused to support Ginsburg, because they were worried that she might be willing to overturn Roe (which is not what she had written, but one gathers that the Madison Lecture was more often invoked than read). At one point, Clinton asked Senator Daniel Patrick Moynihan to suggest a woman. “Ruth Bader Ginsburg,” Moynihan answered. “The women are against her” was the President’s reply. Moynihan called Martin Ginsburg and said, “You best take care of it.

A Historical Picture of Eleven Women Who Could Have (or Would Be) on the Supreme Court

Meg Penrose, The Way-Pavers: Eleven Supreme Court-worthy Women, Harvard J. Law & Gender (online) (July 2018)

Four women have served as associate justices on the United States Supreme Court. Since the Court’s inception in 1789, more than 160 individuals have been nominated to serve as Supreme Court justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court justices than women. Thirteen U.S. presidents have each nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently as many Catholics serving on the Supreme Court as the number of women confirmed in the Court’s entire history.

 

Women, once thought of as “one-at-a-time-curiosities” on the bench, now constitute nearly one-third of all state and federal judges. They occupy the highest posts on state supreme courts and can be found, in similar numbers, at the trial and appellate levels. If we limit our consideration to the current Supreme Court, women held one-third of the seats on our Supreme Court at the time of Justice Kennedy’s 2018 retirement. Yet, this number is deceptive since women on the highest court is a modern phenomenon.

 

Qualified women have been available for selection for many years—long before Justice Sandra Day O’Connor became the first woman on the Supreme Court, or FWOTSC, as she refers to herself. It was not until a 1980 campaign promise by then-Governor Ronald Reagan to appoint the first female justice to the Supreme Court that a woman broke one of our government’s last gender barriers. Presidents prior to that time were complicit in allowing male members of the Court, among other influences, to stave off appointments of well-qualified women. So, women waited. But now, women account for four of the last thirteen Supreme Court appointments and five of the past seventeen nominees. Clearly, the numbers are increasing.

 

This Essay presents the second scholarly ranking of female jurists deserving of a seat on the highest court in the land. The list celebrates eleven judicial way pavers: Ruth Bader Ginsburg, Sandra Day O’Connor, Sonia Sotomayor, Elena Kagan, Florence Allen, Constance Baker Motley, Shirley Huftstedler, Patricia Wald, Cornelia Kennedy, Harriet Miers and, Belva Lockwood. Each of these women is, or was, Supreme Court-worthy. Yet only four of them actually occupy or have occupied a place on the Court.

Number of Women Arguing Before the Supreme Court has Fallen Off Steeply

 ABA J, Number of Women Arguing Before the Supreme Court Has Fallen Off Steeply

Justices Ginsburg, Sonia Sotomayor, Elena Kagan and their male colleagues saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.

 

During the recently completed term, there were 19 appearances at oral argument by women, or about 12 percent of the total 163 appearances, according to statistics kept by Kedar Bhatia for SCOTUSblog. (There were 113 different advocates who argued for parties or amici in the 63 argued cases, with several lawyers appearing more than once.)

 

The 12 percent figure was a steep drop from the previous term (2016-17), when 21 percent of appearances at oral argument were by women. In the previous five years to that term, the participation rate for women ranged from a low of 15 percent to a high of 19 percent.

 

“The thing that’s most disturbing to me is the consistency in the data,” says Jennifer Crystal Mika, an adjunct professor at American University’s Washington College of Law in the nation’s capital, who has studied the issue of female advocates before the high court. “There has never been much more than 20 percent female advocates over the last 20 years.”

Judicial Phenomenon Ruth Bader Ginsburg Celebrates 25 Years on the Court

Joan Biskupic, Ruth Bader Ginsburg, Now a Judicial Phenomenon, Marks 25 Years on the Bench

The documentary "RBG," co-produced by CNN, has made $13.5 million at the box office, according to comScore, and will be broadcast next month on the network. Oscar nominee Felicity Jones will play her in a feature film, "On the Basis of Sex," in December.

 

The justice said recently that she hopes to stay on the Supreme Court at least five more years, when she'll be 90. She has survived two bouts with cancer, colorectal in 1999 and pancreatic in 2009.

 

Ginsburg's celebrity might not have been predicted when President Bill Clinton chose her for the high court in summer 1993. Then a 60-year-old federal appellate judge, she was not Clinton's first choice. He was looking for a flashier appointee and initially tried to woo former New York Gov. Mario Cuomo to the bench.

 

Ginsburg, with her large-rimmed glasses, hair tied back in a short ponytail, presented the picture of seriousness. She spoke of taking "measured motions" as a jurist. Supporters portrayed her as a night owl who spent hours hunched over law books and legal briefs, tepid coffee and prunes at hand. Her daughter created a little book titled "Mommy Laughed," chronicling the few times it happened.

 

Once on the Supreme Court, Ginsburg was a sharp questioner and meticulous opinion-writer. She leaned in but without the attention-getting style of the first female justice, Sandra Day O'Connor, or gregarious longtime pal Antonin Scalia.

