Ruth Bader Ginsburg's Legacy of Dissent : Feminist Rhetoric and the Law [1 ed.] 9780817391751, 9780817319786

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RUTH BADER

GINSBURG’S

Legacy of Dissent

RHETORIC, LAW, AND THE HUMANITIES Series Editors Clarke Rountree Editorial Advisory Board A. Cheree Carlson Kirsten K. Davis Trevor Parry-­Giles Marouf Hasian Jr. William Lewis Francis J. Mootz III Sean Patrick O’Rourke Eileen A. Scallen Edward Schiappa Omar Swartz Colin Starger Gerald B. Wetlaufer David Zarefsky

RUTH BADER

GINSBURG’S Legacy of Dissent Feminist Rhetoric and the Law KATIE L. GIBSON

The University of Ala­bama Press Tuscaloosa

The University of Ala­bama Press Tuscaloosa, Ala­bama 35487-­0380 uapress.ua.edu Copyright © 2018 by the University of Ala­bama Press All rights reserved. Inquiries about reproducing material from this work should be addressed to the University of Ala­bama Press. Chapter 4 is derived in part from a previously published article: “In Defense of Women’s Rights: A Rhetorical Analysis of Judicial Dissent,” Women’s Studies in Communication 35 (2012): 123–37. Typeface: Caslon and Miller Cover image: Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States; photo by Steve Petteway, Collection of the Supreme Court of the United States Cover design: Michele Myatt Quinn Library of Congress Cataloging-in-Publication Data Names: Gibson, Katie L. (Katie Lorayne), 1976– author. Title: Ruth Bader Ginsburg's legacy of dissent : feminist rhetoric and the law / Katie L. Gibson. Description: Tuscaloosa : The University of Alabama Press, 2018. | Series: Rhetoric, law, and the humanities | Includes bibliographical references and index. Identifiers: LCCN 2017035686| ISBN 9780817319786 (cloth) | ISBN 9780817391751 (e book) Subjects: LCSH: Ginsburg, Ruth Bader. | Women judges—United States— Biography. | Judges—Untied States—Biography. | Dissenting opinions—United States. | Feminist jurisprudence—United States—History.| Women's rights— United States—History. | Feminist theory—History. Classification: LCC KF8745.G56 G53 2018 | DDC 347.73/2634—dc23 LC record available at https://lccn.loc.gov/2017035686

Dedicated with love to Nate, Owen, and Grayson.

Contents

Introduction. The Patriarchal Voice of the Law: Generic Scripts and Bradwell v. Illinois     1 1. Judicial Rhetoric and Women’s Place: The Legal Precedent of Separate Spheres     19 2. Advancing a Language of Feminist Jurisprudence: Reed v. Reed and Ruth Bader Ginsburg’s Grandparent Brief     38 3. Shifting the Boundaries of Equal Protection: Justice Ginsburg’s Defense of Progressive Constitutionalism in United States v. Virginia     62 4. Confronting the Boundaries of Abortion Jurisprudence: Justice Ginsburg’s Equality Rationale in Gonzales v. Carhart     84 5. Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Contributions and Democratic Promise     103 Notes     123 Bibliography     149 Index     161

RUTH BADER

GINSBURG’S

Legacy of Dissent

Introduction

The Patriarchal Voice of the Law Generic Scripts and Bradwell v. Illinois

Ruth Bader Ginsburg has reshaped the language of Ameri­can jurisprudence. Since the early 1970s, Ginsburg has led the most profound attack on sexist law in the history of the United States.1 Her legal advocacy has confronted the patriarchal voice of the law and pointedly challenged an entrenched genre of legal language that silences the voices and experiences of Ameri­can women and undermines their equal citizenship stature. On the United States Supreme Court, Justice Ginsburg continues to challenge the traditional scripts of legal discourse to insist on a progressive vision of the Constitution and to demand a more inclusive and demo­cratic law. Ruth Bader Ginsburg’s lifelong effort to reshape the language of Ameri­can law has had profound consequences—she has shifted the rhe­tori­cal boundaries of jurisprudence on a wide range of fundamental issues, from equal protection to reproductive rights. “Put simply,” Nina Totenberg recently remarked, “she changed the way the world is for Ameri­can women.”2 Indeed, many court observers consider her impact on Ameri­can law to be greater than that of any living judge.3 Ruth Bader Ginsburg’s remarkable legal legacy rests upon her consistent and direct challenge to the law’s traditional voice. It is surprising, then, that Ginsburg’s voice of dissent has only recently gained appreciation from a broader Ameri­can public. In 2013, a Tumblr likened Justice Ginsburg to the rapper Notorious B. I. G. and inspired a “Notorious RBG” meme that transformed the eighty-­year-­old justice into a popu­lar culture icon. The meme appeared on T-­shirts, coffee mugs, and bumper stickers alongside punchy phrases like “Fear the Frill” and “Can’t Spell Truth without Ruth.” In response to Ginsburg’s rising popu­larity and new status as a ­“badass

2 / Introduction

g­ angsta Internet meme,” Rebecca Traister designated RBG “the most popu­ lar woman on the internet” and cheered: “Now, mercifully—finally—young people are creating a new vocabulary, a library of visual and aural iconography that warmly appreciates female power in not just its nubile, but also its senior, its brainy, its furious, and its professionally brawny forms.”4 While a growing number of admirers are championing Justice Ginsburg’s “female power” and celebrating her voice of dissent today, Ruth Bader Ginsburg’s rhe­tori­cal legacy reveals that she has long articulated a sharp and strategic voice of judicial dissent. This book looks deeply at Ruth Bader Ginsburg’s rheto­ric to argue that one of her great contributions to Ameri­can law is that she has boldly challenged the traditional boundaries of legal language to make way for a feminist jurisprudence and more demo­cratic rule of law. Ruth Bader Ginsburg stands as an incredibly important fig­ure in late-­twentieth and early-­twenty-­ first-­century feminism. The following chapters offer a more complete understanding of her feminist legacy by detailing the unique contributions of her legal rhetoric. As Richard Rorty explains, “A talent for speaking differently, rather than for arguing well, is the chief instrument of social change.” 5 Ruth Bader Ginsburg’s “talent for speaking differently” has revolutionized Ameri­can law. Her rhe­tori­cal legacy has shifted the discursive borders of women’s citizenship and promised a more demo­cratic law—for all those long excluded by the traditional scripts of legal discourse.

Legal Language as Genre: The Rhetorical Commitments of the Law The voice with which the law speaks invites us to see the world in particular ways and constitutes rhe­tori­cal boundaries for imagining Ameri­can citizenship. Years ago, James Boyd White urged legal scholars to investigate the law as a constitutive rhetoric.6 According to White, the traditional focus of legal criticism looked only to the material results of legal discourse—to the actual redistribution of assets, in­clud­ing property, money, and rights, that result from legal decisions. White urged instead a rhe­tori­cal focus that turned the attention of legal criticism back to the language of jurisprudence to investigate the nature of the community constituted in legal discourse.7 White asked: “What voices does the law allow to be heard, what relations does it establish among them? With what voice, or voices, does the law itself speak? These are the questions with which rhe­tori­cal criticism would begin.”8 This rhe­tori­cal study begins with similar questions. With each ruling it hands down, the court constitutes a landscape of sanctioned ­argument—­a reservoir of rhe­tori­cal forms—that invites a particular way of

Introduction / 3

seeing our world and imagining the scope of our constitutional community. The stories told, the metaphors employed, and the characterizations advanced through legal discourse announce rhe­tori­cal boundaries that shape the reasoning and imagination of citizens, legislators, and future courts when negotiating the rights and responsibilities of Ameri­can citizenship. These rhe­tori­cal boundaries have been deeply problematic for advocates of women’s rights through­out US history. As Lucinda Finley explains, “Since [legal] language has been crafted primarily by white men, the way it frames issues, the way it defines problems, and the speakers and speech it credits, does not readily include women.”9 This is true; the community constituted through the language of the law—the voices heard, the experiences valued, and the perspectives affirmed—has long excluded many Ameri­can citizens. In her fight to enlarge the rhe­tori­cal boundaries of legal imagination, Ruth Bader Ginsburg has challenged the traditional voice of the law and defied the generic norms of legal discourse. Although the genre of legal rheto­ric has been described in different ways, it is clear that the voice of the law is overwhelmingly shaped by linguistic commitments to objectivity, abstraction, and closure.10 These commitments work together in legal discourse to frame the law as antirhe­tori­cal—as a paradigm of closed discourse that operates independent of and above the politics of the citizenry. As Gerald Wetlaufer argues, “Law is rheto­ric but the particular rheto­ric embraced by the law operates through the systematic denial that it is rheto­ ric.”11 Other scholars have described the the voice of the law similarly. Robert Ferguson, for example, describes the genre of judicial opinion as shaped by four distinguishing features: a monologic voice, an interrogative mode, a declarative tone, and a rheto­ric of inevitability.12 Robert Rubinson also argues that a monologic voice is characteristic of legal discourse. It is a rheto­ric of closure, Rubinson tells us, consistently decontextualized, authoritarian, finalized, and dismissive of alternative perspectives.13 Wetlaufer echoes the observations of Ferguson and Rubinson and describes the rheto­ric of the law as a set of linked rhe­tori­cal commitments: “These include commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts.”14 According to Wetlaufer, the discursive norms of legal discourse follow from an antirhe­tori­cal stance that is deeply entrenched in the discipline of the law. It is important to emphasize that rhe­tori­cal genres exist not simply as repetitive forms but also as social action, aimed toward particular goals

4 / Introduction

that arise from recurring circumstances.15 As Karlyn Kohrs Campbell and ­Kathleen Hall Jamieson explain, “Genres of­ten exist in dynamic responsiveness to situational demands.”16 In this way, the systematic denial that defines the form and the function of legal voice—the law’s rhe­tori­cal posture of certainty and objectivity—may be understood as a response to the unique constraints that legal practitioners face. For Ferguson, “the monologic voice is the very type of the judiciary’s nonmajoritarian status in a demo­cratic republic. Unelected and largely unaccountable, the speaking judge must always respond to the fundamental inconsistency of imposing a separate authority on the demo­cratic process.”17 Read through this lens, the monologic voice of objectivity, abstraction, and closure may be understood as sharply strategic. A conceit of autonomy and a posture of certainty shield the normative predilections of judges and legitimize the law in the face of countermajoritarian difficulty. It is not surprising that feminist scholars have been criti­cal of the traditional voice of the law. The generic scripts that deny that the law is rheto­ ric also serve to hide the biases of legal language and exclude the perspectives and experiences of a wide multitude of Ameri­can citizens, in­clud­ing women. As Zillah Eisenstein explains, “The language of the law silences women.”18 The legal conventions of objectivity, abstraction, and closure are potent silencing scripts and have of­ten served to protect and privilege a masculinist perspective by framing patriarchal logics as natural and neutral. Finley describes how the norms of legal language prop up a masculinist perspective. She writes: “Legal language commands: abstract a situation from his­tori­cal, social, and po­liti­cal context; be ‘objective’ and avoid the lens of nonmale experience; invoke universal principles such as ‘equality’ and ‘free choice’; speak with the voice of dispassionate reason; be simple, direct, and certain; avoid the complexity of varying, interacting perspectives and overlapping multi-­textured explanations; and most of all, tell it and see it ‘like a man’—put it in terms that relate to men and to which men can relate.”19 Driven by the rhe­tori­cal commitments to objectivity, abstraction, and closure, the traditional voice of the law has of­ten served to defend an ideology of conservative constitutionalism and to protect the patriarchal status quo. Of course, these discursive commitments have also functioned to bolster a legal vantage point of interlocking privilege, propping up other logics of domi­nation, like whiteness and heteronormativity, to narrow the scope of our constitutional community. The patriarchal bias that is sheltered within the traditional voice of the law is plainly observed in the 1873 case of Bradwell v. Illinois—the first women’s rights case to come before the United States Supreme Court.20 A

Introduction / 5

close look at the rheto­ric of Bradwell v. Illinois illustrates how the generic scripts of legal discourse prove deeply problematic for advocates of women’s rights and underscores the exclusionary dynamics of the law’s voice. An examination of Bradwell v. Illinois also makes plain what Ruth Bader Ginsburg was up against as she set out to constitutionalize the equal citizenship of Ameri­can women and shift the rhe­tori­cal boundaries of the law.

Bradwell v. Illinois: Generic Scripts of Objectivity, Abstraction, and Closure The first women’s rights case decided by the United States Supreme Court challenged a sex classification as a violation of the Fourteenth Amendment for the first time in US history.21 Myra Bradwell was a dedicated activist for women’s equality, and her life pushed at the boundaries of what was socially acceptable for women in the nineteenth century. She founded the Chicago Legal News, the first weekly law journal in the Midwest, and she used the pages of her successful paper to argue for women’s equal property and employment rights, to push for legal reforms, and to urge state officials to end discrimination against women. In 1869, Myra Bradwell applied for a state license to practice law in Illinois—three months after Arabella Mansfield became the first woman to be granted a state law license by Iowa. Bradwell passed the Illinois bar exam, but the state of Illinois refused to issue her a license to practice law because she was a woman: Illinois state law prohibited all women from practicing law. The Illinois Supreme Court upheld the state’s objection to Myra Bradwell’s licensure. Speaking on behalf of the Illinois Supreme Court, Chief Justice Charles B. Lawrence trumpeted a masculinist bias when he flatly reasoned: “God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as almost an axiomatic truth.”22 Undeterred, Myra Bradwell took her case to the United States ­Supreme Court. Gwen Hoerr Jordan argues that Bradwell was one of the first women’s rights activists to “immediately [perceive] the potential of the new Fourteenth Amendment to emancipate women.”23 Indeed, Myra Bradwell insisted that the Privileges and Immunities Clause of the Fourteenth Amendment barred sex discrimination in employment and protected her eligibility, even as a married woman, to practice law in the state of Illinois. Justice Samuel Miller wrote the opinion for the United States Supreme Court and denied Bradwell’s claim on the Fourteenth Amendment, arguing that the new amendment did not protect anyone’s right to practice law. Justice Miller cited a decision the court had handed down just two days earlier, in

6 / Introduction

the Slaughterhouse Cases, which declared that the right to work in one’s chosen profession was not protected under the Fourteenth Amendment’s Privileges and Immunities Clause.24 Although the court’s majority opinion evaded the issue of sex discrimination, Justice Joseph P. Bradley seized the opportunity to write a concurring opinion that went far beyond the constitutional issues of the case to sanction a logic of separate spheres and advance an uncompromising view of Ameri­can women as sec­ond-­class citizens. The ideology of separate spheres operated upon assumptions of racial, economic, and heterosexual privilege that conflated womanhood with motherhood and championed a white domestic ideal. Despite the exclusionary nature of this logic, Justice Bradley defended the doctrine of separate spheres as a universal ideal and anchored the doctrine to the court’s jurisprudence of gender equality. Bradwell was the first of a long line of cases that would deny women protection against sex discrimination. A look at Justice Bradley’s con­cur­ring opinion demonstrates how the rhe­tori­cal commitments that have traditionally governed the language of the law—objectivity, abstraction, and closure—­easily upheld the logics of separate spheres to undermine the full and equal citizenship of Ameri­can women in the first women’s rights case to come before the United States Supreme Court. Justice Bradley’s opinion announced a commitment to objectivity at every turn. He proclaimed that the court’s decision to uphold Illinois’s exclusion of women from the legal profession simply followed the laws of nature, submitted to the predeterminations of destiny, and respected the rules of God. Bradley argued that the fundamental privileges and immunities of citizenship have never guaranteed women the right to participate in every profession of civil life. “On the contrary,” he asserted, “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”25 Bradley insisted that it was not the decisions of legislators or the judiciary but the inherent nature of women—their timidity and delicacy—that disqualified the so-­called weaker sex from a range of activities and occupations in the pub­lic sphere. “The constitution of the family organization,” he announced, “which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”26 Bradley’s rheto­ric demonstrates how the traditional voice of the law works to hide its patriarchal bias. Here, he points to the constitution of the family, to the

Introduction / 7

divine ordinance, and to nature to frame the court’s decision as absolutely sound and wholly objective. Justice Bradley’s declarative tone and rheto­ric of inevitability, two features that Ferguson describes as central to the genre of judicial opinion, combine in his voice of objectivity to obscure the masculinist bias of his reasoning and to frame the court’s decision as legitimate and unquestionable. Ferguson explains, “The one thing that a judge never admits in the moment of decision is free­dom of choice. The monologic voice of the opinion can never appear to act on its own. It must instead appear as if forced to its inevitable conclusion by the logic of the situation and the duties of office.”27 The script of objectivity that shapes the traditional voice of the law certainly functions to safeguard the myth of the disinterested and apo­liti­ cal judge. Beginning with Bradwell v. Illinois, this myth is particularly problematic in cases of women’s rights. Throughout the court’s history, the judicial voice of objectivity has called upon the topoi of God, of nature, and of science to undermine the full and equal citizenship of women while denying the law’s patriarchal bias. As Eisenstein puts it, “Law as a politics is made invisible by the inevitability of nature. The rule of law through nature masks the hierarchy it seeks to protect.”28 In the closing lines of his opinion, Bradley reiterates, “In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position.”29 And with that, Justice Bradley’s concurring opinion wrote the logic of separate spheres into the Fourteenth Amendment as an unquestionable and inevitable truth. A rhe­tori­cal commitment to abstraction also shapes the traditional voice of the law. Recall Lucinda Finley’s point that “legal language commands: abstract a situation from his­tori­cal, social, and po­liti­cal context.”30 Bradley’s opinion follows this script of abstraction to make sweeping generalizations and to advance a singular understanding of the nature, destiny, and mission of women. The commitment to abstraction refuses to consider the life of the law in context and assumes that citizens can be properly conceptualized as generalities—that a singular and universal notion of woman, for example, will justly and equally serve all women. This universalization of woman, of course, takes place through a number of exclusions that exalt the racial, economic, and heteronormative privileges that underpin the ideology of separate spheres. Justice Bradley’s abstract rheto­ric advanced a characterization of woman-­ as-­mother that refused to yield for those who did not fit within its confines. He argued, “It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married

8 / Introduction

state, but these are exceptions to the general rule.”31 The rhe­tori­cal commitment to abstraction demands that the general rule governs all while rendering the lives and experiences of many women inconsequential and invisible. An of­ten-­quoted line from Bradley’s opinion announces: “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”32 There is no room to account for those who do not meet Justice Bradley’s characterization of proper womanhood. Katharine Bartlett points to the consequences: “The tendency to treat woman as a single analytic category has a number of dangers. For one thing, it obscures— even denies—differences among women . . . especially in race, class, and sexual orientation that ought to be taken into account.”33 ­Kimberlé Crenshaw has also made this point plain, demonstrating how women of color are routinely erased by abstractions in legal language that singularly focus on women of race and economic privilege.34 The language of abstraction requires the erasure of voices, experiences, and contextual considerations that may challenge the absolute boundaries of the law. The result is a decontextualized and totalizing discourse that bolsters the authoritative and controlling voice of the judiciary. Justice Bradley’s abstract and singular depiction of woman as wife-­and-­ mother provided legal sanction to the argument that men and women were different and should be afforded different treatment under the law. Although the ideology of separate spheres had long been a staple of common law, cultural life, and religious teaching at the time that Myra Bradwell brought her case to the United States Supreme Court, Justice Bradley provided legal sanction to the ideology of separate spheres and to a universal understanding of woman as wife-­mother. The logic of abstraction that shouted from the pages of Bradley’s opinion framed all women as timid and delicate and belonging in the domestic sphere. This singular understanding of woman as different from men authorized legal grounds for affording women different treatment, different rights and responsibilities, and a different (sec­ond) class of citizenship under the law. Jordan explains, “During the first half of the century, the Court rejected claims of sex discrimination based on the Equal Protection Clause by claiming that discrimination based on sex was not arbitrary, but rational, because men and women weren’t equal.”35 The legal grounds of women’s difference would dominate court decisions on women’s rights and deny Ameri­can women the guarantees of citizenship that were promised by the Fourteenth Amendment for nearly one hundred years. A rheto­ric of closure is a third defining feature of judicial rhetoric. At

