Difference in feminism, difference in the high court

Our reading this week has dealt in part with some of the theoretical bases of “sameness” and “difference” --and how these divergent approaches to feminism and law are used to conflicting effects in the Courts. I start my discussion of these ideas in a roundabout fashion, via Supreme Court Justice Ruth Bader Ginsburg.

Ginsburg, the Court’s second woman Justice ever and its eldest current member, recently spoke at the SMU law school campus in Dallas. The story, as reported by the Associated Press, is here. Ginsburg spoke of her 1993 confirmation process, in which the Senate voted to confirm her with only three votes in dissent. Three.

In one sense, this is not shocking -- after all, she had amassed an impressive career that included time spent at the Circuit Court of Appeals and the Clinton Administration. She clearly deserved the confirmation. Yet Ginsburg’s comments at SMU (see below) remind us of the partisan nature of the modern-day confirmation process -- a divisive trial of character that, were Ginsburg to undergo it today, might prove insurmountable.

Ginsburg’s trailblazing work for the Women’s Rights Project of the ACLU would surely raise the hackles of key Republican members of the Senate Judiciary Committee (the intractable Senators Cornyn and Sessions spring immediately to mind). At the time, Justice Ginsburg stood by her ACLU work. And yet, as reported by the AP, Ginsburg told about 2,000 listeners, “Today, my ACLU connection would probably disqualify me from the Court." She added, “I wish we could wave a magic wand and go back to the days when the process was bipartisan.”

What was it exactly that would make her confirmation so problematic today? Her overall liberalness? Her being a woman? Her difference? Perhaps it would be because she would not be able to (or indeed even know how to] neutrally “call balls and strikes” in the anodyne jurisprudential fashion endorsed by her superior, Chief Justice John Roberts.

Flashback to the 1970s: As Director of the ACLU’s Women’s Rights Project, Ginsburg was the single most important women’s rights attorney in American history. She authored the brief in Reed v. Reed, which convinced a unanimous Supreme Court to hold for the first time that the Constitution's guarantee of equality extends to women.

Yet it was her co-authored brief for the Appellants in Craig v. Boren that made the greatest impact. In that case, Ginsburg successfully persuaded the Court to apply for the first time a heightened (“intermediate”) form of scrutiny to laws that treated men and women unequally. Craig v. Boren is consistently reaffirmed by Courts as the proper standard of review in gender equality cases.

Underpinning Ginsburg’s brief and the opinion were fundamental considerations of difference, and the extent to which the Court would uphold laws whose raison d’etre was the presumption of stereotypes of women’s different place in society -- the same kind of presumptions that had informed sexist opinions dating back to Bradwell v. Illinois. In this respect, then, difference --some of it real, some of it “natural law,” some of it purely positivist -- was used against women, to maintain their unequal position. Boren and its progeny clearly stated that such uses would be strongly scrutinized.

However, as discussed in Deborah Rhode's Definitions of Difference, in Theoretical Perspectives on Sexual Difference (1990), neutrally glossing over difference in favor of men’s and women’s same positions may not always be the favored approach. In areas of pregnancy leave, for example, theorists are at odds over whether to endorse an approach seeking workplace benefits the same as those given to all other “disabilities,” or to highlight the different and special case of pregnancy. As Rhode asks, “To what extent should woman's special reproductive capacity entitle her to special legal status?"

The paper raised interesting theoretical concerns of “neutrality,” and its place in equal protection doctrine. I admit I am new to the discourse, and thus will necessarily miss much of its nuance. Yet the answer to which approach is best (sameness or difference) is perhaps best answered by asking the prior question: Is the method used by the courts important, or rather the outcome it espouses? As suggested by Judith Baer, in Our Lives Before the Law (1999), “The problem is not how neutral you make it but how you make it neutral."

Ginsburg’s life aptly demonstrates some of the confusions of difference. Through the ACLU she fought to ensure the eradication of persistent views of women as different and incapable. She experienced her difference when she was decidedly not welcome among the old boys’ community of Harvard Law. Yet she was forced to cover up her difference in another, discrete way when she hid her pregnancy in order to save her tenure at Columbia.

Looking back to the Supreme Court nomination process, a perfect analogue is Sonia Sotomayor, whose distinct life experiences provided a welcome and individual voice and perspective to a Court known as the home of individual –and strong-- voices. Yet the Senators weren’t so fond of her difference --her Latina heritage, her working-class background, her femininity. These were singled out as sources of problems.

Judging by the Senators’ not always veiled criticisms, it was as if there were another Sonia Sotomayor out there in the world – a more neutral one, blessedly stripped of diversity, perspective, completely devoid of difference. That alternate Sotomayor likely would have borne a striking resemblance to C.J. John Roberts. That Sotomayor would be forced to call balls and strikes just like Roberts, no different -- this, even though the real Sotomayor and the real Ginsburg happily call their own balls and strikes, only they prefer to use their own, different, strike zones.