 

She was hardly a liberal in the mode of contemporary justices on the left: William Brennan, Thurgood Marshall or Harry Blackmun. But as the court changed over the years and became more conservative with each retirement, she found herself carrying the banner for the left.

The 411 on the Second New Ruth Bader Ginsburg Movie "On the Basis of Sex"

Absolutely cannot wait for this.  (Coming in December).  So cool that the costumes (at least in the trailer) closely align with the archival photos.

On the Basis of Sex Official Movie Site

Felicity Jones is Ruth Bader Ginsburg in New Trailer for "On the Basis of Sex"

Felicity Jones makes a damn good Ruth Bader Ginsburg.

Jones plays the iconic Supreme Court justice in the upcoming film based on RBG’s life, “On the Basis of Sex.” A new trailer for the film follows a young Ginsburg as she starts law school at Harvard, where she was only one of nine other female students in her class.

“Protests are important, but changing the culture means nothing if the law doesn’t change,” Ginsburg says to political activist and fellow lawyer Dorothy Kenyon (Kathy Bates) in the trailer. 

"On the Basis of Sex" Trailer: Can Felicity Jones Handle Ruth Bader Ginsburg's Accent?" [sic the NYT's headline snark]

A biopic of the Supreme Court justice Ruth Bader Ginsburg could hardly seem timelier, given the current headlines about President Donald J. Trump’s new nominee for the high court, Brett Kavanaugh, as well as the surprise box-office success of the recent documentary “RBG.” But based on the first trailer for “On the Basis of Sex,” fictionalization may prove stranger than truth in this case.

For two years, Natalie Portman was slated to play Justice Ginsburg, but dropped out in 2017, only to be replaced by Felicity Jones. Ms. Jones was born in Birmingham, England, and initial impressions indicate she may not have nailed Ms. Ginsberg’s distinctive Brooklyn accent.

Felicity Jones is Ruth Bader Ginsburg in First Trailer for "On the Basis of Sex"

Felicity Jones Transforms into Young Ruth Bader Ginsburg in Trailer

SCOTUS Overturns CAL Disclosure Law for Pro-Life Pregnancy Counseling Centers

In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.

The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra.  Concurrence by Justice Kennedy. Dissent written by Justice Breyer.

Commentary on the decision:

Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy

On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.

 

For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****

 

But the court’s decision to treat crisis pregnancy centers as religious institutions has created two  contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different. 

 

Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement

These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”

 

Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions

 

Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)

 

Abortion Providers Have Less First Amendment Rights than Abortion Opponents

One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.

 

On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.

The Jurisprudence of Uncertainty: Knowledge, Science & Abortion

Mary Ziegler, The Jurisprudence of Uncertainty: Knowledge, Science & Abortion, 2018 Wisconsin L. Rev. 316 (2018)

While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.

 

The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact.

 

The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.

New Ruth Bader Ginsburg Movie Finds its Heart in Love, not Law

Vogue, A New Ruth Bader Ginsburg Movie Finds its Heart in Love, not Law

The Ruth Bader Ginsburg documentary, RBG, directed by Betsy West and Julie Cohen, is probably not what you think it is, or even what, given the partisan hoopla in which we attempt to live our lives, you’d be forgiven for thinking it might be: a fawning polemic detailing a liberal justice battling the court’s right wing. There is fawning, though a fair amount is done by conservatives, including soon-to-retire Republican Senator Orrin Hatch and Antonin Scalia, the conservative justice and, until his death in 2016, the BFF of RBG. But the film is a deftly crafted portrait of a refreshingly wildly mild-mannered legal mind who was a powerful force in American life long before she donned the black robes and her trademark collars (one for dissenting opinions, one when she is siding with the majority, a fashion touch she developed with her female justice predecessor, Sandra Day O’Connor). What’s surprising to a casual follower of the judicial branch is that you’ll be reaching not for your legal pad while watching the film, but the tissues, given that what actually underpins RBG is a love story.

SCOTUS Denies Cert in Abortion Protest Case Leaving in Place Noise Restriction Law

Supreme Court Declines Appeal of Ruling Against Pastor Who Preaches Outside Planned Parenthood

The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.

 

The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.

 

However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.

 

“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...

 

In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.

 

“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.

 

She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”

 

However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.

 

“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.

The First Circuit Court of Appeals case is here, March v. Mills (2017)

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

Gender, Immigration, and the Travel Ban

Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)

Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.

Constitutional Conflict Over Inherent Differences Between the Sexes

Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)

Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?

The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology. 

This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.

Justice Sotomayor: You Can't Fight the Facts of Women's Inequality

"You Can't Fight the Facts": Sotomayor Makes Case for Pay Equality

Justice Sonia Sotomayor this week homed in on pay inequality as one of the country’s biggest issues, as lawsuits are underway challenging the gender pay gaps at major companies and the Trump administration defends its scuttling of an expanded federal pay data rule.

 

In an appearance Wednesday at Brown University, Sotomayor was asked by a student what she considered the greatest challenges facing women.