Introduction / 9

the time that Justice Bradley penned his now infamous opinion, legal classicism was the predominant ideology of judicial interpretation. This method of interpretation, still lauded in some conservative circles today, assumes that the Constitution is static—frozen in 1789—and requires judges to interpret the Constitution based on the origi­nal intent of the drafters.36 Legal classicism frames the law as a paradigm of closed discourse and “asserts a unitary and finalized sense of the world” that is all-­encompassing and unchanging.37 Despite the advances in women’s rights that were occurring in the late nineteenth century, Justice Bradley asserted a finalized view of women as incompetent pub­lic actors and as unable to perform important tasks of pub­lic life independently. Bradley’s voice of closure insisted that women will always be incompetent and incapable of many professional pursuits, in­clud­ing legal practice. He pointed to the common law of coverture to support his position: “So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that sys­tem of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.”38 Bradley asserted that the “cardinal principle” of coverture remained all-­encompassing and unchanging, despite recent advances in the civil status of some women. The generic script of closure animated Bradley’s language, and his rheto­ric echoed the certainty in the lower court’s framing of separate spheres as an “axiomatic truth.”39 But nowhere in Justice Bradley’s rheto­ric is this commitment to closure more striking than when he referenced ecclesiastic law to deny Myra Bradwell the right to pursue her profession. Looking backward, past the drafters of the Constitution to the supposed beginning of time, Justice Bradley lends his reasoning divine certitude and final closure, stating plainly: “This is the law of the Creator.”40 The rheto­ric of closure that shapes the traditional voice of the law has remained a fierce opponent of women’s affirmative rights cases since Justice Bradley wrote his sharp rebuke of Myra Bradwell’s claim to the privileges of equal citizenship in 1873. The monologic commitment to closure and the belief in fixed constitutional dicta require the disregard of societal evolutions and the dismissal of citizen voices that press the judiciary to acknowledge and respond to social change. In her briefs to the Illinois Supreme Court, Myra Bradwell pleaded for her case to be judged in light of the shifting po­liti­cal and social circumstances that had advanced thinking about the roles and responsibilities of women. She argued: “The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly ad-

10 / Introduction

mitted female physicians.”41 Bradley’s opinion agreed that many avenues for women’s advancement had recently been opened and assured his readers that movements for women’s advancement have his “heartiest concurrence.”42 Even so, his patriarchal reasoning pushed forward unaffected and unswayed: “But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, in­clud­ ing those which require highly special qualifications and demanding special responsibilities.”43 Bradley’s rheto­ric of closure insulated the court from citizen voices that were urging a broader recognition of women’s citizenship. Although movements for women’s rights were actively challenging the cult of domesticity and the logics of gendered spheres at the time Justice Bradley sat down to pen his concurring opinion, his rheto­ric of closure declared a fixity to women’s domestic destiny and professional incompetence that ignored the shifting landscape outside of the court and belied the possibility of women’s equal citizenship stature. Justice Bradley’s concurring opinion demonstrates how the rhe­tori­cal commitments that have traditionally governed the language of the law actively work against the recognition of women’s equal citizenship stature. The scripts of objectivity, abstraction, and closure function rhe­tori­cally to preserve the court’s masculinist bias, to permit the judiciary to ignore the lived and diverse experiences of women, and to encourage the disregard of citizen voices and societal shifts. It is important to point out, however, that the Supreme Court’s decision in Bradwell v. Illinois did not prevent women from practicing law in the United States. Angela Ray and Cindy Koenig Richards explain that despite the early losses for women’s rights in Bradwell v. Illinois and Minor v. Happersett, these cases brought gender discrimination into the open, where it could be publically contested. Cases like Bradwell, Ray and Richards contend, “performatively defined law as a site of struggle rather than a prescribed hegemonic order” and challenged the script of closure at the center of jurisprudential rhetoric.44 In fact, just a few years after Bradwell v. Illinois, Belva Lockwood worked with Myra Bradwell to pass a federal law that gave female lawyers the right to practice law in the federal courts. Belva Lockwood was admitted to the Supreme Court bar in 1879. One hundred years after Bradwell v. Illinois, Ruth Bader Ginsburg addressed the high court in the case of Reed v. Reed to continue the fight for women’s equal citizenship that Myra Bradwell, Belva Lockwood, and a long line of others fought before her. Ginsburg’s rheto­ric confronted the Supreme Court in Reed v. Reed to effectively challenge the precedent of separate spheres, the court’s equal protection jurisprudence, and perhaps most importantly, the patriarchal voice of the law.

Introduction / 11

Feminist Jurisprudence and the Necessity of an Alternative Legal Rhetoric As we see, the constitutive voice of the law in Bradwell v. Illinois was tightly bound to the generic commitments of objectivity, abstraction, and closure. Justice Bradley’s concurring opinion demonstrates Wetlaufer’s insight that the conventions of legal discourse, “those commitments, bear not just upon how we say the things we say, but also upon what we say, on what we are able to see, on what we are able to think, on what we are able to know and believe, and on who we are able to be.”45 The rhe­tori­cal landscape that follows from the law’s commitments to objectivity, abstraction, and closure disqualifies asking what some feminist scholars have described as “the woman question.”46 Legal scholar Katharine Bartlett explains, “Asking the woman question reveals the ways in which po­liti­cal choice and institutional arrangement contribute to women’s subordination. Without the woman question, differences associated with women are taken for granted and, unexamined, may serve as a justification for laws that disadvantage women.”47 The absence of the woman question—the failure to consider how juridical power may affect women’s lives differently or serve to silence and subordinate the diverse realities of women’s lives—is plainly seen in Justice Bradley’s blunt dismissal of Myra Bradwell and her plea for the full privileges of citizenship. Notably, Bartlett observes, “Within the judicial system, Myra Bradwell was one of the first to ask the woman question when she asked why the privileges and immunities of citizenship did not include, for married women in Illinois, eligibility for a state license to practice law.”48 What is especially revealing is how easily the United States Supreme Court dismissed the woman question in Bradwell v. Illinois. To be sure, the discursive traditions of the law have long functioned to shield the court’s masculinist bias from question and to disqualify the search for excluded voices and perspectives. A conference at Harvard Law School in 1978 brought the terms “feminism” and “jurisprudence” together for the first time. The conference was organized by women of Harvard Law School to celebrate the twenty-­fifth anniversary of the first female graduates of Harvard Law, in 1953.49 Although the speakers who were gathered together on a panel titled “Toward a Feminist Jurisprudence” concluded that there should not be a practice of feminist jurisprudence, the term quickly made its way into feminist legal scholarship and inspired a groundswell of feminist theorizing in the 1980s and 1990s that confronted the gendered nature of the law and explored the possibilities of an alternative jurisprudence. While distinct lines of thought

12 / Introduction

contribute to the deep complexities that animate contemporary theories of feminist jurisprudence, many feminist legal scholars identify the inclusion of women’s voices, perspectives, and experiences as a core aim of feminist jurisprudence. Martha Fineman argues, “Feminist methodology is about making theory more concrete, bringing stories and other ways of identify­ ing and describing women’s experiences as they exist and as they have been left out of the legal system.”50 Similarly, for Catharine MacKinnon, “feminist jurisprudence is an examination of the relationship between law and society from the point of view of all women.”51 Importantly, theorizing around the woman question in feminist jurisprudence has evolved toward a more open search for excluded perspectives writ large; many feminist scholars have become more careful not to generalize the experiences of women and instead attempt to capture the diversity of lives and perspectives marginalized by the law.52 As Angela Harris warned: “Just as law itself, in trying to speak for all persons, ends up silencing those without power, feminist legal theory is in danger of silencing those who have traditionally been kept from speaking, or who have been ignored when they spoke, in­clud­ing black women.”53 Importantly, the critique of classic feminist theory by Angela Harris, Kimberlé Crenshaw, and other voices of criti­cal race theory exposed the presumed universality of women that shaped early theories of feminist jurisprudence that were rooted in liberal theory, cultural theory, and dominance theory.54 In response to these exclusions, a growing number of feminist voices, in­clud­ing that of Mari J. Matsuda, have called for a jurisprudence of multiple consciousness—one that avoids gender essentialism and actively seeks to see the world from the standpoint of the oppressed.55 Voices of criti­cal race theory, LatCrit theory, feminist legal theory, and queer legal theory have joined Matsuda in her call for an “outsider jurisprudence,” one that seeks justice by bringing “attention to the experiences and perspectives of subordinated persons, communities, and peoples.”56 Toward this aim, Nancy Dowd and Michelle Jacobs assert that an antiessentialist feminist theory must be pluralistic, questioning, and contextual: “Its methods always ask the other question; it always looks to see who is present, who is speaking, who benefits, who has a set of priorities.”57 Importantly, the rhe­tori­cal study of Ruth Bader Ginsburg illuminates the relationship between the rheto­ric of the law and the possibility of an antiessentialist feminist jurisprudence in practice. Her judicial voice of skepticism, context, and responsiveness demonstrates that one productive road forward for theorizing feminist jurisprudence may be found at the foundational level of legal language. While the pages of this book document Ruth Bader Ginsburg’s in­di­ vidual achievements, it is important to emphasize that feminist jurispru-

Introduction / 13

dence needs a multitude of voices and requires a diversity of perspectives to make meaningful changes to Ameri­can law. Justice Ginsburg’s voice of feminist jurisprudence has pushed against the generic scripts of legal language for decades and has helped to create a discursive space for more voices of outsider jurisprudence to shape Ameri­can law. This is a central contribution of her feminist voice. And even though the following chapters look to the past to appreciate RBG as a trailblazing feminist voice, it is important that we also look forward, cognizant that feminist theory must continue to evolve, to adapt to new conditions, and to enlarge the scope of voices and experiences rendered meaningful through theories of outsider jurisprudence. As Patricia Cain argues, “Progress occurs in stages and legal change tends to be evolutionary rather than revolutionary. Feminist legal theory must be forever fine tuning itself to respond to each new stage in the evolutionary process.”58 The examination of Ruth Bader Ginsburg’s important legacy reveals her efforts to evolve and fine-­tune along the way, reminding us all that much work remains in the ongoing struggle for a more inclusive and demo­cratic law. There is an immediate and pressing need for a revived interest in feminist jurisprudence. For even as Justice Ginsburg speaks in a language of feminist jurisprudence from the nation’s highest bench, antifeminist laws and policies continue to endanger the physical and economic security of Ameri­ can women. The language that restricts access to reproductive health care, erodes protections for women and their families, excludes consideration of the rights of women in the most precarious communities, and continues to undermine the equal citizenship stature of many Ameri­can women calls out for more attention and rhe­tori­cal study. While feminist legal scholars have drawn on the tools and insights of other disciplines—economics, philosophy, history—to advance knowledge about the relationship between law and women’s rights, the following chapters demonstrate that the tools of rhe­tori­cal study and the insights gleaned through feminist rhe­tori­cal criticism have much to contribute to feminist jurisprudence and to a better understanding of the relationship between language, citizenship, and the law. Notably, Wetlaufer criticizes the enterprise of legal scholarship for remaining bound to the same discipline-­specific commitments that guide the law’s voice. This commitment to closure of­ten leads legal scholars away from the discipline of rheto­ric and the insights that rhe­tori­cal criticism may lend to a better understanding of the law. He argues, “Our primary purpose being the closure of controversy and the solution of problems, we look to disciplines that offer answers of that kind. In doing so, we turn a blind eye on some of the richest and most interesting scholarship that has ever been produced. We give a new meaning to blind justice.”59 Importantly, the rhe­tori­

14 / Introduction

cal study of Ruth Bader Ginsburg illuminates a language of feminist jurisprudence in practice. The following chapters demonstrate how the deep grain of traditional legal discourse pushes directly against the protection of women’s equal citizenship stature. Ruth Bader Ginsburg’s rhe­tori­cal legacy teaches that a commitment to speaking differently—against the generic conventions of legal discourse—may productively challenge the exclusionary dynamics of the law’s traditional voice and lead us toward a more just and fair law. The rhe­tori­cal study presented in the following chapters spans Ruth Bader Ginsburg’s legal career and traverses different forms of her legal argument—­ appellate brief, majority opinion, dissenting opinion—to illuminate how a challenge to the generic scripts of legal discourse sits at the center of her remarkable legal legacy. To appreciate Ruth Bader Ginsburg’s challenge to the traditional voice of the law, chapter 1 picks up after Bradwell v. Illinois and traces the generic commitments of the law through a trilogy of cases that continued the exclusion of women from equal citizenship through­ out the twentieth century. The voice of the law in Muller v. Oregon (1908), ­Goesaert v. Cleary (1948), and Hoyt v. Florida (1961) spoke with remarkable consistency to preserve the patriarchal bias of the law and to reaffirm the generic scripts of objectivity, abstraction, and closure. Analysis of these three cases illustrates how the rhe­tori­cal commitments of the law tightly controlled the production of legal knowledge surrounding women’s citizenship for nearly a century. The court’s decision in Muller v. Oregon upheld a law that restricted the hours that women could work in certain establishments and invoked the logics of Darwinism to classify men as a superior class of workers and able-­bodied providers. The court’s decision in Goesaert v. Cleary restricted the right of women to work once again and upheld a law that prohibited women from working as bartenders—unless their father or husband owned the establishment and could offer supervision and protection. And finally, the court’s decision in Hoyt v. Florida upheld a state law that exempted women from jury service, reasoning that the requirement of jury service burdened women, whose primary responsibility was in the home. Despite the vast po­liti­cal, economic, and social changes that occurred outside of the court between 1908 and 1961, the discursive borders of women’s citizenship held steady in each opinion. The monologic voice of the law characterized all women as radically different from men, cast all women as mothers, and described all women as needing protection and oversight. Analysis of these three cases also illustrates how the patriarchal logic embedded in the voice of the law intersects with logics of whiteness, heteronormativity, and economic privilege to compound the exclusionary borders of the law’s voice. The rhe­tori­cal landscape that emerged from Muller,

Introduction / 15

­ oesaert, and Hoyt stood as the foremost obstacle facing Ruth Bader GinsG burg as she joined the legal fight to constitutionalize women’s equality. Her fight to overturn the court’s precedent of sex discrimination would require her to confront the law’s traditional voice and to unmoor sex discrimination from the rhe­tori­cal scripts of objectivity, abstraction, and closure. Chapter 2 turns our attention to Reed v. Reed (1971), a significant turning point in the Supreme Court’s jurisprudence of gender equality. For the first time in history, the court struck down a law that discriminated against women in violation of the Equal Protection Clause. Then-­lawyer Ruth Bader Ginsburg was recruited by the Ameri­can Civil Liberties Union (ACLU) to write the appellate brief for Sally Reed, a mother who was denied the appointment to administer her deceased son’s estate by a state probate law that mandated a preference for men over women. At the time Ginsburg sat down to write the appellate brief for Sally Reed, there was no Supreme Court precedent to point to that affirmed women’s equal citizenship stature. Instead, Ruth Bader Ginsburg faced a long line of precedent beginning with Bradwell v. Illinois that insisted upon the sec­ond-­class status of Ameri­can women. To win the case for Sally Reed, Ginsburg had to challenge the authority of this line of precedent. She also had to challenge the traditional voice of the law. Chapter 2 demonstrates how Ruth Bader Ginsburg confronted the generic commitments of the law to present the case for a feminist jurisprudence in Reed v. Reed. Ginsburg’s brief became known as the “grandparent brief,” for, as Eleanor Ayer explained, “it was the ancestor of many future legal opinions on women’s rights.”60 Although the importance of Ginsburg’s grandparent brief has been recognized by historians of the court and legal theorists for its important role in shaping the court’s equal protection jurisprudence, the brief remains largely unexplored from a rhe­tori­cal perspective. Chapter 2 argues that Ginsburg’s grandparent brief introduced an alternative rheto­ric that exposed the patriarchal bias of the law, included the voices and experiences of women as valuable and necessary legal evidence, and advanced a vision of progressive constitutionalism. The influence of the Reed brief, perhaps its most significant contribution, is that it challenged the generic scripts of legal discourse and advanced an alternative set of rhe­tori­cal commitments that opened up the possibility for constitutionalizing the equal citizenship of Ameri­can women. Chapter 3 turns to Ruth Bader Ginsburg’s rheto­ric as a Supreme Court justice and analyzes her landmark majority opinion in United States v. Virginia (1996). In response to this case, the United States Supreme Court ruled that the Virginia Military Institute’s single-­sex admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. VMI is of­ten described as Justice Ginsburg’s most important majority opinion.

16 / Introduction

Ginsburg herself ranks VMI as the opinion she believes accomplished the most for women’s rights.61 Chapter 3 argues that the significance of United States v. Virginia is amplified when it is understood as central to Ruth Bader Ginsburg’s ongoing rhe­tori­cal effort to decenter the traditional voice of the law. Justice Ginsburg’s VMI opinion defied the generic scripts of legal discourse to defend a progressive constitutional vision. Her alternative rheto­ ric broadened the boundaries of equal protection analy­sis and strengthened its promise, authorizing a more rigorous standard of review for questions of sex discrimination and a corrective vision of equal protection. Chapter 3 also unpacks Justice Antonin Scalia’s dissenting opinion in United States v. Virginia as an exemplar of law’s traditional voice. Justice S ­ calia’s dissenting opinion underscores the plain fact that the rhe­tori­cal scripts of objectivity, abstraction, and closure constitute explicitly conservative parameters for making sense of the Constitution—parameters that celebrate the status quo and guarantee the controlling perspective of patriarchal bias. Understood next to Justice Scalia’s conservative judicial voice, the demo­cratic promise of Justice Ginsburg’s alternative rheto­ric is made plain: her feminist voice constitutes far more inclusive boundaries for imagining the scope of our constitutional community and for protecting the rights of groups whose experiences of Ameri­can citizenship are rooted in traditions of injustice and exclusion. Chapter 4 pivots to examine Justice Ginsburg’s rheto­ric in defense of women’s reproductive rights. While Ginsburg has won many legal victories through­out her career, her voice of dissent—which emerged forcefully in Gonzales v. Carhart (2007)—is central to her rhe­tori­cal legacy and is the reason she is celebrated today as the leading liberal voice on the modern Supreme Court. This chapter argues that her dissenting opinion in Gonzales v. Carhart confronted the conventional scripts of legal discourse to create a space in the language of abortion law to ask the woman question. Just as she challenged the boundaries of equal protection in United States v. Virginia, Justice Ginsburg’s feminist rheto­ric in Gonzales v. Carhart was transformative: it articulated an alternative equality rationale for reproductive rights, and it shifted the language of the law to legitimate the voices of women and the experiences of pregnancy traditionally excluded by the discursive borders of the law. From the pages of her 1971 grandparent brief to her 2007 Gonzales dissent, Ruth Bader Ginsburg has consistently challenged the abstract and unitary voice of the law; this is a cornerstone of her feminist jurisprudence. Justice Ginsburg’s feminist protest of the Gonzales decision directed the attention of courts, legislators, and a broader pub­lic to the reality that women are situated differently and that certain women are disproportionately harmed by abortion law in the United States. Although

Introduction / 17

feminist jurisprudence represents a complex and contested theoretical terrain, Justice Ginsburg’s judicial voice in Gonzales demonstrates that core feminist ideals—a recognition of the institutional nature of patriarchy, a validation of women’s equal and full personhood, and a respect for women’s varied lived experiences—can clearly be transformative when written into the language of the law. Chapter 5 concludes by considering the broad contributions of Ruth Bader Ginsburg’s rhe­tori­cal legacy. The close textual study of Ginsburg’s judicial voice helps to correct and clarify her feminist contributions and invites feminist scholars to consider the necessary role of linguistic dissent in theories of feminist jurisprudence. Importantly, the rhe­tori­cal study of Ginsburg’s legal arguments illuminates a language of feminist jurisprudence in practice. Her rhe­tori­cal legacy teaches that a commitment to speaking differently—against the generic scripts of legal discourse—may productively challenge the exclusionary dynamics of the law’s traditional voice and contribute to a more demo­cratic law. Justice Ginsburg’s dissenting opinion in Shelby County v. Holder (2013) is examined as a touchpoint to illustrate how her feminist jurisprudence reaches beyond the protection of women’s rights. When the conservative majority of the United States Supreme Court gutted the Voting Rights Act of 1965, reasoning that federal protections against discriminatory voting laws were no longer needed, Justice Ginsburg read a scathing dissent aloud from the bench. Ginsburg spoke with her signature voice of rhe­tori­cal action to draw attention to the failures of the high court’s reasoning and to dissent from the conservative rhe­ tori­cal boundaries of the court’s opinion. She criticized the court majority for its refusal to take seriously the deep and persistent history of racial discrimination in the United States. She condemned the court majority for its failure to admit that context matters—that an unremitting racial bias continues to infect some states more than others. And finally, she accused the court majority for its disregard of the Constitution’s equality guarantee. The following chapters demonstrate how Ruth Bader Ginsburg’s voice of linguistic dissent has performed radical work, challenging an entrenched genre of legal language to shift the discursive borders of women’s citizenship and promise a more demo­cratic law for those long excluded by the traditional scripts of legal language. Ruth Bader Ginsburg ranks among the most significant voices to advocate for women’s rights in the history of the United States. While Ginsburg’s brilliant legal strategy has earned her widespread recognition as the legal architect of the modern women’s movement, this book illuminates the central role of Ruth Bader Ginsburg’s rhe­tori­cal strategy in her efforts to secure historic legal and social change. Notably, Ginsburg’s legal strategy

18 / Introduction

has of­ten been characterized as incremental—as a step-­by-­step approach that is clearheaded about the constraints of working within the judicial sys­ tem and committed to the limits of the judicial role. While this is true, it is also true that beneath RBG’s measured legal strategy is a sweeping rhe­ tori­cal strategy that has boldly challenged the generic landscape of the law for nearly five decades. Across different forms of legal argument—appellate brief, majority opinion, and dissenting opinion—Ruth Bader Ginsburg has insisted upon speaking differently to challenge the exclusionary dynamics of the law’s traditional voice. In a recent interview, Justice Ginsburg was asked about the most satisfying aspect of her life’s work. Notably, her response reached beyond her contributions to women’s rights and pointed to the broad demo­cratic promise of her remarkable legacy. She said: “In my life, what I find the most satisfying is that I was part of a movement that made life better, not just for women. I think gender discrimination is bad for everyone, it’s bad for men, it’s bad for children. Having the opportunity to be part of that change is tremendously satisfying. Think of how the Constitution begins. ‘We the people of the United States in order to form a more perfect union.’ But we’re still striving for that more perfect union. And one of the perfections is for the ‘we the people’ to include an ever enlarged group.”62 Ruth Bader Ginsburg’s voice of linguistic dissent has reshaped how the Constitution speaks to gender equality and enlarged the Ameri­can promise of equal protection to all. The following chapters illuminate the contours of a rhe­tori­cal legacy that has pushed against the deep grain of legal discourse and transgressed the discursive boundaries of Ameri­can jurisprudence. As Dahlia Lithwick has said, “For anyone who wishes for the more radical, inflammatory, civil rights version of Ruth Bader Ginsburg at the Court, my suggestion is just this: she’s already there. You just need to listen more closely.”63 This book provides the opportunity to listen more closely to one of the most consequential voices in modern Ameri­can law. Ruth Bader Ginsburg is among the most skilled and significant voices in the history of Ameri­can rhetoric. The close rhe­tori­cal study of her judicial voice illustrates her profound contributions not only to women’s rights but also to the ongoing and important struggle toward a more perfect union and equal citizenship for all.

1

Judicial Rhetoric and Women’s Place The Legal Precedent of Separate Spheres

Nearly one hundred years would pass from the court’s ruling in Bradwell v. Illinois before Ruth Bader Ginsburg would launch her challenge to the traditional voice of the law in Reed v. Reed. During that time, the patriarchal voice of the law and the logics of separate spheres would gain strength and build precedent. Three cases are especially notable for their role in the continued exclusion of women from equal citizenship through­out the twentieth century: Muller v. Oregon (1908), Goesaert v. Cleary (1948), and Hoyt v. Florida (1961). Ruth Bader Ginsburg would later describe Muller, Goesaert, and Hoyt as “the trilogy of cases invoked most frequently to justify second-­ class status for women.”1 Indeed, these three cases reveal the ease with which the Ameri­can judiciary voiced a rheto­ric of objectivity, abstraction, and closure to undermine the rights and citizenship of Ameri­can women through­ out the twentieth century. The high court’s ruling in response to the 1908 case of Muller v. Oregon was especially significant. With the turn of the twentieth century, as industrialism increased opportunities for women to work outside of the home, advocates for single-­sex protective legislation asked the courts to rearticulate the boundaries of women’s sphere and to uphold laws that restricted the right of women to contract their labor in the pub­lic arena.2 The Muller court responded by invoking tropes of Darwinism and calling upon the unwavering limits of female physiology to write women’s difference and permanent inferior status into legal doctrine.3 Despite the shifting cultural landscape outside of the court, the Muller decision insisted that a woman’s place remained in the home. Muller, Goesaert, and Hoyt established a firm line of

20 / Chapter 1

precedent, not only for the constitutionality of sex discrimination but also for the traditional voice of the law, as the generic scripts of jurisprudential rheto­ric rang with certitude from the pages of each opinion to reassert the exclusionary logics of separate spheres and insist on the sec­ond-­class status of Ameri­can women. The Muller, Goesaert, and Hoyt trilogy echoed a cultural and legal landscape of sexism that served as the backdrop to Ruth Bader Ginsburg’s early life and legal education. The fierce resistance that Ginsburg faced as she entered law school was no doubt encouraged by a long line of legal precedent that championed sex-­specific spheres and insisted upon women’s inferior status. As Irin Carmon and Shana Knizhnik put it, “Early in her career, RBG wanted to work at a law firm, maybe teach a little. The world as it was had no room for her.”4 Ginsburg’s rhe­tori­cal legacy would blaze a trail toward changing this world and would challenge the genre of legal language that held it firmly in place. Ruth Bader Ginsburg enrolled in Harvard Law School in 1956, as one of only nine women in her class. As a law student, Ginsburg confronted the attitude that she did not belong—that she had trespassed the boundaries of gendered expectations and was beyond the limits of her appropriate sphere. There were no women’s restrooms in the main university building, the posted announcements for law firm interviews read “For Men Only,” and some professors held Ladies’ Day, where they would call on the few women in class and ask them humiliating questions.5 During her first semester at Harvard, the dean of the law school, Erwin Griswold, invited the nine women in Ginsburg’s class to a dinner at which he unabashedly asked each woman to explain how she justified taking a spot at Harvard Law that would have gone to a man. Despite the overwhelming sexism that she faced, Ginsburg excelled in her courses and earned a prized appointment to the Harvard Law Review. After transferring to Columbia University School of Law, she graduated tied for first in her class. Ruth Bader Ginsburg became the first female professor awarded tenure at Columbia Law School, in 1972. That year she cofounded the Women’s Rights Project at the ACLU and set out to overturn the Muller, Goesaert, and Hoyt trilogy. To appreciate Ruth Bader Ginsburg’s challenge to the traditional voice of the law, it is important to understand how the rhe­tori­cal scripts of objectivity, abstraction, and closure operated in Muller, Goesaert, and Hoyt to exclude Ameri­can women from the rights and responsibilities of full citizenship. These cases also urge us to consider a question posed by Gerald Wet­ laufer: “What is the relationship between the discipline-­specific rheto­ric of the law and the possibility of democracy?”6 A close look at the rhe­tori­cal scripts that shape the Muller, Goesaert, and Hoyt opinions teach us that the

Judicial Rhetoric and Women’s Place / 21

exclusionary traditions of legal discourse foreclose the possibility of a demo­ cratic law. Importantly, Ruth Bader Ginsburg’s rhe­tori­cal legacy speaks against the rhe­tori­cal traditions of the law to unmoor the legal imagination of women’s citizenship from the generic scripts of legal discourse and lead us toward a more just and inclusive law.

Muller v. Oregon (1908) The leading concern in women’s rights litigation for the first half of the twentieth century involved women’s rights in the workplace. One of the first cases of this kind to come before the high court was Muller v. Oregon (1908). The case began when the state of Oregon brought criminal charges against Curt Muller, the owner of the Grand Laundry in Portland, for requiring a woman to work overtime, in violation of a law that prohibited women from working more than ten hours a day in factories and laundries.7 Curt Muller appealed the judgments against him to the United States Supreme Court and the court ruled—unanimously—that Oregon’s single-­ sex law was constitutional. While many legal scholars have described the decision as a judicial landmark in labor reform, Nancy Woloch remarked, “Muller v. Oregon leads a double life in constitutional history, as both a step forward on the road to modern labor standards and a step backward away from sexual equality.”8 Although the broader aim of the Progressive movement was to improve the working conditions of all workers, it is clear that many advocates of single-­sex protective legislation were interested in eliminating competition from women and securing jobs and higher wages for working men only. In 1905, the Supreme Court decided Lochner v. New York and struck down a maximum-­hour law that restricted men from working in bakeries more than ten hours a day or sixty hours a week.9 The court announced that the men had a constitutional right to determine their in­di­vidual work hours.10 Three years later, when the court decided Muller v. Oregon, labor reformers found that the case for protective legislation was much easier to make for women. Associate Justice David J. Brewer penned the unanimous Muller v. Oregon opinion. Justice Brewer was a staunch conservative; he opposed state interference with the economy and firmly supported the free­ dom of contract for working men.11 The justice’s rhe­tori­cal task, therefore, was to justify restricting the right of women to work while not disrupting the free­dom of contract for men. Brewer embraced the rhe­tori­cal scripts of objectivity, abstraction, and closure to outline clear and sweeping differences between men and women in support of the following conclusion: “She is properly placed in a class by herself, and legislation designed for her protec-

22 / Chapter 1

tion may be sustained, even when like legislation is not necessary for men and could not be sustained.”12 Three decades after Justice Bradley proclaimed separate spheres to be a divine law of the Creator in Bradwell v. Illinois, Justice Brewer’s opinion marked a secular shift in the court’s rhetoric. Justice Brewer drew upon Darwinian themes—environmental stress, a struggle to survive, and competition over resources—to support the argument that men were the appropriate actors in the pub­lic arena of dangerous and difficult work and that women belonged on the periphery.13 Marouf Hasian Jr., Celeste Condit, and John Lucaites remind us that “the meaning of the law necessarily derives from the forms available in the rhe­tori­cal culture.”14 The Muller court’s move to cloak the doctrine of separate spheres in the scientific language of Darwinism certainly reflected the generic demand for objectivity and pointed to shifting rhe­tori­cal possibilities and constraints that faced the high court in a new century. Industrialism was causing social and economic changes, science was questioning the authority of religion, and a growing women’s movement was marching for suffrage and gaining influence. At a moment when the limits of the female sphere seemed open to doubt, the Supreme Court seized upon the authority of Darwinism to sanction the legal doctrine of gendered spheres as unwavering and unquestionable. Justice Brewer’s opinion rang with certitude as he exclaimed absolute conviction that men and women were different classes of workers. He proclaimed, “Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, [and] in the capacity of long-­continued labor.”15 The justice’s voice of objectivity—“many words cannot make this plainer”—­ certainly minimized the need for explanation and bolstered his sweeping assertions of sex difference.16 Brewer argued that the law must treat men and women differently because women’s health had a direct impact on “the future well-­being of the race.”17 He also announced that men ranked superior in their “self-­reliance, which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence.”18 The Muller v. Ore­gon opinion demonstrates how the rhe­tori­cal script of objectivity protects the male eye of the law. Justice Brewer leaned on Darwinian themes—“physi­cal strength,” “vigorous health,” “well-­being of the race,” “self-­reliance,” “struggle for subsistence”—to treat every assertion of sex difference that he wrote into the court’s ruling as scientific fact.19 There is a posture of inevitability that runs through­out the Muller opinion—­­a posture that is repeated in Goesaert v. Cleary and Hoyt v. Florida to frame the sec­ond-­class status of Ameri­can women as natural and unavoidable.20 This posture is evident in Brewer’s declaration that the reasons for re-

Judicial Rhetoric and Women’s Place / 23

stricting women’s free­dom to contract are “so important and so far reaching that the need for such reduction need hardly be discussed.”21 The opening lines of the Muller opinion are also revealing. Brewer argued, “That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious.”22 Justice Brewer’s announcement of inevitability—that the legal reasoning to follow was “obvious,” that it “need hardly be discussed”—elided the agentic status of the Supreme Court as a decision-­making body and framed the opinion’s controlling perspective of patriarchal bias as wholly objective.23 Robert Rubinson tells us that the monologic tendency of judicial rheto­ric embodies a “misleading veneer of certainty.”24 The Muller opinion surely illustrates this veneer, as the generic scripts of neutrality and inevitability operated to protect and defend the court’s blatant patriarchal bias. The court’s opinion followed the legal script of abstraction to frame all men as strong competitors, able providers, and appropriate actors in the pub­lic sphere of dangerous and difficult work and to characterize all women as potential mothers in need of government protection. To this end, the Muller opinion forwarded an essentialized vision of the female body as inferior and fragile. Justice Brewer pointed to the “copious collection” of evidence that long hours of work threatened women’s health, echoing evolutionary narratives that routinely described subsistence activities as off-­limits and dangerous to the so-­called weaker sex.25 His repeated reference to women’s “special physical organization” normalized the male body and further emphasized the female body as deficient and ill-­equipped for pub­lic labor.26 The Muller opinion also authorized the singular treatment of all women as potential mothers. The reason for restricting women’s work, Justice Brewer announced, “rests in the inherent difference between the two sexes, and in the different functions in life which they perform.”27 The court’s essentialist rhetoric fastened the primary value and purpose of all women to their wombs. Justice Brewer insisted that women’s role in reproduction, the “proper discharge of her maternal functions,” must be protected.28 The potential-­mother-­of-­the-­race argument in Muller affixed the primary framing of woman-­as-­mother to the legal imagination of women’s citizenship and sanctioned the law’s disregard of the in­di­vidual rights and personhood of Ameri­can women. Of course, Muller v. Oregon forecasted a long line of legal reasoning that would trumpet the legal characterization of woman-­ as-­mother to deny Ameri­can women full citizenship and equal personhood under the law. The Muller v. Oregon opinion illustrates how the discursive script of abstraction rests upon logics of privilege to outline a singular and universal view of woman. As discussed in the introduction, the ideal of sepa-

24 / Chapter 1

rate spheres was largely unobtainable to those outside of the white middle class, yet Muller v. Oregon followed Bradwell v. Illinois to forward the domestic mother as the universal and appropriate model of womanhood. It is important to keep in mind that the court’s apparent characterization of all women as “mothers of the race” was really a depiction of a specific population of women workers that was covered under the Oregon law: those employed in laundries and factories, who were predominately white.29 Beyond the scope of the court’s protection were women employed in agricultural and domestic jobs. Evelyn Nakano Glenn reports, “As late as 1910, 90.5 percent of all black women were farm laborers and servants” while “the actual manufacturing jobs were reserved for white women.”30 Glenn reminds us that the positions reserved for white women were cleaner, safer, better paying, and more secure, while racial and ethnic minoritized women faced jobs much more dangerous, low paying, insecure, seasonal, and dead-­end.31 The Muller court propped up its expressed concern for protecting maternal health with a rheto­ric of abstraction that universalized the experiences of white women while obscuring the more precarious working conditions endured by women of color at the turn of the century. The court’s “mothers of the race” rheto­ric also propagated an explicitly racist logic. Angela Davis places the phrase in his­tori­cal context: “White women were learning that as mothers, they bore a special responsibility in the struggle to safeguard white supremacy. After all, they were the ‘mothers of the race.’ Although the term race allegedly referred to the ‘human race,’ in practice, especially as the eugenics movement grew in popu­larity, little distinction was made between ‘the race’ and ‘the Anglo-­Saxon race.’ ”32 Although the court forwarded its reasoning through the discursive scripts of abstraction and universality, Justice Brewer’s “mothers of the race” rheto­ ric narrowly signified white women. The court’s Darwinian endorsement of the doctrine of separate spheres therefore provided not only a secu­lar endorsement of sexist ideology but also a modern sanction for racist and classist ideologies. Muller v. Oregon demonstrates how the court’s exaltation of motherhood—communicated through a universalizing rheto­ric of abstraction—intersected with logics of whiteness, heteronormativity, and economic privilege to advance a singular and exclusionary understand­ing of woman-­as-­mother in Ameri­can law. Finally, the Muller opinion exemplified a rheto­ric of closure as Justice Brewer announced women’s ever-­present need for male guidance and protective oversight. As Rosalind Rosenburg reminds us, “Darwinism is most of­ten described as an ideology in defense of the status quo.”33 It makes sense, then, that Justice Brewer would turn to Darwinism to naturalize the roles of the pub­lic man and the private mother and to frame his patriar-

Judicial Rhetoric and Women’s Place / 25

chal edict of rights and responsibilities as unalterable. Echoing the rheto­ ric of closure observed in Bradwell v. Illinois and pushing back against legal and cultural advances, Justice Brewer presented the sec­ond-­class status of Ameri­can women as wholly physiological, arguing that women would ­always lack “the self-­reliance which enables one to assert full rights.”34 Muller v. Oregon forwarded tight parameters for conceptualizing the subordination of Ameri­can women that inevitably circled back to deficiencies of the female body and mind.35 The following passage from the court’s opinion is revealing: “It is impossible to close one’s eyes to the fact that she still looks to her brother and depends on him. Even though all restrictions on po­liti­cal, personal and contractual rights were taken away, and she stood, so far as statues are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection.”36 The assumption that women’s nature forces women’s dependence elided consideration of oppressive economic, po­liti­cal, or social conditions that disadvantaged Ameri­can women at the turn of the twentieth century. Of course, the court’s characterization of all women as unable to bear the responsibility of equal rights justified the second-class status of American women and warranted their protection under paternalistic law. Judith Baer argues that the court’s Muller opinion had a devastating effect for women’s rights litigation, largely because of the permanence with which the court marked women’s dependence: “As precedent, Muller was able to become even more controlling in the area of sex equality than in the area of economic regulation. For more than sixty years, courts upheld nearly all cases of sex discrimination, citing this case as binding precedent, following its lead in emphasizing permanent rather than temporary, physical rather than economic or social, aspects of women’s condition.”37 The Muller opinion shifted rhe­tori­cal focus to women’s bodies—to essentialized notions of female physiology—to reaffirm the legitimacy of the female sphere. The most significant consequence of this corporeal shift is that it enshrined women’s dependence in the law; woman’s biology became legitimate grounds on which courts could deny women constitutional rights. In 1924, for example, Justice George Sutherland defended the decision in Radice v. New York, a decision that upheld the constitutionality of a law that forbade women from working late hours in the night. Sutherland asserted, “The language used by the Court in Muller in respect of the physical limitations of women is applicable and controlling.”38 Echoing Justice Brewer, a long line of decisions pointed to women’s bodies and emphasized the physical differences between women and men to restrict women’s rights. One of the most persistent references to the Muller opinion by later courts

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pointed to Justice Brewer’s description of women’s “special physical organization.”39 This continued long after the United States Supreme Court’s ruling in Muller v. Oregon was no longer controlling. The rhe­tori­cal boundaries that emerged from Justice Brewer’s voice of objectivity, abstraction, and closure provided a host of warrants that encouraged the restriction of women’s rights through­out the twentieth century. To progressive reformers, the Muller decision was a victory, especially because many believed that the 1905 Lochner v. New York decision had stalled the campaign for protective labor laws. Women’s activist groups who campaigned for protective legislation also cheered the court’s decision to protect women from long and strenuous hours of work.40 Single-­sex protection, however, meant that the court recognized women as a different class of workers from men. Although some women welcomed this “special” classification, Nancy Erickson explains, “in fact, at least one small group of feminists opposed ‘protective’ labor legislation upheld in Muller on the grounds that it had violated their ultimate principle of equality between the sexes.”41 Pointing to the long-­term implications, Amy Holtman French argues, “Gender-­ based labor laws further segregated the sexes and laid a foundation for sexual discrimination in the workforce that lasted through­out much of the twentieth century.”42 Indeed, the costs of emphasizing women’s difference would become exceedingly clear, as future courts would point to the objective, universal, and fixed voice of the Muller opinion to disqualify women from economic opportunities, to dismiss their value as jury participants, and to undermine women’s equal citizenship stature in a long line of cases.