“Women doing the same work still earn less than men. You can’t fight the facts. Pay equality is one of the biggest issues our nation faces,” Sotomayor said.

 

In November, the National Women’s Law Center and the Labor Council for Latin American Advancement sued the Trump administration’s Office of Management and Budget and the U.S. Equal Employment Opportunity Commission. They charged that government officials illegally blocked an Obama administration rule that would have required employers with 100 or more employees to report pay for their employees by race, gender and ethnicity.

 

The data rule was eliminated without explanation or opportunity for public comment, according to the lawsuit filed in U.S. District Court for the District of Columbia.***

 

Pay inequality wasn’t the only gender-related challenge on Sotomayor’s mind during the Brown discussion. She made a larger point about gender equality in the law:

“When I started, [law] firms of 300 and 400 had one or two female partners, and they were touting how progressive they were. What a joke, right? They told me that over time, we would reach equality. Well, I started in 1979, and there’s still only one-third women as federal judges, and we’re a lot of women in the profession. So, what’s happening?”

The Supreme Court's New Approach to Pregnancy Discrimination and Pregnancy as a Normal Condition of Employment

Reva Siegel, Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination, William & Mary L. Rev (forthcoming)

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women as well as men would combine work and family—a world in which pregnancy would be a normal condition of employment. A social-roles analytic helps explain the logic of pregnancy discrimination, whether it assumes the form of hostility to pregnant workers or a simple failure to accommodate.

Drawing on this social-roles analytic, the Lecture offers a reading of Young v. UPS, the Supreme Court’s most recent decision on the PDA. Young breaks from an exclusively comparative approach and authorizes pregnancy accommodation claims under both disparate treatment and disparate impact frameworks. The Court’s approach is informed by a growing popular consensus. As the PDA turns forty, nearly half the states have enacted pregnant worker fairness acts supporting reasonable accommodation of pregnancy in the workplace.

Examining Feminist Legal Briefs to SCOTUS for Their Use of Race–Gender Analogical Legal Framing

Holly McCammon, Brittany N. Hearne, Allison R. McGrath, Minyoung Moon,  Legal Mobilization and Analogical Framing: Feminist Litigators' Use of Race-Gender Analogies, 40 Law & Policy 57 (2018).

From the Introduction:

In an effort to contribute to our understanding of social movement judicial legal mobilization, our paper explores legal briefs submitted to the US Supreme Court in gender-equality cases since 1970. We focus particularly on the use of a specific type of legal framing in these briefs: analogical legal framing. As Sunstein (1993) points out, this is a commonly used form of reasoning in litigation, and some (Mayeri 2001; Rush 1997) argue that it is a dominant form, particularly in civil rights litigation. In analogical legal framing, a litigant argues that similarities exist, for instance, between two groups, and developments in law regarding one group should be considered in adjudication concerning the other group (Mayeri 2001; Sunstein 1993).2 Here we specifically investigate feminist litigators' use of race–gender analogies in their cause lawyering. Feminist cause lawyers have pursued a substantial number of cases before the high court over the last several decades in an effort to achieve greater gender equality under the law. In such cases, with some frequency, the feminist party to the case (that is, the party seeking greater gender equality) draws an analogy between racial and gender discrimination as they argue in favor of broadening gender equality. In fact, MacKinnon (1991, 1281) goes so far as to state that “the judicial interpretation of sex equality … has been built on the racial analogy.” Mayeri (2011, 3), who examines in rich detail “reasoning from race,” states that “‘second-wave’ feminists conscripted legal strategies developed to combat race discrimination into the service of women's rights.”

 

Various scholars explore whether and how movement activists invoke the law generally (e.g., Pedriana 2006; Andersen 2005; McCann 1994), yet few examine how cause lawyers articulate their demands in court. Our investigation contributes to the larger literature on legal mobilization by taking a number of steps. First, we explore the use of analogical legal framing by activists, a type of litigation reasoning commonly used but not yet investigated as a form of movement framing. We examine the frequency and trends in the use of such arguments in feminist briefs presented to the Supreme Court in gender-equality cases from 1970 to the present. In addition, we provide insight into the various forms the race–gender analogy takes. Second, we consider how social movement framing concepts, such as frame bridging and transformation (Snow et al. 1986), can be understood in combination with analogical legal framing.

 

Finally, our research also contributes to the understanding of why activists choose to deploy particular types of frames. A handful of scholars have investigated the circumstances shaping why movements articulate certain types of frames (e.g., McCammon 2012; Coe 2011; Maney, Woehrle, and Coy 2005), but few have considered the circumstances leading to the use of specific frames in movement litigation (for exceptions, see Goldberg 2014; Fuchs 2013; Ziegler 2011). Our investigation of analogic framing by feminist legal activists will enrich our understanding not only of movement framing but also (in particular) of framing as practiced by activists engaged in legal mobilization. By examining why shifts in the overall use and in the varying types of the analogic frame occur, our research furthers understanding of this particular form of legal mobilization strategy.