Goesaert v. Cleary (1948) Four decades after the Supreme Court decided Muller v. Oregon, the court ruled to uphold the constitutionality of sex discrimination in the workplace once again. The plaintiffs in Goesaert v. Cleary—twenty-­eight women who worked as bartenders and tavern owners—sued the Michigan ­Liquor Control Commission for enacting the “Bartending Act,” which prohibited women from mixing alcoholic drinks in large cities unless their husbands or fathers owned the bar and could look after them.43 The patriarchal logics of separate spheres certainly animated this fight. The Bartenders’ Union advocated for the law, French explains, to “expel women from the more economically beneficial profession of bartending in order to keep men as breadwinners.”44 Fierce resistance to women bartenders in the mid-­twentieth century illustrates that the Ameri­can tavern was a gendered space—and there was a groundswell of pub­lic support for keeping it so. “Since the colonial period, Ameri­can taverns have been bastions of masculinity,” French

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asserts. “Bars served as polling stations for male voters, legal arenas, and as places where men gathered to discuss politics, economics, and other pub­lic matters.”45 Following the court’s decision in Goesaert v. Cleary to uphold the act, a column in the New York Times applauded the ruling, explaining that even though women had “invaded man’s last refuge, the bar, to be tolerated and accepted as patrons,” that certainly did not mean men would tolerate women behind the bar.46 Other newspapers concurred: “Who wants the hand that rocks the cradle mixing whiskey sours?”47 Another exclaimed, “Lady Bartenders? Not on your Martini!”48 Although the Supreme Court defended the logics of separate spheres in Bradwell v. Illinois and Muller v. Oregon, the plaintiffs in Goesaert v. Cleary asked the court to rethink the gendered binary it wrote into the law. French writes: “Their fight would require challenging gender norms regarding men’s work and position of power in the labor force, contest­ing bartenders’ control over higher wages, and disputing the need for protective laws for women.”49 Certainly, the law’s one exception—that the wives and daughters of male bar owners could tend bar—was rooted in a host of patriarchal logics that undermined the full personhood of women and placed the protection of women’s safety and female virtue in the hands of men. Justice Felix Frankfurter penned a short and dismissive opinion that followed the scripts of objectivity, abstraction, and closure. These scripts, of course, were well rehearsed at this point and anchored firmly to the court’s refusal to extend the protections of the Fourteenth Amendment to Ameri­ can women. Justice Frankfurter opened his opinion with reference to the plaintiff ’s claim: that Michigan cannot forbid women from working as bartenders and at the same time make an exception for the wives and daughters of male owners. The plaintiffs argued that this classification between women was unlawful. Frankfurter began, “Beguiling as the subject is, it need not detain us long.”50 Justice Frankfurter trivialized the plaintiffs’ claim from the start; he expressed amusement at the question before the court and framed the case as simple and straightforward. Frankfurter’s rheto­ric echoed the posture of inevitability observed in Muller v. Oregon, demonstrating, once again, how patriarchal bias easily masqueraded as objectivity when it received minimal scrutiny under the rational basis test. Frankfurter refused to look for bias or consider the discriminatory consequences of the Michigan law. He asserted: “Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight.”51 He continued, “This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford

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equal protection of its laws. We cannot cross-­examine either actually or argumentatively the mind of Michigan legislators nor question their motives.”52 It is important to emphasize Frankfurter’s reasoning here, as we see that any reason for discriminating against women is legitimate under the rational basis test—as long as it is entertainable. Indeed, Ruth Bader Ginsburg would later call the rational basis test the “anything goes” standard of review.53 Frankfurter refused to cast even the slightest skeptical glance in the direction of the Michigan legislature, instructing, “We cannot cross-­ examine nor question the motives” of the Michigan legislators.54 The rational basis test, as observed in Muller, Goesaert, and Hoyt, bolsters the court’s voice of objectivity and closes off any meaningful examination of pretext or unfair bias. Frankfurter concluded, “Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.”55 Justice Frankfurter’s rheto­ric of abstraction voiced sweeping generalizations about women’s nature and female virtue that reasserted women’s proper role as wife-­mother while disparaging the legitimacy of women as economic citizens. French reminds us, “Although many married women worked outside of the home in the 1940s, cultural norms dictated that the highest and most noble occupation for women—the one most befitting her sex—was housewife.”56 Frankfurter’s opinion opened with a colorful reference that immediately drew the character and virtue of the twenty-­eight plaintiffs into question: “We are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England.”57 Remarking on the court’s opening anecdote, Judith Bennett wrote: “Living hundreds of years and thousands of miles away from the ‘historic calling’ of alewives, Frankfurter drew on his cultural memory of them to conclude that women who serve liquor, especially those who are unsupervised by their fathers or husbands, are unruly, disruptive, and troublesome.”58 Frankfurter’s opening tale—far removed from the context and material conditions that gave rise to the equal protection claim brought by twenty-­ eight women in 1948—illustrates the court’s commitment to abstraction. The opinion’s depiction of the bawdy alewife reinforced the claim that female bartenders cause social and moral problems and tapped into a host of commonly deployed sex stereotypes that undermined the legitimacy of women’s economic labor and circumscribed their value to the home. ­Christie Sismondo explains, “Opponents of women behind bars argued that they couldn’t handle the potential violence of a barroom nor the complicated reci­pes for cocktails and, of course, that the pressure to earn a good tip

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might lead them astray. To others, it was plain unseemly.”59 The Goesaert opinion legitimated these concerns and marked the participation of women in this traditionally male space as a transgression—as an unseemly and hazardous risk to female virtue. The one way to minimize hazards to a barmaid, Justice Frankfurter’s patriarchal voice rang clear, was to require the protective oversight of her husband or father. Thus, the high court affirmed the legitimacy of the law, which prohibited women from bartending except in cases where their fathers or husbands were the bar owners and were available to protect women’s safety and virtue. The Goesaert decision bolstered the precedent of separate spheres; it reaffirmed that women had no guaranteed right to employment or occupational choice and it reiterated patriarchal tropes of protection that relegated the borders of women’s appropriate labor to the private sphere. Finally, Justice Frankfurter’s rheto­ric of closure assigned a permanence to women’s sec­ond-­class status in the workforce. Remarking specifically on the plaintiffs’ claim on the Equal Protection Clause, Justice Frankfurter retorted, “The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers.”60 The closing lines of Frankfurter’s opinion annunciated a conservative commitment to closure as he pushed back on the plaintiffs’ progressive reading of the Constitution. He announced, “The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.”61 Digging in deeper, Frankfurter proclaimed, “Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women.”62 He continued, “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic.”63 Echoing Justice Bradley’s rheto­ric in Bradwell v. Illinois and Justice Brewer’s rheto­ric in Muller v. Oregon, Justice Frankfurter reasoned that a sharp line between the sexes was constitutional and argued that the differences in the nature and roles of men and women were permanent and profound. At the time the court decided Goesaert v. Cleary, Ruth Bader G ­ insburg was a sophomore at James Madison High School in Brooklyn, New York— she was the treasurer of the Go-­Getters club, had received an English Scholarship Medal, and served as the feature editor of the school newspaper. “Growing up a Jewish woman in an age that privileged Christian men,” Scott Dodson tells us, “she listened with skepticism to the majoritarian,

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separate-­spheres justifications for that era’s social structures. She saw and heard the real impact of social inequality. Yet she also appreciated the unflagging ability of society to change, to evolve for the better.”64 Ten years after Justice Felix Frankfurter reasserted woman’s proper role as wife-­mother in Goesaert v. Cleary, Ginsburg had earned her undergraduate degree from Cornell University and graduated from Columbia Law School at the top of her class. When a distinguished Harvard Law professor recommended Ruth Bader Ginsburg to Justice Frankfurter as an excellent candidate to serve as his Supreme Court clerk, Frankfurter was aghast at the recommendation and flatly refused to work alongside a woman. Tellingly, Justice Frankfurter had never rejected a recommendation from a Harvard professor before. He told his male clerks that Ginsburg was a mother and insisted that a clerkship in his chambers was out of her league—“I work you guys very very hard,” he protested. Moreover, ever concerned with protecting female virtue, Justice Frankfurter reminded his clerks, “I do curse sometimes.”65

Hoyt v. Florida (1961) The court’s decision in Hoyt v. Florida affirmed the persistence of separate spheres as a governing logic of the court’s Fourteenth Amendment jurisprudence once again. While the sex-­based classifications upheld in Muller and Goesaert targeted women’s economic citizenship, Hoyt v. Florida directly undermined women’s demo­cratic participation. In this case, the court upheld a Florida law that exempted all women from jury service unless they registered with the county clerk and filed a written notice of their desire to serve. Men did not have this extra burden. The exclusion of women from jury service dated back to English common law and was the law in most Ameri­can states until the mid-­twentieth century.66 At the time that the court decided Hoyt v. Florida, three states—Ala­bama, Mississippi, and South Carolina—still prohibited women from jury service altogether.67 Opponents of women’s jury service reasoned from the logics of separate spheres and the accompanying cult of true womanhood, maintaining that women did not have the worldly experience to make educated decisions, that the indelicacies of the courtroom would compromise female virtue, and that jury service would interfere with women’s domestic responsibilities.68 The appellant in Hoyt v. Florida, Gwendolyn Hoyt, argued that Florida’s jury selection scheme violated her rights under the Fourteenth Amendment by unconstitutionally excluding women from jury service. ­Gwendolyn Hoyt killed her husband with a baseball bat following an argument over his infidelity. In 2008, Justice Ginsburg reflected on Gwendolyn Hoyt’s case, emphasizing that Hoyt was a victim of domestic violence: “Her phi-

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landering husband,” Ginsburg said, “had abused and humiliated her to the breaking point.”69 At her trial, Gwendolyn Hoyt pleaded temporary in­ sanity, but an all-­male jury convicted her of sec­ond-­degree murder. In her appeal, Hoyt argued that the Florida law operated to exclude women from jury service—only ten women appeared on the list of ten thousand eligible jurors in Gwendolyn Hoyt’s district. She claimed that female jurors would have been more understanding of the circumstances that led to her husband’s death. The state of Florida argued that most women could not serve on juries because of their family responsibilities and that placing women in the jury pool, and requiring that they file for a personal exemption to be removed, would result in an unreasonable administrative burden. The Supreme Court rejected Gwendolyn Hoyt’s claim and concluded that the sex classification in the Florida law was constitutional. Justice John Harlan wrote the majority opinion for the unanimous court, arguing that it was perfectly reasonable for the law to treat male and female jurors differently. Although Justice Harlan spoke with a monologic voice that echoed the Muller v. Oregon and Goesaert v. Cleary opinions, the connection between the court’s patriarchal commitment to separate spheres and the undermining of women’s equal citizenship was the most direct here—as the tropes of separate spheres were called upon to specifically exclude women from demo­cratic participation. Linda Kerber points to the sig­ nifi­cance: “Juries have long held a significant and powerful place in Ameri­can life. Like voting, jury service is one of the basic rituals by which Ameri­cans affirm their participation in society.”70 Justice Harlan’s opinion trivialized the importance of women’s participation in this ritual and re­affirmed their circumscription to the domestic sphere. He wrote, “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved for men, woman is still regarded as the center of home and family life.”71 Interestingly, Justice Harlan devoted little effort to justifying the logic of separate spheres that governed his opinion. Whereas Justice Bradley invoked the authority of higher law in Bradwell v. Illinois and Justice Brewer invoked the certainty of science in Muller v. Oregon, Justice Harlan drew upon a logic already vigorously defended by the voice of the law and firmly centered within the court’s rhe­tori­cal boundaries. In step with precedent and consistent with the patriarchal voice of abstraction, Justice Harlan’s rheto­ric invoked universal characterizations and sweeping generalities to encircle all women in the home. Justice Harlan’s repeated references to the “special responsibilities” of women reinforced the primacy of women’s domestic role while minimizing the importance and value of women’s civic participation. Harlan’s language echoed Justice Brew-

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er’s insistence in Muller v. Oregon that the law recognize and respect women’s “special physical organization.”72 The marking of women’s responsibilities and capacities as special, of course, bolstered the paternalistic stance of the High Court and justified treating women differently than men. Joanna Grossman’s reflection is instructive here: “The history of judicial treatment of sex-­based discrimination in jury selection systems reveals that, despite early recognition that jury service is an important aspect of citizenship, jury selection has been an area in which male judges and legislators have been particularly myopic in viewing women’s role. Undoubtedly, because of the historic importance given to the Ameri­can jury, women’s participation in the institution has been consistently minimized.”73 Justice Harlan denied any connection between women’s jury service and their citizenship stature. Instead, the court invoked the domestic ideal once again, along with all its exclusions, to suggest that the Florida law was helping women by excluding them from the burdens of equal civic participation. The rheto­ric of Hoyt v. Florida forwarded universal and abstract notions of women’s roles and responsibilities to continue a long history that excluded Ameri­can women from po­liti­cal participation, civic responsibility, and legitimacy in the pub­ lic sphere. Finally, a commitment to closure was just as controlling in Justice Harlan’s Hoyt opinion as it was in the Muller and Goesaert opinions. Notably, the rheto­ric of closure took a similar form in all three opinions. Each justice pointed to shifts and advancements in the position of Ameri­can women and then pivoted to declare that these advancements do not shift the judgment of the court, namely, that women’s primary importance and natural place is still in the home. Listen again to Justice Harlan: “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved for men, woman is still regarded as the center of home and family life.”74 Just like Justice Brewer and Justice Frankfurter before him, Justice Harlan’s opinion refused to yield to societal shifts and advancements in thinking about the rights and responsibilities of Ameri­can women. It is important to note that at the time the Supreme Court decided Hoyt v. Florida, twenty-­nine state laws called women to jury service with the same procedure that they called men.75 There was considerable movement in this direction. Still, Justice Harlan refused to take these advancements seriously or to rethink the ideology of separate spheres that trivialized the participation of women in the demo­cratic process. The commitment to closure that shaped the Hoyt v. Florida opinion is marked as profoundly more static and unwavering when we consider Justice Harlan’s rheto­ric within the broader context of the Warren court. Le-

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gal scholars and historians credit the Warren court for its role in issuing liberal decisions that brought about significant changes in Ameri­can society.76 Although the Warren court frequently incorporated societal shifts in its reasoning and embraced a progressive constitutionalism in many of its most important decisions, sex equality was clearly beyond the scope of the court’s vision of social justice. Indeed, the language of closure embedded into the court’s jurisprudence of sex discrimination through­out the twentieth century demanded a constitutional conservatism that the Warren court unanimously embraced in Hoyt v. Florida—a conservatism evident in Justice Harlan’s refusal to recognize any connection between the important role of jury service in a demo­cratic society and the citizenship stature of Ameri­can women.

Exclusionary Scripts: Limiting the Reach of the Fourteenth Amendment Throughout the twentieth century, the United States Supreme Court defended each sex classification it reviewed as perfectly reasonable and constitutionally sound. The voice of the law in Muller, Goesaert, and Hoyt—from 1908 to 1961—spoke with remarkable consistency to preserve the patriarchal bias of the law and reaffirm the generic scripts of objectivity, abstraction, and closure. The Muller, Goesaert, and Hoyt precedents demonstrate how easily the traditional voice of the law served to restrict the promise of the Fourteenth Amendment and trivialize the citizenship of Ameri­can women. It is important to emphasize that in each case, the high court denied the rhe­tori­cal character of the law. Jerome Frank offers an instructive insight about this denial. He observes, “The concealment of the human element in the judicial process, allows that element to operate in an exaggerated manner.”77 The monologic rheto­ric of Muller, Goesaert, and Hoyt illustrates this important point, as a sweeping and exaggerated voice of masculinist bias characterized all women as radically different from men, cast all women as mothers, and described all women as needing protection and oversight. With each ruling it handed down, the Supreme Court trumpeted the logics of separate spheres and invited a particular way of seeing the world that was wholly dismissive of women’s equal citizenship stature. The rhe­tori­cal boundaries that emerged from Muller, Goesaert, and Hoyt would stand as the foremost obstacle facing Ruth Bader Ginsburg as she joined the legal fight to constitutionalize women’s equality. One of the most harmful consequences of the separate spheres opinions was that they embedded an axiom of female difference into constitutional law. The court’s emphasis of woman’s difference—presented as objec-

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tive, natural, and unwavering—advanced the principle that sex was a valid basis for enacting special legislation and resulted in the legal treatment of women as a separate and sec­ondary class of citizens through­out the twentieth century. Justice Brewer’s proclamation in 1908 that “She is properly placed in a class by herself ” typified the binary rheto­ric at the center of the court’s separate spheres precedent that presented men and women as a natural duality. Cathy Davidson and Jessamyn Hatcher explain, “In separate spheres discourse, woman is distinct from and even opposite to man; nothing else counts. By this logic, woman is the one universal or stable category, and other attributes are transient or irrelevant.”78 The universalizing rheto­ ric of the Muller, Goesaert, and Hoyt opinions anchored women’s difference to their physiology and sanctioned female biology as legitimate grounds on which courts could deny women constitutional rights. Despite the social, economic, and po­liti­cal changes that shifted the cultural landscape outside of the court during the twentieth century, the monologic voice of the law was unwavering. In all three opinions, the court naturalized the pub­lic man/private woman binary and constituted women as ill-­suited for equal participation in the pub­lic sphere. Justice Brewer framed women’s participation in the workforce as a risky and dangerous threat to their physical well-­being, Justice Frankfurter framed women’s employment in bartending as an unseemly compromise to their feminine virtue, and Justice Harlan framed women’s participation in jury service as a burdensome interference in their domestic responsibilities. The rhe­tori­cal marking of women’s pub­lic citizenship as risky, trivial, and burdensome functioned to separate women from men, to undermine women’s equal citizenship stature, and to bolster the premise that motherhood and domestic duties remained women’s primary responsibility. The costs of emphasizing women’s difference were made plain as future courts pointed to the objective, universal, and fixed voice of the separate spheres opinions to repeatedly exclude women from the rights of full citizenship promised by the Fourteenth Amendment. Ruth Bader Ginsburg’s legal advocacy for women’s equal citizenship stature would effectively challenge the gender binary written into the law by Muller, Goesaert, and Hoyt. Her alternative voice of feminist dissent would urge the court to look more carefully at the injurious stereotypes sheltered by legal scripts of objectivity and would expose the patriarchal tradition of the law. Notably, on the United States Supreme Court, Justice Ginsburg continues to circle her legal arguments for women’s equality back to the patriarchal legacy of Muller, Goesaert, and Hoyt. Her skeptical judicial stance calls for a jurisprudence that is informed by his­tori­cal context, equipped to unearth pre-

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text, and committed to illuminating the traditions of injustice that are of­ ten shielded by the rhe­tori­cal scripts of the law. The rheto­ric of the Muller, Goesaert, and Hoyt precedent also endorsed a universal ideal of womanhood as domestic motherhood that was deeply exclusionary. This model of womanhood—propped up by raced, classed, and heterosexist logics—granted the high court license to ignore the positionalities and interests of a wide range of Ameri­can women. For example, the ideal of domestic motherhood failed to reflect the experiences of working-­ class women and disregarded how the realities of racism and poverty upend the neat perimeters of gendered spheres.79 Even so, each opinion spoke with the abstract and sweeping voice of the law to champion domestic motherhood as a universal ideal and to position the raced, classed, and heteronormative exclusions of the white domestic ideal at the center of the law’s interpretation of women’s citizenship. These exclusions help to explain why tropes of separate spheres and universal models of womanhood continue to inflict disproportionate harm on racial and ethnic minoritized women, on poor women, and on LGBTQ women when operationalized in the law and in pub­lic policy today.80 The rhe­tori­cal borders for imagining women’s citizenship that follow from the separate spheres precedent rendered the varying contexts of motherhood, of women’s labor, of women’s sexuality, and of domestic arrangement invisible and inconsequential to the law. The rhe­tori­cal borders that followed from Muller, Goesaert, and Hoyt also rendered the very personhood of women invisible to the law. The separate spheres opinions positioned motherhood as women’s proper telos and fixed women’s primary value to their rearing of children and to domestic responsibility. The potential-­mother-­of-­the-­race argument, as seen clearly in Justice Brewer’s rhetoric, undermined the personhood of Ameri­can women, treating women as means rather than ends.81 The implications of this narrow and singular framing are severe and continue to play out in contemporary rhetorics that justify infringing upon the personhood of Ameri­can women in order to restrict reproductive rights and minify reproductive justice.82 Ruth Bader Ginsburg’s advocacy for women’s equality would confront the abstract framing of woman-­as-­mother that the separate spheres opinions fastened to the legal imagination of women’s rights. On the United States Supreme Court, Justice Ginsburg’s alternative voice of feminist dissent continues to challenge the abstract and unitary voice of the law—to insist on the visibility of women’s lived experiences in legal argument and to demand a jurisprudence that is attentive to the life of the law in practice. These cases demonstrate how the patriarchal voice of the law defined and disciplined the borders of women’s citizenship through­out the twen-

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tieth century. As James Boyd White explained, judicial opinions are argumentatively constitutive. They proclaim, “Here, in this language, is the way this case and similar cases should be talked about.”83 The Muller, Goesaert, and Hoyt precedent insisted that “here, in this language,”—the exclusionary language of woman-­as-­different, woman-­as-­mother, and woman-­as-­ naturally-­subordinate—is the way that cases involving sex discrimination and women’s citizenship should be talked about. The high court embraced the antirhe­tori­cal scripts of legal discourse and normalized paternalistic law each time it defended the ideology of separate spheres, framing the discriminatory treatment of women as natural, necessary, and benign. The repeated claims of women’s natural dependence justified the masculine stance of protection at the core of the Muller, Goesaert, and Hoyt opinions and constitutionalized the notion that Ameri­can women needed protective oversight. The Muller, Goesaert, and Hoyt opinions also demonstrate how the monologic voice of objectivity, abstraction, and closure functions to protect and preserve a legal vantage point of interlocking privilege. As Mari J. Matsuda importantly emphasized, “No form of subordination ever stands alone.”84 To this point, the patriarchal logics observed in each of these opinions also reinscribed scripts of whiteness, heteronormativity, and economic privilege to compound the exclusionary borders of the law’s voice. The close rhe­tori­ cal study of Ruth Bader Ginsburg’s judicial voice demonstrates how her argument for women’s equal citizenship stature has skillfully confronted the privileged borders of legal language to forward an enlarged vision of equal protection. Importantly, Justice Ginsburg’s judicial voice continues to challenge discursive scripts of privilege on the United States Supreme Court to assert a more inclusive constitutional community and to strengthen the constitutional promise of equal citizenship for all. Ten years would pass between the Supreme Court’s decision in Hoyt v. Florida and the pathmarking brief that Ruth Bader Ginsburg would write to the United States Supreme Court in the case of Reed v. Reed. Although her expertise was initially in civil procedure, Ginsburg grew increasingly outraged at the sexism that plagued Ameri­can law and shifted her focus toward advocacy on behalf of women’s rights. In 1970, G ­ insburg taught the first class on women and the law at Rutgers University and cofounded the first law review dedicated to women’s issues, the Women’s Rights Law Reporter. Reflecting on her experience teaching law in the 1960s, Ginsburg described the blatant sexism she routinely encountered: “Law school text­books  in that decade,” Ginsburg explained, “contained such handy advice as ‘land, like woman, was meant to be possessed.’ ”85 Ruth Bader Ginsburg would respond by publishing the first casebook on sex discrimination. At Rutgers

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University, Ginsburg joined a federal class-­action pay-­discrimination lawsuit on behalf of the female professors against the university. They won. At Columbia University, Ginsburg led a similar class-­action lawsuit to end sex discrimination in the university’s compensation policies. She won again. When Ruth Bader Ginsburg joined the Ameri­can Civil Liberties Union to lead the Women’s Rights Project, she prepared a list of four cases that she would fight to overturn. Unsurprisingly, her list targeted Bradwell v. Illinois, Muller v. Oregon, Goesaert v. Cleary, and Hoyt v. Florida.86 Virtually all of the cases she argued through the ACLU’s Women’s Rights Project would involve a challenge to the separate spheres precedent and the gender binary it endorsed. Ginsburg’s fight to reverse the court’s precedent of sex discrimination and to change the legal status of Ameri­can women would require her to confront the law’s traditional voice and to unmoor the legal imagination of women’s citizenship from the generic rhe­tori­cal scripts of objectivity, abstraction, and closure.

2

Advancing a Language of Feminist Jurisprudence

Reed v. Reed and Ruth Bader Ginsburg’s Grandparent Brief

Reed v. Reed marks an important turning point in the Supreme Court’s juris­prudence of gender equality. In response to the 1971 case, and for the first time in history, the court struck down a law that discriminated against women in violation of the Equal Protection Clause. The vice president of the National Women’s Law Center explains, “The Supreme Court hadn’t heard a lot of gender discrimination cases prior to Reed v. Reed, but those that it had heard were very different in tone in the decisions.”1 Indeed, from Bradwell v. Illinois through Hoyt v. Florida, the Supreme Court’s tone—its unabashedly patriarchal voice and monologic rhetoric—undermined women’s full and equal citizenship each time a woman brought a Fourteenth Amendment challenge before the high court. Before Reed, Ruth Bader Ginsburg remarked years later, “the Supreme Court never saw a sex classification it didn’t like.”2 Reed v. Reed presented the opportunity for Ginsburg to confront this enduring patriarchal tradition. Mary Harnett and Wendy Williams recently emphasized the significance of the many briefs that Ruth Bader Ginsburg submitted to the high court in the 1970s. “Starting with Reed,” they wrote, “she, more than any other lawyer, shaped the legal arguments reflected in the Court’s opinions, earning her the honorific ‘the ­Thurgood Marshall of the women’s movement.’ ”3 Ruth Bader Ginsburg’s feminist voice reshaped the legal imagination of Ameri­can women’s citizenship. Her Reed brief served as a bold opening argument, skillfully confronting the generic commitments of the law to present the case for a feminist jurisprudence.

A Language of Feminist Jurisprudence / 39

Reed v. Reed challenged an Idaho statute that preferred men to women as administrators of estates. The case was quite simple: it involved a dispute between the separated parents of Richard Lynn Reed, a teenage boy from Idaho who died from an apparent suicide. Richard’s mother, Sally Reed, applied to be named the administrator of her deceased son’s estate. A few days later, Richard’s father applied for the same appointment, telling Sally that she was “too dumb” to take on the responsibility.4 Idaho gave the appointment to Richard’s father, in accordance with the Idaho Code, which read: “As between persons equally entitled to administer a decedent’s estate, males must be preferred to females.”5 Remarking on Sally Reed and her case, Ginsburg said, “She probably did not think of herself as a feminist, but she had the strong sense that her state’s law was unjust. And I sensed that she would prevail.”6 Ruth Bader Ginsburg was a law professor at Rutgers University when she was recruited by the Ameri­can Civil Liberties Union to develop a litigation strategy and write the brief for Sally Reed. While Sally Reed’s origi­ nal Idaho attorney argued her case before the court, Ginsburg developed the arguments and coauthored the brief along with Mel Wulf, the legal director of the Ameri­can Civil Liberties Union. Fred Strebeigh lends understanding to Ginsburg’s significance to the case, explaining, “Briefs, of­ten more than oral arguments, win cases at the Supreme Court.”7 Forty years after the court’s decision in Reed v. Reed, Justice Ginsburg reflected upon the legacy of the appellate brief she authored for Sally Reed, remarking, “I regard Reed v. Reed as the grandparent brief. We had many other cases before the Court in the seventies. They were all variations on the same theme. A law that provides males must be preferred to females does not recognize women’s equal citizenship stature.”8 Ginsburg’s eighty-­eight-­page Reed brief challenged a century of precedential logic that affirmed the inherent difference and subordination of Ameri­can women. It became known as the grandparent brief because, as Eleanor Ayer explained, “it was the ancestor of many future legal opinions on women’s rights.”9 Following her victory in Reed—the court’s decision was unanimous in favor of Sally Reed—the ACLU hired Ruth Bader Ginsburg to found and direct the Women’s Rights Project. Ginsburg took part in thirty-­four cases that were brought to the high court during her ten years of work for the Women’s Rights Project. Her legal advocacy in the 1970s, as Fred Strebeigh described, “was making the most profound attack on sexist law in the history of the Ameri­can legal system.”10 Ruth Bader Ginsburg’s pathmarking grandparent brief presented the case for a feminist jurisprudence and planted the seeds of a rhe­tori­cal strategy she would pursue to fight for

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women’s rights, as a lawyer and advocate for the Women’s Rights Project and, eventually, as a justice on the United States Supreme Court. Considering Ginsburg’s rhe­tori­cal strategy within the his­tori­cal context of the United States Supreme Court—recognizing that the court decided Hoyt v. Florida just ten years before hearing Reed v. Reed and had never ruled a sex-­based classification unconstitutional—highlights her inventiveness and skill as a rhetor. Kathleen Sullivan reminds us, “The litigation strategy of Ruth Bader Ginsburg and other feminist constitutional lawyers contributed significantly to women’s equality despite a paucity of constitutional materials; indeed, the series of equal protection results that began with Reed v. Reed resemble a cookbook on what to cook when there’s nothing in the kitchen.”11 At the time the court was presented with Sally Reed’s argument, there was no Supreme Court precedent to point to that affirmed women’s equal citizenship. Instead, Ruth Bader Ginsburg faced a long line of precedent beginning with Bradwell v. Illinois that insisted upon the sec­ond-­class status of Ameri­can women. To win the case for Sally Reed, she had to challenge the authority of this line of precedent. She also had to challenge the traditional voice of the law. The traditional voice of the law—as we observed in Muller, Goesaert, and Hoyt—serves to protect the patriarchal status quo and to silence the voices and experiences of Ameri­can women. Gerald Wetlaufer observes, “In this measure, [the law’s] rhe­tori­cal commitments work to disempower the already powerless, to reinforce the existing distribution of power and wealth, to prove wrong those who question the legitimacy or neutrality of the existing system, and to marginalize the voices of opposition.”12 Feminist scholars insist upon the need for an alternative language—a feminist jurisprudence that will legitimate the voices, experiences, and rights of groups that are rendered invisible by the conventional boundaries of legal discourse. For many feminist scholars, asking the “woman question” or seeking out the ways the law may submerge the positionalities and lived experiences of women and other marginalized groups is a necessary starting point for feminist jurisprudence.13 Katharine Bartlett explains: “Once adopted as a method, asking the woman question is a method of critique as integral to legal analy­sis as determining the precedential value of a case, stating the facts, or applying law to facts. ‘Doing law’ as a feminist means looking beneath the surface of law to identify the gender implications of rules and the assumptions underlying them and insisting upon applications of rules that do not perpetuate women’s subordination. It means recognizing that the woman question always has potential relevance and that ‘tight’ legal analy­ sis never assumes gender neutrality.”14 Today, many feminists call for a jurisprudence that pushes beyond the

A Language of Feminist Jurisprudence / 41

woman question to embrace a more encompassing question of the excluded. This is an important shift, reflecting a move away from essentialist theories and an effort to make a broader range of citizenships and position­ali­ ties visible in Ameri­can law. It is also important to keep in sight that in the context of 1971—in the wake of the patriarchal precedent of Bradwell, Muller, Goesaert, and Hoyt—asking the “woman question” confronted the very boundaries of legal discourse. Dissenting from the rigid and exclusionary boundaries of Ameri­can legal discourse, as Ginsburg did in 1971, was an important step to widen the lens of legal imagination and create the discursive space for a broader enactment of feminist jurisprudence today. Feminist legal scholar Judith Baer provides important insight when she explains that a feminist jurisprudence must begin “with a willingness to break the rules.”15 The rheto­ric of the grandparent brief certainly broke the generic rules of legal discourse—Ruth Bader Ginsburg asked the woman question. Her brief exposed the patriarchal bias of the law, introduced the voices and experiences of women as valuable and necessary legal evidence, and advanced a vision of progressive constitutionalism. The influence of the Reed brief, perhaps its most significant contribution, is that it challenged the generic scripts of legal discourse and advanced an alternative set of rhe­ tori­cal commitments—to skepticism, context, and responsiveness. Ruth Bader Ginsburg’s language of feminist jurisprudence shifted the court’s available means of persuasion and opened the possibility—at long last—for constitutionalizing the equal citizenship of Ameri­can women.

A Rhetoric of Skepticism: Exposing the Patriarchal Bias of the Law Ruth Bader Ginsburg’s grandparent brief was shaped by a rheto­ric of skepticism that exposed a history of bias in the Ameri­can legal sys­tem and documented the harm that injurious stereotypes have inflicted on the equal rights and citizenship of Ameri­can women. While the liberal tradition of the law extols the high court as objective, impartial, and gender neutral, a feminist jurisprudence seeks to unmask the myth of law’s gender neutrality.16 To this aim, Ginsburg’s argument confronted the his­tori­cal record of law’s patriarchy and documented the overwhelming force of the law that was directed toward keeping women in their place. Ruth Bader Ginsburg’s historic brief took direct aim at the Ameri­can judiciary for its role in the subordination of Ameri­can women. At the outset of her argument she announced, “Prior decisions of this Court have contributed to the separate and unequal status of women in the United States.”17 She used the phrase “separate and unequal” to encourage the court to under-

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stand sex discrimination and race discrimination similarly—and to remind the court of its embarrassing decision in Plessy v. Ferguson. She wrote: “Very recent history has taught us that, where racial discrimination is concerned, this Court’s refusal in Plessy v. Ferguson, 163 U.S. 537 (1896), to declare the practice unconstitutional, reinforced the institutional and po­liti­cal foundations of racism, made it more difficult eventually to extirpate, and postponed for fifty-­eight years the inevitable inauguration of a national commitment to abolish racial discrimination.”18 The race analogy that runs through­out Ginsburg’s argument was a strategy crafted by a diverse number of feminist legal scholars after the court’s denunciation of racial segregation in Brown v. Board of Education (1954). Ginsburg was inspired by the work of Pauli Murray, a civil rights activist who published a classic article titled “Jane Crow and the Law” that described intersections of race and gender oppression.19 Pauli Murray fought to overturn Hoyt v. Florida alongside fellow ACLU attorney and feminist activist Dorothy Kenyon by drawing a connection between racism and sexism. The argument that Ginsburg borrowed from Murray and Kenyon raised the stakes of Reed in the opening pages of the brief and suggested that the court could choose to sanction discrimination, as it shamefully did in Plessy v. Ferguson, or the court could defend the equal citizenship of women, as it did for Af­ri­can Ameri­cans in Brown v. Board of Education. The comparison supported Ginsburg’s call for the recognition of women as a suspect class.20 She boldly argued: “Both classes have been defined by, and subordinated to, the same power group—white males.”21 It is important to point out that Ginsburg would soon stop making this argument, as she, in her own words, “became more sensitive to the distinctions—that all oppressed people are not oppressed in the identical way or to the same degree.”22 Notably, however, Ginsburg included the names of Pauli Murray and Dorothy Kenyon on the cover of her Reed brief. This move recognized the contributions of their pioneering work and reflected a core commitment of her feminist jurisprudence—the valuing of women’s voices as necessary to the interpretation of constitutional law. The Reed brief documented a long history of discrimination against women in the United States. Ginsburg pointed to the patriarchal heritage of common law, she quoted Alexis de Tocqueville’s observations of Ameri­can women’s confinement to the private sphere, and she cited nineteenth-­century pub­lic argument that vehemently opposed women’s suffrage.23 Gins­burg traced a long tradition of sex discrimination back to the nation’s found­ing, writ­ing: “Her position in this country at its inception is reflected in the expression of the author of the declaration that ‘all men are created equal.’ ”24 Ginsburg quoted Thomas Jefferson to emphasize the blatant sexism that ex-

A Language of Feminist Jurisprudence / 43

cluded women from equal citizenship at the founding. Jefferson proclaimed, “Women should be neither seen nor heard in society’s decision-­mak­ing councils. Were our state a pure democracy there would still be excluded from our deliberations women, who, to prevent deprivation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.”25 The framing of women’s pub­lic citizenship and demo­cratic participation as morally problematic was a common argument for enforcing the ideology of separate spheres. While the Reed brief rooted the containment of women’s citizenship in the founding, Ginsburg exposed what contemporary eyes would surely recognize as sexist and antiquated reasoning, thereby raising suspicion of the sex-­based classification before the court in Reed v. Reed. Importantly, the Reed brief emphasized that discrimination against American women was not always blatantly sexist but was of­ten disguised as benign and protective. Ginsburg spotlighted a senator’s comments from an 1866 debate in congress to emphasize how sex discrimination has long been defended as natural and divinely ordained. Senator Frelinghuysen of New Jersey asserted, “It seems to me as if the God of our race has stamped upon [the women of America] a milder, gentler nature, which not only makes them shrink from, but disqualifies them for the turmoil and battle of pub­lic life. They have a higher and holier mission. . . . Their mission is at home, by their blandishments and their love to assuage the passions of men as they come in from the battle of life, and not themselves by joining in the contest to add fuel to the very flames. . . . It will be a sorry day for this country when those vestal fires of love and piety are put out.”26 The Reed brief made clear to the court that sex discrimination is of­ten framed as benevolent protection. Urging a more skeptical jurisprudence, Ginsburg quoted Sail’er Inn, Inc. v. Kirby, which cautioned, “The pedestal upon which women have been placed has all too of­ten, upon closer inspection, been revealed as a cage.”27 Importantly, Ginsburg’s Reed brief modeled a jurisprudence of closer inspection as she exposed how masculinist bias and patriarchal tropes of women’s difference have contained the citizenship of Ameri­can women for far too long. Her rheto­ric urged the Supreme Court to follow her lead and commit to closer inspection—to a more rigorous and skeptical review of sex-­based classifications. The grandparent brief then turned to demonstrate how the ideology of separate spheres was written into contemporary law. Ginsburg anchored the subordination of Ameri­can women to the legal sys­tem as page after page of her brief documented the “legal roots of sex-­based discrimination,” “law-­ sanctioned obstacles,” and “centuries of law sanctioned bias” that “[limit] the opportunities available to women for participation as full and equal members of society.”28 Ginsburg’s reasoning asked the woman question;

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her feminist jurisprudence confronted patriarchal notions of women’s nature and gender difference that were folded into the law’s script of objectivity. Bartlett illuminates the significance: “Asking the woman question reveals the ways in which po­liti­cal choice and institutional arrangement contribute to women’s subordination. Without the woman question, differences associated with women are taken for granted and, unexamined, may serve as a justification for laws that disadvantage women.”29 Pushing against a rhe­tori­cal tradition that naturalized the subordinate citizenship of women, Ruth Bader Ginsburg’s rheto­ric repeatedly emphasized the primary role of the law in creating and maintaining the sec­ond-­class status of Ameri­can women. Throughout the grandparent brief, Ruth Bader Ginsburg attacked the singular consideration of woman-­as-­mother that narrowed the legal imagination of Ameri­can women’s citizenship. She reviewed a number of laws organized under the subheadings Male as Head of Household and Women and the Role of Motherhood to conclude that “the traditional division within the home—father decides, mother nurtures—is reinforced by diverse provisions of state law.”30 The man-­as-­breadwinner/woman-­as-­homemaker binary, Ginsburg argued, trivialized women’s value outside of the home and undermined their equal citizenship stature.31 She stated unequivocally, “Beyond doubt, the status of women in the labor force is separate and unequal.”32 The Reed brief detailed the challenges that women face in the workforce—significant wage gaps, sex-­stereotyped occupations, tax laws that disincentivize married women from working outside of the home, insufficient childcare deductions, and a “deplorable shortage of child care facilities.”33 The law’s reductive view of women-­as-­mothers, Ginsburg pressed upon the court, is responsible for “massive discrimination” against women’s participation in the pub­lic sphere.34 The rheto­ric of skepticism that shaped the Reed brief forwarded a vivid context of patriarchal bias. Importantly, Ginsburg’s feminist jurisprudence insisted that the Supreme Court review Sally Reed’s complaint within this context. The Idaho Supreme Court’s response to Reed v. Reed followed the generic script of objectivity to rule against Sally Reed. Echoing the rheto­ric of Muller, Goesaert, and Hoyt, the lower court concluded that “nature itself has established the distinction” between men and women.35 The Idaho court, Ginsburg protested, “justified the discrimination challenged here by finding it ‘rational’ to assume the mental inferiority of women to men.”36 This assumption, she declared, “demands swift condemnation of this Court.”37 The trail of bias exposed by the Reed brief certainly urged the swift condemnation of a whole host of patriarchal tropes that routinely found shelter in the law’s traditional voice. The Reed brief insisted that women have “an in-

A Language of Feminist Jurisprudence / 45

terest in treatment by the law as full human personalities”—not only as caretakers within the confines of the domestic sphere but as competent administrators, valuable laborers, and equal pub­lic citizens.38 Ruth Bader Ginsburg continued her assault on the law’s myth of gender neutrality in one of the most important sections of the brief, arguing that the United States Supreme Court was particularly culpable in the subordination of Ameri­can women. Amy Campbell argues that “the major hurdle in Reed was the necessity of explaining why pertinent, yet disturbing prece­ dents should not be controlling.”39 Ginsburg tackled the precedential tradition of separate spheres in a section of the brief subtitled Muller, Goesaert and Hoyt. As described in chapter 1, she began this section by designating Muller, Goesaert, and Hoyt as “the trilogy of cases invoked most frequently to justify sec­ond class status for women.”40 After dismissing Muller v. Ore­ gon as irrelevant to the constitutional issues presented in Reed, Ginsburg turned to Goesaert v. Cleary, the 1948 ruling that upheld a law prohibiting women from bartending. She argued, “The majority opinion in Goesaert reflects an antiquarian male attitude towards women—man as provider, man as protector, man as guardian of female morality. While the attitude is antiquarian, unfortunately it is still indulged even by persons who would regard as anathema attribution of inferiority to racial or religious groups. But however much some men may wish to preserve Victorian notions about woman’s relation to man, and the ‘proper’ role of women in society, the law cannot provide support for obsolete male prejudices or translate them into statutes that enforce sex-­based discrimination.”41 Ginsburg rooted the Goesaert ruling in “male prejudices” and characterized the opinion’s masculinist bias as “antiquarian,” “Victorian,” and “obsolete” to undermine the legitimacy of its precedential logic.42 Sex stereotyping runs through­out high court precedent, the Reed brief proclaimed, and has repeatedly been turned against women like Sally Reed who seek equal treatment in the pub­lic sphere. While the antirhe­tori­cal voice of the law asserts its authority by proclaiming to be disinterested and apo­liti­cal, the Reed brief destabilized this authority and unhinged the hold of the court’s precedent by exposing how bias and prejudice has governed the logic of sex-­based classifications to unjustly subordinate Ameri­can women for far too long. Turning to Hoyt v. Florida, the 1961 decision that upheld the exemption of women from jury service, Ginsburg emphasized the words of Supreme Court Justice John Marshall Harlan, who insisted: “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.”43 She responded, “While an image of woman, first and pre-

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dominantly as keeper of the hearth, might have been expected from jurists writing at the turn of the century, it is disquieting to find the antiquated stereotype repeated so late in the day.”44 Unsettling the stereotype further, she explained, “Even in times past, when the absence of family planning and effective birth-­control devices restricted options for most women, many by choice or fortune did not play the role of mother-­wife.”45 Ginsburg took direct aim at the narrow consideration of woman-­as-­mother that had governed the high court’s negotiation of women’s citizenship since Bradwell v. Illinois and condemned the universal characterization of all women as mothers as not only antiquated and inappropriate but also deeply exclusionary. The Muller, Goesaert, Hoyt section concluded by pointing to the sharp consequences of sex-­stereotyping that followed from the Supreme Court’s precedent. Ginsburg quoted a New York judge who told a woman in 1970 that she was “in the wrong forum” for challenging a law that limited women’s jury service. The judge relied on the precedent of sex-­stereotyping in Hoyt v. Florida to support his decision. Ginsburg wrote: “Less chivalrous than this Court, but more accurately reflecting the impact of the stereotype, the judge stated that plaintiff ’s ‘lament’ should be addressed to her sisters who prefer ‘cleaning and cooking, rearing of children and television soap operas, bridge and canasta, the beauty parlor and shopping, to becoming embroiled in plaintiff ’s problems.’ ”46 Here, the Reed brief revealed just how severely the pub­lic citizenship of women is undermined by the patriarchal logics of Supreme Court precedent. While the generic scripts of the law routinely presented discrimination against women as gender neutral and benign, Ginsburg introduced a context of discrimination against women that boldly exposed the male bias of the law, raising suspicion of the sex-­ based classification before the court in Reed v. Reed and urging a more careful and rigorous review. The Reed brief documented the overwhelming force of the law that was directed toward keeping women in their place.47 About a year following her victory in Reed v. Reed, Ruth Bader Ginsburg delivered her first oral argument to the United States Supreme Court in the case of Frontiero v. Richardson.48 Standing before the row of robed male interlocutors, Ginsburg quoted abolitionist and women’s rights advocate Sarah Grimke and unflinchingly stated: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”49 Ruth Bader Ginsburg’s rhe­tori­cal legacy has fearlessly confronted the history of sex discrimination in Ameri­ can law. Her Reed brief also hinted at the principle of antisubordination that would come to shape her feminist jurisprudence on the United States Supreme Court—a principle grounded in the visibility of sex discrimina-

A Language of Feminist Jurisprudence / 47

tion and other traditions of injustice that have marginalized Ameri­can citizens through­out history. In Reed she argued: “Whatever differences may exist between the sexes, legislative judgments have frequently been based on inaccurate stereotypes of the capacities and sensibilities of women. In view of the damage that has been inflicted on individuals in the name of these ‘differences,’ any continuing distinctions should, like race, bear a heavy burden of proof.”50 The damage documented through­out the grandparent brief pushed on the Supreme Court’s boundaries of reasonableness to frame sex-­based classifications as inherently suspect. The rheto­ric of the Reed brief interrupted the myth of law’s neutrality to expose a history of bias in the Ameri­can legal system, to document the harm that it has inflicted on the equal rights and citizenship of Ameri­can women, and to unhinge the logic of women’s difference from the high court’s reservoir of rhe­tori­cal forms.

A Rhetoric of Context: Centering the Voices and Experiences of Ameri­can Women While Ginsburg’s feminist rheto­ric exposed the patriarchal tradition of the law, her rheto­ric was also aimed at shifting this foundation to write women’s perspectives and experiences into legal discourse. The rhe­tori­cal commitment to abstraction that shapes the traditional voice of the law resists such a move, demanding a broader rheto­ric that speaks in a language of decontextualized principles and rights. The language of transcendent and universal rights, while adding force to the court’s declarative tone and authoritarian voice, shelters the embedded patriarchal interests of the law and renders asking the woman question out of bounds. The Reed brief challenged this generic script of abstraction. Ginsburg’s rheto­ric demanded attention to context—to the voices of women, to sociological data that described their experiences, and to feminist perspectives from a burgeoning women’s movement. Ginsburg’s feminist jurisprudence exposed the patriarchal bias that hides in the shadows of a transcendent and universal law. She insisted that her reader acknowledge the male authorship of the law and demanded that the voices and experiences of women finally receive a hearing. She quoted ­Henrik Ibsen’s critique of nineteenth-­century gender norms, in which he stated: “A woman cannot be herself in a modern society. It is an exclusively male society with laws made by men, and with prosecutors and judges who assess female conduct from a male standpoint.”51 The grandparent brief repeatedly pointed to the “male standpoint” of the law. One section of the brief is especially notable for decentering this male perspective and challenging the oft-­rehearsed claim that sex discrimination is benign and bene-

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ficial to women. Ginsburg pointed to a 1952 New York Herald editorial that argued that woman is “doomed to subjection” but “happier than she would be in any other condition, just because it is the law of her nature.”52 English legal theorist William Blackstone “set the pattern” for this argument, Ginsburg noted, as she quoted Blackstone’s sentiment that “even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of England.”53 Turning to America, Ginsburg explained, “Grover Cleveland echoed this rationale, arguing that although women were denied the vote, the statute books were full of proof of the chivalrous concern of male legislators for the rights of women.”54 The rationalization of the legal disabilities imposed on women—the claim that women are happy beneficiaries of chivalrous concern and favorite status—emphasized a controlling perspective of male bias. Importantly, the rhe­tori­cal function of identifying male privilege, male power, and male perspective in the law opened up a space and provided a warrant for Ginsburg to include women’s voices and perspectives as necessary and valuable legal evidence in the case before the court. In one of the most important lines of the brief, Ginsburg pivoted from the voices of male power that she traced back to the founding to proclaim: “Ameri­can women assessed their situation from a different perspective.”55 The Reed brief then unfolded to lend legitimacy and authority to perspectives and experiences of Ameri­can women. Remarkably, Ginsburg turned to the first women’s rights convention, in Seneca Falls, New York, in 1848. The brief recited a lengthy passage from Elizabeth Cady Stanton’s Declaration of Sentiments, which gave voice to the early women’s movement and sharply challenged the lens of benevolence and chivalry through which women’s legal disabilities had of­ten been framed. The passage read: The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. . . . He has compelled her to submit to laws, in the formation of which she had no voice. He has taken from her all right in property, even to the wages she earns. . . . In the covenant of marriage . . . the law gives him power to deprive her of her liberty and to administer chastisement. . . . He closes against her all the avenues to wealth and distinction which he considers most honorable to himself. . . . He has endeavored, in every way that he could, to destroy her confidence in her own powers, to lessen her self-­respect, and to make her willing to lead a dependent and abject life.56

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The rheto­ric of women’s voices that populated the Reed brief advanced a much different perspective on the treatment of women by the law than did the perspective of protection and chivalry espoused by the brief ’s voices of patriarchy. Ginsburg contended: “Men viewing their world without rose-­ colored glasses would have noticed in the last century, as those who look will observe today, that no pedestal marks the place occupied by most women.”57 Elizabeth Cady Stanton’s strongly worded statement—“He has compelled her,” “He has taken from her,” “He closes against her”—disrupted the patriarchal script of the pedestal to expose the harm that women experience because of their subordinate legal status.58 Visually, the Elizabeth Cady Stanton passage was assigned additional importance as its length and spacing permitted the strongly worded statement to span nearly one page of the appellate brief. The recounting of women’s sentiments from 1848 emphasized to the court that the law has a long and unfortunate history of rendering the voices and experiences of women invisible. Lucinda Finley lends insight to the significance of women’s voices and perspectives that animated the Reed brief. She explains: “The claim that the law is patriarchal does not mean that women have not been addressed or comprehended by law. Women have obviously been the subjects or contemplated targets of many laws. But it is men’s understanding of women, women’s nature, women’s capacities, and women’s experiences—women refracted through the male eye—rather than women’s own definitions that has informed law.”59 The rheto­ric of the grandparent brief challenged the “male eye” of the law and invited the high court to center the voices and experiences of women. While the generic commitment to abstraction urges a dispassionate and depersonalized rhetoric, the Reed brief embraced a discourse of personal experience and highlighted the anger and dissatisfaction of Ameri­can women under patriarchal law. Ginsburg’s lengthy quotation of Sojourner Truth is instructive of this rhe­tori­cal move. Ginsburg quoted the words of Sojourner Truth, an abolitionist and former slave, in response to the taunts of clergymen who maintained that women needed protection and were too weak to vote in 1851. The passage reads: The man over there says women need to be helped into carriages and lifted over ditches, and to have the best place everywhere. Nobody ever helps me into carriages or over puddles, or gives me the best place —and ain’t I a woman? Look at my arm! I have ploughed and planted and gathered into barns, and no man could head me—and ain’t I a woman? I could work as much and eat as much as a man—when I could get it—and bear the lash as well! And ain’t I a woman? I have born thirteen children,

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and seen most of ’em sold into slavery, and when I cried out with my mother’s grief, none but Jesus heard me—and ain’t I a woman?60 The words of Sojourner Truth cut through the rheto­ric of the pedestal to expose patriarchal scripts of protection as blatant pretense for the subordination of women. The voice of Sojourner Truth—rooted in personal experience—­also exposed the logic of whiteness that underpins the script of the pedestal and the ideology of separate spheres. Bringing the voices and experiences of women to the foreground of legal reasoning is a central purpose of feminist jurisprudence. The space provided to the voices from the Seneca Falls Convention and to Sojourner Truth and contemporary voices of women’s liberation affirmed the legitimacy of women’s experiences and asserted the value of their voices. Recall Finley’s central point that “legal language frames the issues. . . . Since this language has been crafted primarily by white men, the way it defines the problem, and the speakers and speech it credits, do not readily include women.”61 Importantly, the language of the grandparent brief—the voices it cited, the authorities it credited, and the experiences it described—framed the question of equal protection before the court differently, to legitimate and center the experiences of Ameri­can women. Ruth Bader Ginsburg announced a dramatic break from the abstract boundaries of the legal reasoning from the opening pages of her historic brief. The table of authorities that opens an appellant brief is typically organized by cases, constitutions, and statutes—all which affirm precedential and governmental authority. The grandparent brief began with a list of cases and followed with a subsection titled “Other Authorities” that boldly positioned a range of feminist voices as equally credible and important authorities on the question of equal protection before the court. Included in this list of authorities were voices from the women’s liberation movement and feminist perspectives from a variety of backgrounds. A quick read over the authorities cited announced that a feminist perspective was absolutely necessary to the proper jurisprudence of Sally Reed’s appeal. The authorities cited included Caroline Bird, Born Female: The High Cost of Keeping Women Down; Simone de Beauvoir, The Second Sex; Eleanor Flexner, Century of Struggle: The Women’s Rights Movement in the United States; Margaret Fuller, Woman in the Nineteenth Century; Elizabeth Janeway, Man’s World, Woman’s Place: A Study in Social Mythology; Leo Kanowitz, Women and the Law: The Unfinished Revolution; Aileen Kraditor, Up from the Pedestal: Selected Writings in the History of Ameri­can Feminism; John Stuart Mill, The Subjection of Women; Pauli Murray, Negro Women’s Stake in the Equal Rights Amendment; Pauli Murray and Mary Eastman, Jane Crow and the Law: Sex Discrimina-

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tion and Title VII; Louise Noun, Strong-­Minded Women: The Emergence of the Woman-­Suffrage Movement in Iowa; and Faith Seidenberg, The Submissive Majority: Modern Trends in the Law Concerning Women’s Rights. The table of authorities that opened Ginsburg’s historic brief confronted the traditional voice of the law in several important ways. As Finley explains, “Legal language commands: abstract a situation from his­tori­cal, social, and po­liti­cal context”; Ginsburg’s table of authorities, on the other hand, demanded the contextualization of judicial review.62 Finley explains that legal language also commands, “Be ‘objective’ and avoid the lens of nonmale experience,” but Ginsburg advanced a feminist lens and privileged the experiences of women from the opening pages of the Reed brief. Finally, Finley reminds us that the legal language of abstraction also demands a “voice of dispassionate reason,” yet the titles of the authorities cited in the grandparent brief—The High Cost of Keeping Women Down, The Unfinished Revolution, Up from the Pedestal, Strong Minded Women—authorized a rheto­ric of passion and a language of deeply personal experience. It is instructive to note that “Ginsburg’s strategy of in­clud­ing extra-­legal material in the brief was deemed by the appellee as wasteful, serving no useful purpose.”63 The generic demands of objectivity, abstraction, and closure certainly urge the understanding of “extra-­legal” voices and evidence as wasteful, unnecessary, and out of bounds. The grandparent brief challenged these boundaries of legal rhetoric. Amy Campbell remarks: “Armed with more than just statistics and precedent, the standard fare of briefs, Reed was complete with literature, history, biology, philosophy, theology, and feminist doctrine to back her claim. . . . What has become known as the ‘grandmother brief ’ might rightly also be known as the ‘everything but the kitchen sink’ brief.”64 The evidence that Ginsburg advanced in the Reed brief included data and testimony from a wide variety of sources, bolstering her rheto­ric of context. Christine Littleton explains, “Sociological data is central to feminist methodology, grounded as it is in the discovering, sharing, and analy­sis of women’s concrete experience.”65 The use of sociological data through­out the grandparent brief amplified Ginsburg’s attention to the life of the law in context. Her argument cited reports of the President’s Commission on the Status of Women and of the Department of Labor Women’s Bureau that made plain the consequences of women’s sec­ond-­class status. Ginsburg pointed to material reality and spoke in a language of particulars: she cited the economic toll of sex bias; she referred to the specific challenges of domestic and migrant female workers; she drew attention to the fact that almost two-­thirds of the country’s adult poor are women; and she referenced “the deplorable shortage of child care facilities” that uniquely disadvantaged Ameri­can women.66 Ginsburg argued, “While this brief of-

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fers merely a sample of the legal and economic realities of women’s inferior status, it should suffice to indicate a compelling need for correction.”67 Indeed, the grandparent brief sketched a reality of women’s inferior status. Ruth Bader Ginsburg’s rheto­ric of context challenged the law’s generic commitment to abstraction and confronted the male eye of the law—insisting that the legal imagination of Ameri­can women’s citizenship be deeply informed by women’s voices and lived experiences.

A Rhetoric of Responsiveness: Authorizing a Progressive Constitutionalism The third feature of Ginsburg’s feminist jurisprudence was a narrative of awakening that warranted a progressive view of the United States Constitution and a jurisprudential ethic of responsiveness. The voice of the law, Martha Fineman reminds us, places premium value on stability and continuity: “The law his­tori­cally is conservative in nature. Concepts such as stare decisis and adherence to the idea of precedent controlling decisions make change difficult.”68 Ginsburg’s brief challenged the law’s language of closure to advance a vision of the Constitution as progressive—as a document that is responsive to the evolvement of the Ameri­can citizenry. The Reed brief was peppered with the language of awakening and progress. The opening argument announced: “The national conscience has been awakened to the some-­times subtle assignment of inferior status to women by the dominant male culture. In very recent years, both federal and state courts have expressed sharp criticism of lines drawn or sanctioned by governmental authority on the basis of sex.”69 Despite the brief ’s pointed claims of patriarchal bias, a rheto­ric of enlightenment and forward movement also shaped the Reed argument and placed pressure on the court to rule in favor of Sally Reed. Ginsburg described a “context of significant changes that have occurred in society’s attitudes” and cited data and statistics to document women’s increased participation in the pub­lic sphere.70 She pointed to evidence from the Department of Labor and proclaimed: “[Women’s] participation in the business world is increasing dramatically.”71 She pointed to a similar trend in education, explaining: “Close to 3,000,000 women were enrolled in institutions of higher learning in 1967, representing a 10% increase over 1966 and a 53% increase over 1963.”72 She cited additional statistics to document women’s increasing employment in professional fields— as lawyers, mathematicians, and statisticians. And she described women’s growing participation in pub­lic service—as employees of the federal government and members of the armed forces. Ginsburg argued: “Any legislative judgment that ‘men are better qualified to act as an administrator than

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are women’ is simply untenable in view of these statistics, revealing what the Department of Labor describes as ‘a major change in Ameri­can life style.’ ”73 Indeed, the Reed brief asserted a narrative of a national awakening: “In very recent years,” Ginsburg wrote, “a new appreciation of women’s place has been generated in the United States.”74 The grandparent brief demanded that the court be responsive to this progress. Ginsburg’s rheto­ric of forward movement—“awakening,” “recent years,” “current climate,” “major change”—stood in contrast to the static voice of stability observed in Muller, Goesaert, and Hoyt and lent momentum to her argument that “the time is ripe” for the court to defend women’s equal citizenship stature and rule in favor of Sally Reed.75 The forward momentum of the brief quickened as Ginsburg referenced a tide of decisions that recently ruled against sex discrimination and “outdated stereotypes.”76 Ginsburg announced: “The trend is clearly discernible, legislative discrimination grounded on sex, for purposes unrelated to any biological difference between the sexes, ranks with legislative discrimination based on race, another condition of birth, and merits no greater judicial deference.”77 The forward movement of the brief certainly supported Ginsburg’s vision of progressive constitutionalism. She quoted federal court Judge Walter Mansfield, who plainly stated: “While the law may look to the past for the lessons it teaches, it must be geared to the present and towards the future if it is to serve the people in just and proper fashion.”78 The grandparent brief defended this vision of progressive constitutionalism and argued that a proper jurisprudence must be responsive to the changes and the evolution of its citizenry. The dismantling of the Muller, Goesaert, Hoyt line of precedent strengthened the Reed brief ’s narrative of awakening and challenged the precedential deference that is normative in legal discourse. While precedential reasoning amplifies the rheto­ric of closure, the rheto­ric of Reed emphasized a commitment to progress and evidenced a sharp disregard for deference to the court’s separate spheres opinions. Ginsburg referred to Bradwell v. Illinois as “old debris” and described Goesaert v. Cleary as “retrogressive in its day and intolerable a generation later.”79 The brief framed the court’s precedent of separate spheres as retrogressive, outdated, and irrelevant. Ginsburg flatly announced, “Muller was a product of social conditions and constitutional theory peculiar to an earlier era in this nation’s history. It is entirely irrelevant to the issue presented here.”80 A commanding quote from Justice Oliver Wendell Holmes lent force to the critique of precedential logic that animated the grandparent brief. It read: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down

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have vanished long since, and the rule simply persists from blind imitation of the past.”81 Ginsburg pivoted from Holmes to argue that the blind imitation of the past in Goesaert v. Cleary, in upholding the disqualification of women from bartending, “have rendered it an embarrassment and a burden to state and federal courts.”82 Ginsburg’s focused dismantling of past prece­ dent in the Reed brief bolstered the forward momentum of her argument and awarded license to the ethic of progressivism and commitment to judicial responsiveness at the heart of her feminist jurisprudence. Ginsburg turned to the tide of recent federal and state court opinions referenced above to quote several passages in support of a progressive reading of the Constitution. She cited the majority opinion in Harper v. Virginia Board of Elections (1966) that proclaimed: “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”83 She also cited the very clear defense of progressive constitutionalism espoused in White v. Crook (1966): “The Constitution of the United States must be read as embodying general principles meant to govern society and the institutions of government as they evolve through time. It is therefore this Court’s function to apply the Constitution as a living document to the legal cases and controversies of contemporary society.”84 Notably, Ginsburg cited the example of Justice Felix Frankfurter to demonstrate a growing acceptance of progressive constitutionalism. She first quoted Justice Frankfurter’s exclamation in Goesaert v. Cleary that “the Constitution does not require legislatures to reflect sociological insight, or shifting social standards.”85 Importantly, Ginsburg emphasized, Frankfurter changed his position in the 1960 case of United States v. Dege. In this case, Frankfurter appraised prece­ dent from an earlier age as “expressing a view of womanhood ‘offensive to the ethos of our society’ ” and demanded that the court recognize women’s changing status in society. Frankfurter’s insight, Ginsburg told the court, “sound[ed] the death-­knell of Goesaert’s disregard of ‘sociological insight or shifting social standards.’ ”86 The narrative of Justice Frankfurter’s shift awarded legitimacy to Ginsburg’s vision of a progressive Constitution and bolstered her call for a judicial ethic of responsiveness. The language of awakening that colored the Reed brief placed pressure on the court to rule in favor of Sally Reed and to keep step with progress and enlightenment. To be sure, the Reed brief can be read as an invitation to the high court to rule on the right side of history. Ginsburg wrote: “Activated by feminists of both sexes, courts and legislatures have begun to recognize the claim of women to full membership in the class ‘persons’ entitled to due process guarantees of life, liberty, and equal protection of the laws.”87 Ginsburg pointed to Europe and to the German Federal Constitutional Court as evidence of the advancement of gender equality across the

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globe—and explained that the German court “relegated to the scrap heap of history legal distinctions based on the assumption that men are better equipped than women to manage property.”88 She also quoted Swedish Prime Minister Olaf Palme, stating: “The pub­lic opinion is nowadays so well informed that if a politician should declare that the woman ought to have a different role than the man and that it is natural that she devotes more time to the children he would be regarded to be of the Stone Age.”89 Attitudes supportive of separate spheres and discrimination against women’s equal citizenship are framed as archaic—as belonging to the Stone Age and the “scrap heap of history.”90 The language of the Reed brief was forceful in its characterization of sex discrimination as unenlightened—as “antiquarian,” “obsolete,” “Victorian,” and a “sham”—suggesting that the United States Supreme Court was long overdue in protecting the equal citizenship stature of Ameri­can women. 91

The Language of a Feminist Jurisprudence The Supreme Court’s decision in Reed v. Reed was unanimous. For the very first time, the court ruled that a sex-­based classification violated the Equal Protection Clause and was unconstitutional. Ruth Bader Ginsburg asked the woman question and her rheto­ric challenged a century of precedential logic that affirmed the inherent subordination and the sec­ond-­class citizenship of Ameri­can women. While the logic of women’s legal subordination held steady for more than a century by a rheto­ric of objectivity, abstraction, and closure, the grandparent brief insisted upon an alternative rheto­ric that finally opened the possibility of constitutionalizing the equal citizenship of women. Baer argues that feminist legal methods must begin “with a willingness to break the rules,” and the grandparent brief teaches us that the generic scripts of legal discourse are among the first rules that must be broken to assert a feminist jurisprudence.92 For Linda Kerber, “Ginsburg’s brilliant Reed brief became a template for many more lawsuits, many more arguments, and much more complex reasoning about the elements of fairness.”93 The rheto­ric of the grandparent brief is perhaps its greatest contribution; the language of women’s subordination, the attention to the voices and perspectives of women, and the defense of the Constitution as a progressive document combined in Ginsburg’s Reed brief to authorize a feminist jurisprudence. The Reed brief challenged traditional gender stereotypes that were repeatedly defended as natural and neutral by the patriarchal voice of the law. Ruth Bader Ginsburg urged the court to view notions of women’s difference through a lens of skepticism. Although Ginsburg’s brief argued for the

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recognition of sex as a “suspect class,” the court’s ruling did not increase the level of judicial review. Strict scrutiny, the most stringent standard of judicial review, would have presumed that any sex-­based classification was unconstitutional unless the state was able to prove otherwise. Even though the court did not officially pronounce sex a suspect class, Ginsburg’s rheto­ ric of skepticism most certainly shifted the court’s boundaries of reasonableness—and initiated a de facto stricter scrutiny that urged suspicion upon patriarchal logics of gender difference and sex-­role typing that appeared before the United States Supreme Court. Remarking on the legacy of Reed v. Reed, Emily Martin explained: “Reed recognized the arbitrariness and, thus, injustice of assuming in law that men are more competent in regard to matters outside of the home than women. And in recognizing that, it was the seed of what becomes a very important principle in equal protection law: gender stereotypes, the over-­broad generalizations about how women are, how men are, what women’s role is, and what man’s role is, are inappropriate bases for legal rules that say only men can do some things or only women can do some things.”94 Ruth Bader Ginsburg’s attention to the long history of sex discrimination in the United States would reappear in her legal arguments through­out the 1970s to provide grounding for the principle of antidiscrimination that governs equal protection law today. Justice Harry Blackmun’s personal memos reveal that the court took notice of the Reed brief ’s alternative feminist jurisprudence; his memos described the grandparent brief as “a very lengthy brief filled with emotion and his­tori­cal context about the inferior status of women.”95 Notably, the justice also seemed irritated that Ginsburg had trespassed the conventional boundaries of legal discourse: Blackmun interpreted her argument as “mildly offensive and arrogant.”96 Before reading Ginsburg’s brief, however, Justice Blackmun was dismissive of Sally Reed’s challenge to the Idaho probate law. “This case, of course, is a test case and much ado about nothing,” he wrote. Despite his resistance to Ruth Bader Ginsburg’s feminist jurisprudence, Linda Greenhouse tells us that Justice Blackmun was moved by the grandparent brief: “Yet even as he criticized Ginsburg’s brief, Blackmun was attentive to it; almost despite himself, his response to the case was shaped by her presentation, as his memo makes clear. The memo, barely four pages long and internally inconsistent in places, shows a judge wrestling with his instincts and biases in order to get to the heart of a challenging legal problem.”97 In the end, Blackmun was persuaded that the Idaho law was unconstitutional. “All in all, I am inclined to feel that sex can be considered a suspect classification just as race,” he wrote. “There can be no question that women have been held down in the past in almost every area.”98

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Even though Justice Blackmun was persuaded by Ruth Bader Ginsburg’s feminist jurisprudence, it is important to note that he urged his colleagues to keep close to the conventional scripts of legal discourse when writing the Reed opinion. He instructed: “We certainly could write a fairly brief and simple opinion accomplishing that very result. I would hope that we do not get into a long and emotional discussion about women’s rights.”99 Ruth Bader Ginsburg had convinced the all-­male court to look upon gender stereotypes with more suspicion, but she would have to wait until she was seated on the United States Supreme Court to initiate a serious and sustained discussion of women’s rights from the platform of a Supreme Court opinion. The Reed opinion was quite short; it was written by Chief Justice Warren Burger and it was just six pages long. There was a subtle change in the court’s language, however, that was quite revealing. While previous opinions required only that a government interest be rationally related to the classification of women—recall Justice Frankfurter’s minimal demand that the government interest in Goesaert v. Cleary be simply entertainable—the Supreme Court’s Reed opinion argued that the relationship between a government interest and the classification of women must be substantial. Five years after Reed v. Reed, Ruth Bader Ginsburg’s amicus brief in Craig v. Boren would lead the United States Supreme Court to formally announce a heightened—intermediate—level of scrutiny for sex discrimination.100 Chapter 3 describes how Justice Ginsburg seized the opportunity on the United States Supreme Court to assert a feminist jurisprudence from the nation’s highest bench to strengthen the level of scrutiny for sex discrimination once more. The grandparent brief undermined the logic of separate spheres that had contained the citizenship of Ameri­can woman and shaped the borders of judicial rheto­ric since the court decided Bradwell v. Illinois in 1873. Importantly, Ginsburg’s work with the ACLU’s Women’s Rights Project following Reed v. Reed would take up the equal protection claims of male plaintiffs— stay-­at-­home fathers, bachelor caregivers, and male nurses—to further destabilize the breadwinner-­homemaker dichotomy by challenging the prescriptive sex stereotyping of men. Ginsburg’s favorite case from the 1970s, Weinberger v. Wiesenfeld, defended Stephen Wiesenfeld’s role as the primary caregiver to his son after his wife passed away during childbirth and the law denied his request for Social Security parent’s benefits because he was a man.101 In the brief, Ginsburg pointed to the injurious stereotypes at the heart of the case, writing, “Just as Paula Wiesenfeld’s status as breadwinner is devalued so Stephen Wiesenfeld’s parental status is denigrated.”102 Ruth

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Bader Ginsburg’s campaign to unhinge the tradition of sex-­specific spheres from legal doctrine was remarkably successful: she won five out of the six cases she argued before the United States Supreme Court. By the mid-­1970s, Cary Franklin tells us, “the Court itself had begun to reason about sex discrimination from an anti-­stereotyping perspective. It recognized—particularly in male plaintiff cases we tend to overlook today—that laws that steer men out of traditionally female roles effectively require women to assume those roles, and it interpreted the Equal Protection Clause as a bar to such role-­typing.”103 Ruth Bader Ginsburg’s rheto­ ric of skepticism challenged the high court’s available means of persuasion. No longer would sweeping claims of women’s difference stand uncontested; the grandparent brief would forever be recorded as a winning argument and would fundamentally shift the boundaries of legal imagination. As feminist historian Linda Kerber puts it, “Reed [made] it more difficult for states to ground their laws, and Ameri­cans to ground their social practices, in stereotypes about men’s and women’s differences.”104 The rhe­tori­cal possibilities that follow from Ruth Bader Ginsburg’s dismantling of the separate spheres precedent continue to play out today. Carol Pressman writes: “In the house that Ruth built, men and women do not have to be the same, but they can be if they so desire. Men can collect benefits from their wives’ employment without having to overcome a presumption that they do not need the money. . . . Women can be estate executors without having to overcome a presumption that a man should have the job if both a woman and a man are qualified. Women can go to military school, and get their heads shaved and undergo adversity training if they so desire. Most importantly, women can even be members of the United States Supreme Court. This would have been hard to believe in 1970 when Ruth Bader Ginsburg wrote one of the most important appellate briefs in the gender discrimination area, the ‘grandmother brief.’ ”105 Ginsburg’s historic brief confronted the legal precedent of separate spheres and challenged the tyranny of gender stereotypes within Ameri­can law to make way for a more inclusive vision of equal protection. The sustained critique of the gender binary in Ameri­can law that Ginsburg initiated in her grandparent brief created inroads for a range of important legal arguments that stretch beyond the protection of women’s equal citizenship stature to support grounding for issues like paid family leave for all and marriage equality.106 On the United States Supreme Court, Ruth Bader Ginsburg continues to urge a jurisprudence of skepticism, carefully attending to traditions of injustice and rooting out injurious and discriminatory stereotypes in order to broaden the Ameri­can promise of equal protection. The context of women’s voices that animated the grandparent brief—

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writings from the women’s liberation movement, theories of feminism, data describing gendered realities—assigned a value to women’s perspectives and demanded a visibility for women’s experiences that had never been granted by the patriarchal scripts of legal discourse. Ruth Bader Ginsburg’s insistence on asking the woman question in Reed v. Reed urged the high court to grapple with what Felice Batlan described as “a law in action—based on the material conditions of lives actually lived.”107 Importantly, the scope of Ginsburg’s “woman question” would grow broader in the years following Reed v. Reed to attend more carefully to differences among women’s experiences, to search for experiences of interlocking oppression, and to orient her reasoning toward other subordinating structures in­clud­ing race, sexuality, economic status, and disability.108 Beginning with her grandparent brief, Ginsburg’s rhe­tori­cal legacy reveals that a commitment to context and a focused attention to the life of the law in practice is central to the ideal of substantive human equality that animates her legal career. Notably, Ginsburg’s equal protection advocacy has been criticized by some feminists who charge her with pursuing a sex-­blind notion of “formal equality.”109 These critics blame Ginsburg for neglecting to account for the unique experiences and positionalities of women. For example, Gretchen Ritter argues: “While seeking to make women ‘equal’ and thereby erase the significance of gender from their civic identities, the equality approach was limited both by the ways in which the courts found women to be irreducibly different from men and by the loss of history and po­liti­cal identity entailed when the project of equality succeeded.”110 Ruth Bader Ginsburg’s rheto­ric of women’s voices stands in stark contrast to such criticism. While she certainly aimed to dismantle the patriarchal logics of difference that had contained women’s citizenship for centuries, it does not follow that she aimed for the erasure of sex and gender from the legal imagination of Ameri­can citizenship. Indeed, she demanded careful attention to material experiences of sex and gender, drawing attention to the ways that cultural understandings of motherhood and childcare, for example, uniquely shape and constrain the opportunities of Ameri­can women. The grandparent brief urged much more than the simple right of Ameri­ can women to join a man’s world. Ruth Bader Ginsburg’s voice of skepticism, context, and responsiveness in her earliest briefs to the United States Supreme Court teach us that her feminist jurisprudence aimed to transform that world. For this reason, Joan Williams argues that Ginsburg can appropriately be understood as a reconstructive feminist. Her feminist jurisprudence is governed by a commitment “not to treat men and women the same, but a commitment to change existing masculine norms, and to substitute new norms that include the experiences of women.”111 Chapters

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3 and 4 further undermine the characterization of Ruth Bader Ginsburg as an advocate of a sex-­blind formal equality and illustrate how close attention to her judicial voice and careful assessment of her jurisprudential language elucidate the nature of Ginsburg’s feminist legacy. The third rhe­tori­cal feature of the grandparent brief—a commitment to responsiveness—pointedly challenged the law’s language of closure. Ginsburg urged the court to keep step with societal change, to take note of a growing women’s movement, and to listen to the contemporary voices of feminism. Importantly, Ginsburg’s rhe­tori­cal commitment to responsiveness advanced a forceful challenge to judicial supremacy. The authorities cited in Reed, for example—Pauli Murray, Simone de Beauvoir, Margaret Fuller, Elizabeth Cady Stanton, Sojourner Truth—legitimated a range of women’s voices as proper authorities and important contributors to the law. Yale Law professor Reva Siegel explains that extralegal voices can function to connect judicial reasoning inside the court to the experiences and claims made about the Constitution by persons outside of the court.112 Ginsburg’s rheto­ric activated this important communicative pathway by incorporating voices and theories from Ameri­can feminism as central to her legal argument. Reflecting on the importance of Reed forty years later, Ginsburg explained: “I think the idea started with the people. There was, at the start of the seventies, a burgeoning women’s rights movement, a revival of the women’s rights movement not only in the United States, but all over the world.”113 Ginsburg’s rheto­ric destabilized the logics of closure that authorize judicial supremacy to legitimate the important role of the citizen in shaping constitutional meaning. She framed the grandparent brief and the victory for women’s rights in Reed v. Reed as a victory of the people. A rhe­tori­cal commitment to responsiveness remains central to Ruth Bader Ginsburg’s feminist jurisprudence on the United States Supreme Court. She repeatedly activates a communicative pathway between the court and the Ameri­can citizenry—to welcome previously marginalized voices, to legitimate alternative perspectives, and to defend a demo­cratic reimagining of the law. Following her victory in Reed v. Reed, Ruth Bader Ginsburg pushed forward with the ACLU and the Women’s Rights Project to fight sex discrimination through­out the 1970s. Kathleen Peratis explains, “Justice Ginsburg’s brief in Reed was the very last time she would ever have to brief a case in the United States Supreme Court without being able to cite a Supreme Court case that she herself had won.”114 The grandparent brief served as a powerful warrant for the legal advocacy of the Women’s Rights Project that eventually led to the annunciation of an increased—intermediate—level of review for sex-­based classifications. On the United States Supreme Court,

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Justice Ginsburg continues to challenge the generic conventions of objectivity, abstraction, and closure. Importantly, Justice Ginsburg’s feminist jurisprudence, and her alternate commitments to skepticism, context, and responsiveness, prove central to her jurisprudential voice on a wide range of issues. On the significance of Reed v. Reed, Martin explains, “Reed really represented a historic change that began to fulfill the promise of the broad language of the Equal Protection Clause, which does prohibit denying any person the equal protection of the law.”115 The promise of Ruth Bader Ginsburg’s rhe­tori­cal legacy, a legacy that begins with the grandparent brief and its challenge to the traditional voice of the law, is found in the inclusive promise of Ginsburg’s alternative voice—a voice that has consistently defied an entrenched genre of legal discourse to transform how the United States Constitution speaks to gender equality and to enlarge the Ameri­can promise of equal protection to all.

3

Shifting the Boundaries of Equal Protection

Justice Ginsburg’s Defense of Progressive Constitutionalism in United States v. Virginia

Ruth Bader Ginsburg was nominated to the high court by President William Jefferson Clinton and began her term on Oc­to­ber 4, 1993, as the sec­ond woman to ever serve on the United States Supreme Court. Announcing her nomination in the White House Rose Garden, President Clinton introduced Ruth Bader Ginsburg as “the Thurgood Marshall of gender equality law.”1 Ginsburg’s record of dedicated advocacy with the ACLU’s Women’s Rights Project certainly led many court watchers to hope that she would have a progressive influence on the conservative Rehnquist court. As Karen Kupetz writes: “Once on the United States Supreme Court, Justice Ginsburg’s background as the nation’s most influential litigator on gender equality raised expectations of her impact in the areas of interest to women’s rights advocates.”2 Ginsburg’s challenge to the traditional voice of the law found full expression in the law three years into her term when she penned the majority opinion in United States v. Virginia. As Justice Ginsburg recently reflected, “I regard the VMI case as the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints.”3 VMI is of­ten described as Justice Ginsburg’s most important majority opinion, as the capstone of her important work in the 1970s.4 Indeed, the significance of United States v. Virginia is amplified when it is understood as central to her ongoing effort to decenter the traditional voice of the law. The 1996 case of United States v. Virginia challenged the Virginia Military Institute’s men-­only admissions policy and provoked a fiery pub­lic debate, making it the most anticipated decision handed down that year. Al-

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though the military academy had prohibited women’s entry for a century and a half, the Supreme Court ruled that the single-­sex policy violated the Equal Protection Clause of the Fourteenth Amendment. The court’s decision was celebrated by women’s rights activists and was immediately distinguished as a landmark decision in the history of women’s rights litigation.5 Attorney General Janet Reno stated, “The Supreme Court overwhelmingly has given life to the promise in the Constitution that all of us deserve an equal shot at educational opportunity.”6 Many commentators agreed with Reno and cheered Justice Ginsburg’s opinion for articulating a bold affirmation of women’s equal citizenship stature. The significance of Ginsburg’s rheto­ric in VMI extends beyond the protection of women’s rights however. For Cary Franklin, “the opinion is a sweeping meditation on the meaning of the Fourteenth Amendment’s equality guarantee, the role of history in constitutional interpretation, and the lengthy and ongoing efforts of the Ameri­can people to form a ‘more perfect Union.’ ”7 Justice Ginsburg’s VMI opinion defied the generic scripts of legal discourse from the nation’s highest bench to defend a progressive constitutional vision. Her alternative rheto­ric widened the boundaries of equal protection and strengthened its promise, authorizing a heightened skeptical scrutiny for questions of sex discrimination and a corrective vision of equal protection for all. To appreciate how Justice Ginsburg’s VMI opinion shifted the boundaries of equal protection jurisprudence, it is necessary to begin with relevant legal background. The Equal Protection Clause was initially interpreted to require that all legislation, at the very least, bear a rational relationship to a legitimate governmental purpose. Through this legal lens, the law in question carries a presumption of legitimacy, receives minimal scrutiny from the judiciary, and is practically always upheld.8 The separate spheres trilogy of Muller, Goesaert, and Hoyt demonstrate how easily sex discrimination was deemed constitutionally legitimate under the parameters of the rational basis test. In contrast to the minimal scrutiny of the rational basis test, any statute or governmental action that differentiates among people based on a suspect classification—race or national origin, for example—is subjected to strict scrutiny. Strict scrutiny presumes that the classification in question is unconstitutional; the government must demonstrate a compelling justification to prove otherwise. Within the two-­tier framework of minimal and strict scrutiny, laws that did not involve suspect classifications were assigned to the lower tier and were upheld if they withstood the minimal scrutiny of the rational basis test. When the court decided Reed v. Reed, it was the very first time the Supreme Court ruled a sex-­based classification unconstitutional; the Idaho statute failed to withstand the minimal scrutiny of the rational basis test.

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Sex-­based classifications continued to receive minimal scrutiny until 1976. That year, the high court introduced a heightened level of scrutiny for sex-­based classifications in response to the case of Craig v. Boren.9 Justice William Brennan articulated an intermediate level of scrutiny in defense of the court’s ruling, writing: “Classifications by gender must serve important governmental objectives and be substantially related to these objectives.”10 Justice Brennan’s words heightened the level of scrutiny for sex-­based classifications and positioned sex-­based classifications between the minimal scrutiny requirement of rational basis and the strict scrutiny requirement of compelling justification. The intermediate standard of review remained the established standard for sex-­based classifications when the case of United States v. Virginia reached the high court in 1996. Although more than a century’s worth of cases implicating the Equal Protection Clause had come before the high court, sex discrimination cases remained unpredictable. As Philippa Strum describes, “Gender cases were relegated to the constitutional twilight zone of intermediate or heightened scrutiny. They could go either way, which is why both sides could predict victory in United States v. Virginia.”11 The Virginia Military Institute (VMI) was founded in 1839 as a single-­ sex, publicly funded college. It was the mission of VMI to produce citizen soldiers, men who were rigorously trained for military service and prepared for civic leadership. To this end, the VMI education was grounded in an adversative instructional method, featuring, “physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination of desirable values.”12 This rough and rigorous style was designed to train the students to succeed under adverse conditions by pushing them to their limits and subjecting them to mental and physical stress. There was certainly a logic of gendered spheres that was operative in the mission of the prestigious state college. VMI was a training ground, designed to prepare men to become prominent leaders in their communities.13 And the school’s loyal alumni network contributed to this end, providing VMI graduates with ready access to the upper echelons of the state’s business and civic circles.14 As Ruth Bader Ginsburg recently wrote, “Public understanding had advanced so that people comprehended that the VMI case was not about the military. Instead, VMI was about a state that invested heavily in a college designed to produce business and civic leaders, that for generations succeeded admirably in this endeavor, and that strictly limited this unparalleled opportunity to men.”15 Between 1988 and 1990 approximately three hundred and fifty women were turned away when requesting admissions information from VMI. A complaint from an anonymous high school student to the Department of

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Justice in 1990 launched a six-­year court battle that challenged the tradition of the VMI men-­only admissions policy and the high court’s precedent in its application of the Equal Protection Clause. In 1992, the court of appeals ruled that the school’s admission policy was unconstitutional and provided the Commonwealth of Virginia with three options to remedy the school’s equal protection violation: admit women into VMI, create a parallel program for women, or transform VMI from a pub­lic into a private institution. Officials at VMI chose to create a separate program for women and hastily developed the Virginia Women’s Institute of Leadership (VWIL) at Mary Baldwin College. In 1994, the district court ruled that the program developed for women satisfied the demand of the Equal Protection Clause. The court of appeals affirmed this decision, arguing that men who attended VMI and women who participated in the VWIL program would earn comparable benefits. The Justice Department disagreed, appealed the district court’s decision, and United States v. Virginia reached the United States Supreme Court on Janu­ary 17, 1996. On June 26, 1996, a seven-­justice majority ruled that Virginia’s exclusion of women from VMI violated the Equal Protection Clause.16 Justice Ginsburg later revealed that writing the VMI opinion was extremely difficult. She commented, “I literally worried over every word in the opinion.”17 Her careful attention to every word is no surprise. In response to the case before her, Ginsburg seized the opportunity to advance her challenge to the law’s traditional voice from the influential platform of a Supreme Court majority opinion. While feminist legal scholars described the court’s ruling as a remarkable step in the direction of equality and labeled it a “water-­shed decision for women’s rights,”18 Kupetz pointed to the broader significance of Ginsburg’s judicial voice, explaining that, “from a feminist jurisprudence perspective, the impact of Justice Ginsburg’s debut opinion was cause for celebration.”19 It is true, Justice Ginsburg’s alternative rheto­ric of skepticism, context, and responsiveness unsettled the male eye of the law from the nation’s highest bench and strengthened the constitutional promise of equal protection.

Authorizing Skeptical Scrutiny: The Visibility of Patriarchal Bias Justice Ginsburg’s United States v. Virginia opinion recounted a long history of sex discrimination against Ameri­can women. Her rheto­ric in United States v. Virginia was remarkably similar to the rheto­ric of her Reed brief; she detailed a pattern of sex discrimination through­out US history and cast the nation’s past as a period marred by the unjust treatment of women. Justice Ginsburg’s voice of skepticism rang clear from the opening lines of

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her majority opinion as she asserted that history has given the court overwhelming reason to be suspicious of actions that restrict the rights and opportunities of women. She wrote: “Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history.”20 Notably, Justice Ginsburg’s opening statement described the character of judicial review to follow as skeptical scrutiny. Ginsburg did not introduce the standard of review as intermediate, the standard established for sex-­based classifications in the 1976 decision of Craig v. Boren, nor did she refer to the heightened standard of strict scrutiny. Instead, Justice Ginsburg insisted that those who seek to defend sex discrimination must prove an “exceedingly persuasive justification” and introduced the appropriate character of judicial review as skeptical scrutiny. Although the opinion left the intermediate standard intact and did not formally move to strict scrutiny, the departure in language is significant; it authorized a more rigorous standard of review and positioned the United States Supreme Court as active in the search for patriarchal bias and sex discrimination. Justice Ginsburg’s opening argument characterized the Supreme Court in a positive light, as an institution that is appropriately responsive to the history of sex discrimination. She began by citing the court’s decision in Frontiero v. Richardson (1973): “As a plurality of this Court acknowledged a generation ago,” she announced, “ ‘our Nation has had a long and unfortunate history of sex discrimination.’ ”21 She drew attention to the expanse of this history, reminding her reader: “Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People.’ ”22 Just as she did in the Reed brief, Ruth Bader Ginsburg pointed to the first three words from the preamble to the United States Constitution to emphasize that women have long been excluded from the rights and opportunities of full citizenship. The narrative sketched by Ginsburg in the first few paragraphs of the opinion described sex-­based exclusions as repeatedly unjust and discriminatory. The remainder of the opinion fleshed out this story by detailing how patriarchal bias has repeatedly operated to ban Ameri­can women from institutions of higher learning, professional fields, and full citizenship. As readers, we are asked to witness a “his­ tori­cal pattern of discrimination” against Ameri­can women and to view VMI’s men-­only admissions policy as a piece of this recurrent story.23 Justice Ginsburg’s argument performed the skeptical scrutiny that she advocated, as her opinion carefully evaluated Virginia’s defense of VMI in light of the his­tori­cal pattern of discrimination against women. The state of Virginia defended VMI’s exclusion of women with two main arguments. First, Virginia argued that the single-­sex admissions policy contributed valu­able diversity to the state’s educational system. Justice Ginsburg evalu-

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ated Virginia’s reasoning within the his­tori­cal context of VMI’s founding to disprove this claim and mark it as pretext: “Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-­sex educational options. In 1839, when the Commonwealth established VMI, a range of education options was scarcely contemplated.”24 Justice Ginsburg flatly pointed out: “Higher education at the time was considered dangerous for women; reflecting widely held views about women’s proper place.”25 Just as she did in her grandparent brief, Justice Ginsburg highlighted voices of glaring patriarchal bias to raise suspicion of the sex-­based classification before the court. She quoted one male official who argued that the admission of women to VMI would destroy “any sense of decency that still permeates the relationship between the sexes.”26 Similarly, she quoted Dr. Edward H. Clarke, a Harvard Medical School physician who opposed the admission of women to Harvard: “Identical education of the two sexes is a crime before God and humanity, that physiology protests against and that experience weeps over.”27 Justice Ginsburg emphasized that Clarke also believed the academic demand and competitive environment of higher education would threaten the development of female reproductive organs. She concluded that history does not “[bear] out Virginia’s alleged pursuit of diversity through single-­sex educational options.”28 Instead, Justice Ginsburg looked to his­tori­cal context and reported three overtly sexist rationales for the exclusion of women from higher education; that it kept women in their place, that it maintained decency between the sexes, and that it protected women as childbearers. Instead of accepting the Commonwealth’s reason­ ing on its face, as serving an important government interest and therefore constitutionally legitimate, Justice Ginsburg performed a skeptical judicial stance. Her contextual excavation sought out the unreasonable and bygone notions about women’s nature that motivated their exclusion from higher education at the time that Virginia founded VMI, and she carefully weighed the question before her against this context of patriarchal bias. In like fashion, Ginsburg rejected the sec­ond argument that Virginia advanced to defend VMI’s single-­sex admissions policy. Virginia claimed that the adversative method—the rough and rigorous educational style that was central to VMI’s mission—could not accommodate women and would have to be modified if they were admitted to VMI. Justice Ginsburg responded, “The notion that admission of women would downgrade VMI’s stature, destroy the adversative sys­tem and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other ‘self-­fulfilling prophe­c[ies]’ once routinely used to deny rights or opportunities.”29 Again, Gins­burg’s characterization of Virginia’s reasoning as familiar and routine suggested that the commonwealth’s logic resonated among the predictable

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topoi used to justify discrimination against women through­out history. She asserted, “Such judgments, have attended, and impeded, women’s progress toward full citizenship stature through­out our Nation’s history.”30 The patriarchal bias that Ginsburg’s opinion documented encouraged an overwhelming suspicion of Virginia’s claim that the university’s all-­male admission policy was constitutionally legitimate and void of discriminatory intent. Although the VMI ruling did not formally shift the court’s standard of review from intermediate scrutiny to strict scrutiny, Justice Ginsburg’s judicial voice of skepticism authorized an intense scrutiny that shifted the boundaries of reasonableness to frame the exclusionary sex-­based classification before the court as inherently suspect and presumptively discriminatory. Justice Ginsburg’s VMI opinion teaches that the court’s application of the Equal Protection Clause must be rooted in a deep understanding of history and a keen awareness for how past injustices may continue to limit opportunity and restrict equal citizenship stature. This is a key contribution of her feminist voice. Her reasoning insisted—at every turn—that VMI’s exclusion of women cannot be evaluated as an isolated educational policy. For Cary Franklin, “United States v. Virginia explicitly rejects blindness—in this case, sex blindness—as the guiding principle in constitutional equality law.”31 This is true, and just as she did in her Reed brief, Justice Ginsburg aims her rheto­ric at making sex discrimination visible in the law. Justice Ginsburg’s opinion’s reference to Christopher Jencks and David Riesman’s The Academic Revolution is revealing of her jurisprudential commitment to context and her rejection of a sex-­blind doctrine of equality. Jencks and Riesman write: “The pluralistic argument for preserving all-­male colleges is uncomfortably similar to the pluralistic argument for preserving all-­white colleges. . . . The all-­male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority, assumptions for which women must eventually pay.”32 Justice Ginsburg’s opinion in United States v. Virginia interrupted the judiciary’s traditional allegiance to abstraction to direct our attention to the world in which women experience sex-­based classifications, that is, to the life of the law in practice. Her feminist jurisprudence shifted the focus of women’s equality away from women’s bodies—a focus that naturalized women’s subordinate status in Muller, Goesaert, and Hoyt—and directed our attention outward, to the social, economic, legal, and po­liti­cal traditions that have created and perpetuated women’s subordination in the United States.33 It is also important to emphasize that Ginsburg’s VMI rheto­ric portrayed an engaged judiciary; her skeptical judicial stance unsettled the myth of a detached judiciary and challenged the traditional ethos of the court as

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“outside of time and above politics.”34 Instead, Justice Ginsburg’s skeptical judicial voice warranted a jurisprudence that is fully informed by context, equipped to unearth pretext, and committed to illuminating the discriminatory bias that is of­ten shielded by the generic scripts of the law. As Karen Kupetz notes: “From a constitutional law perspective, the VMI decision represents a doctrinal shift in the Court’s treatment of gender classifications.”35 Many legal scholars praised Justice Ginsburg for charting new ground in VMI to apply a skeptical scrutiny test to sex-­based legislation.36 Although the Supreme Court’s decision did not formally heighten sex classification to strict scrutiny, the rhe­tori­cal boundaries of Justice Ginsburg’s opinion outlined a visible context of patriarchal bias to mark legal classifications that exclude women as inherently suspect.

The Pursuit of Antisubordination: Reasoning from the Standpoint of the Excluded Following a form similar to her historic Reed brief, Justice Ginsburg’s narrative of discrimination against women in United States v. Virginia was underpinned by a theme of progress. The forward movement that shaped the majority opinion invited an understanding of the judiciary as appropriately responsive to societal change and advanced a vision of the Constitution as progressive—as growing ever more just and inclusive of a diverse and shifting citizenry. Ginsburg highlighted key moments in recent history that symbolized a rejection of discriminatory sex-­based classifications and an embrace of a more expansive understanding of women’s equal citizenship. Notably, the first stride forward that Justice Ginsburg introduced was the high court’s watershed decision in Reed v. Reed. She wrote: “In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature, equal opportunity to aspire, achieve, participate in and contribute to society based on their in­di­vidual talents and capacities.”37 Throughout the opinion, Ginsburg repeatedly acknowledged forward progress. In response to VMI’s mission to produce citizen-­soldiers, she stated, “Surely that goal is great enough to accommodate women, who today count as citizens in our Ameri­can democracy equal in stature to men.”38 Justice Ginsburg’s reminder, that today women “count as citizens,” drew attention to societal progress and to constitutional reforms that have affirmed women’s equal citizenship stature and expanded our democracy. The opinion’s theme of progress pushed back on the law’s generic com-

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mitment to fixity and closure and interrupted the generic script of abstraction as Justice Ginsburg characterized sweeping generalizations about woman’s nature, roles, and abilities as outdated and obsolete. Justice Ginsburg refused to accept the Virginia Women’s Institute of Leadership as an appropriate constitutional remedy for VMI’s exclusion of women, arguing that the women’s program “does not qualify as VMI’s equal.”39 Virginia argued that the differences between the programs were legitimate—intentionally designed to reflect the inherent differences between men and women. Justice Ginsburg insisted that Virginia’s reasoning was deeply flawed, and she borrowed from the Commonwealth’s brief to emphasize the inaccuracies of the state’s logic. She wrote: Virginia maintains that these methodological differences are “justi­ fied pedagogically,” based on important differences between men and women in learning and developmental needs, “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, “determined that a military model and, especially VMI’s adversative method, would be wholly inappropriate for educating and training most women.” VMI’s adversative method “would not be effective for women as a group” [emphasis added]. The Commonwealth embraced the Task Force view, as did expert witnesses who testified for Virginia. As earlier stated, generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talents and capacity place them outside the average description.40 The emphases added by Justice Ginsburg drew the reader’s attention to Virginia’s rheto­ric of abstraction and to repeated generalizations about women as a group. The traditional voice of the law—as we observed in Bradwell v. Illinois, Muller v. Oregon, Goesaert v. Cleary, and Hoyt v. Florida—embraced a rheto­ric of abstraction to support the patriarchal and exclusionary notion that women share a fixed and unifying essence. Justice Ginsburg’s opinion disrupted the legitimacy of Virginia’s universalizing logic and refused to operate within its confines. With considerable nuance and complexity, she rejected biological generalizations, she emphasized differences among women and men, and she oriented her jurisprudence from the standpoint of those routinely excluded by the law’s abstract and universalizing rhetoric. Justice Ginsburg reasoned from the standpoint of the excluded insofar

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as a single woman’s right to attend VMI is protected even if she is the only woman who can meet VMI’s stringent standards. She argued, “VMI’s implementing methodology is not inherently unsuitable to women; some women, at least, would want to attend VMI if they had the opportunity, some women are capable of all the in­di­vidual activities required of the VMI cadets, and can meet the physical standards VMI now imposes on men. It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted.”41 Ginsburg’s announcement—­ that the court must act on behalf of women who fall outside of generalized norms and averages—demanded a jurisprudence that protects those marginalized and excluded by logics of abstraction. Neil Siegel argues that Justice Ginsburg’s constitutional vision is decidedly inclusive. He argues: “Affording ‘equal dignity’ to all Ameri­cans, in­clud­ing his­tori­cally marginalized groups, constitutes the central purpose of Justice Ginsburg’s constitutional vision.”42 Indeed, at the crux of her majority opinion is the argument that equal protection is violated when a law or policy denies to any woman “equal opportunity to aspire, achieve, participate in, and contribute to society based on their in­di­vidual talents and capacities.”43 Ginsburg asserted, “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”44 Importantly, her rheto­ric in VMI broadened the focus of the court. Justice Ginsburg reached beyond the traditional scripts of the law to orient the court from the standpoint of those excluded, to protect those “outside the average description,” and to place a commitment to antisubordination at the center of the court’s equal protection jurisprudence. Justice Ginsburg’s VMI rheto­ric unmoored the jurisprudence of gender equality from the traditional approach of comparing women to men. Instead, the equality analy­sis in VMI focused on jurisprudence itself—on the role of the court and the pursuit of antisubordination that sits at the cen­ ter of a progressive Constitution. Justice Ginsburg rejected the sameness/­ difference paradigm of­ten articulated by the Supreme Court to determine the constitutionality of sex-­based classifications. Feminist legal theorist Deborah Rhode points to one of the many problems with this paradigm: “To pronounce women either the same or different allows men to remain the standard of analy­sis. Significant progress toward gender equality will require moving beyond the sameness-­difference dilemma.”45 Similarly, Judith Baer remarks: “The [sameness/difference] dichotomy is false. Feminist jurists need not—indeed, we must not—choose between laws that treat men and women the same and laws that treat them differently. We already know that both kinds of law can be sexist. . . . Women can have it both ways. Law

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can treat men and women alike where they are alike and differently where they are different.”46 The principle of antisubordination in United States v. Virginia unsettled the sameness/difference paradigm and demonstrated that what Baer proposed is true: that women can have it both ways. Justice Ginsburg’s equal protection analy­sis rejected universalizing logics of women’s nature, disrupted the legitimacy of group-­based comparisons, and undermined the significance of group averages. Importantly, Justice Ginsburg also refused to argue that women are the same as men. She wrote: “ ‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”47 The majority opinion in United States v. Virginia did not evaluate the constitutionality of sex classification for how it rang true with broad generalities about the similarities or differences between men and women. Instead, Ginsburg insisted that sex classification was constitutional only if it serves antisubordination ends. She wrote: “Sex classifications may be used to compensate women ‘for particular economic disabilities they have suffered,’ to ‘promote equal employment opportunity,’ to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”48 Justice Ginsburg evaluated the sex classification before the court against the purpose of bolstering the equal citizenship status of Ameri­can women and unequivocally positioned a commitment to antisubordination as the governing logic of the Equal Protection Clause. It is important to emphasize that Justice Ginsburg’s VMI opinion drew an important distinction between practices of inclusion and exclusion. Her principle of antisubordination affirmed legal classifications that are designed to foster inclusion and to remedy for past discrimination. Neil Siegel notes: “She has operationalized this distinction by applying vigorous judicial scrutiny only to exclusionary practices, thereby destabilizing the doctrinal division of the Equal Protection Clause into three tiers of scrutiny. In her view, rigid adherence to the tiers thwarts the vindication of antisubordination values, particularly the moral insistence that the low be raised up—that the forces of subordination be named, accused, disestablished, and dissolved.”49 This is true and her VMI rheto­ric deemed sex classification legitimate only if it functioned to include the his­tori­cally excluded and to remedy for past wrongs, or in Justice Ginsburg’s words—“to compensate,” “to promote,” and “to advance.”50 Justice Ginsburg’s opinion described considerable progress in the legal treatment of Ameri­can women; she pointed to improvements in women’s

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status and detailed a more nuanced understanding of equal protection jurisprudence. While the opinion communicated a forward momentum, Justice Ginsburg’s stagnant characterization of VMI clashed against her rheto­ric of progress and responsiveness to cast the institution as dramatically out of step with societal advances. Justice Ginsburg described VMI’s mission as its “historic and constant plan” and explained: “His­tori­cally, most of Virginia’s pub­lic colleges and universities were single-­sex; by the mid-­1970s however, all except VMI had become coeducational.”51 She pointed to the transition to coeducation as evidence of progressive reform, emphasizing that VMI stood alone in its continued refusal to admit women. The clash between the progressive movement of the opinion and Justice Ginsburg’s characterization of VMI was brought to the fore in her closing words. She invoked historian Richard Morris to bolster her vision of progressive constitutionalism, announcing: “A prime part of the history of our Constitution . . . is the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of ‘We the People’ expanded.”52 Ginsburg’s narrative begins and ends with the United States Constitution. The expansion of We the People, according to Justice Ginsburg, signifies a moral progression and a corresponding constitutional progression, wherein the application of constitutional principles increasingly becomes more inclusive, more just, and more right. In contrast, we are told that VMI’s “story continued”—carrying on the pattern of discrimination that shames our past.53 The characterization of VMI as stagnant and resistant to change positioned VMI as out of step with the more inclusive ideals of an enlightened citizenry and out of synch with the progressive undercurrent of the United States Constitution. Just as she did in her pathmarking Reed brief, Ginsburg’s opinion expressed a jurisprudential commitment to responsiveness. In United States v. Virginia, Justice Ginsburg’s rheto­ric of responsiveness defied the generic scripts of legal discourse from the nation’s highest bench to widen the boundaries of equal protection analy­sis and strengthen its promise—authorizing a heightened skeptical scrutiny and a corrective vision of equal protection.

Justice Scalia’s Dissent: Conservative Constitutionalism and the Traditional Scripts of the Law Justice Antonin Scalia authored an impassioned dissent in response to the court’s majority opinion in United States v. Virginia. In direct opposition to Justice Ginsburg’s voice of progress, Justice Scalia’s judicial voice endorsed a competing vision of conservative constitutionalism that rearticulated the law’s exclusionary rhe­tori­cal commitments to objectivity, abstrac-

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tion, and closure. Although one court observer commented that Scalia’s dissent read “like a sorrowful lament to the passing of male chivalry,” Justice Scalia vehemently reasserted an understanding of women within the traditional sameness/difference paradigm and pushed back on the legitimacy of Justice Ginsburg’s feminist jurisprudence to challenge her at every turn.54 Analysis of Justice Scalia’s dissent next to Justice Ginsburg’s majority opinion underscores the constitutive power of judicial voice, as it is plainly observed that the rhe­tori­cal commitments of each justice constitute very different boundaries for making sense of the Constitution, the role of the court, and the rights and responsibilities of the US citizenry. The opening sentence of Justice Scalia’s dissent recentered the male eye of the law and challenged the legitimacy of Justice Ginsburg’s commitment to skepticism. He announced: “Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.”55 Whereas Ginsburg’s voice of progress denounced VMI for “perpetuating his­tori­cal patterns of discrimination” and condemned the school for failing to adjust its “historic and constant plan,” Scalia’s voice of preservation praised VMI for its steadfast commitment to history and for safeguarding longstanding traditions.56 Justice Scalia’s rheto­ric certainly trumpeted a patriarchal perspective. He warned, “It would be a tremendous loss to scrap VMI’s history and tradition.”57 Scalia’s exclusionary standpoint rang clear when his sweeping voice announced that the court’s ruling in United States v. Virginia “ignores the history of our people.”58 Of course, Justice Scalia’s history—his story of our people—refused to include those citizens marginalized and excluded by patriarchal traditions. Justice Scalia balked at Justice Ginsburg’s narrative of sex discrimination and marked Ginsburg’s skeptical judicial stance as illegitimate and out-­of-­ bounds. He charged: “The assertion that tradition has been unconstitutional through the centuries is not law, but politics smuggled into the law.”59 Certainly, the conservative constitutional vision that framed Scalia’s dissent has the advantage of aligning with the law’s traditional generic commitments to objectivity, abstraction, and closure. From this vantage point, Justice Ginsburg’s commitments to skepticism and antisubordination are swiftly cast as improper and unconstitutional. Justice Scalia’s patriarchal politics, on the other hand, are comfortably shielded within the traditional masculinist scripts of the law. His dissent was altogether unresponsive to the claim that VMI’s admission policy was unfair to women. Scalia chastised the court majority as a “self-­righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect Union’ ” and forcefully de-

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nied the context of sex discrimination that warranted Justice Ginsburg’s rigorous scrutiny of VMI’s exclusion of women.60 Justice Scalia’s conservative judicial voice followed the generic script of abstraction as he spoke in broad generalities and maintained that women were distinctly different from men. Scalia’s universalizing rheto­ric pointed to “typically female tendencies,” characterized women “as a group,” and announced that men and women possess “differing developmental needs that are deep-­seated.”61 Whereas Justice Ginsburg’s rheto­ric interrupted the logic of the sameness/difference paradigm, Scalia’s rheto­ric echoed the patriarchal voice of abstraction heard in Muller, Goesaert, and Hoyt as he insisted on the legitimacy of women’s difference as the organizing logic of equal protection analy­sis. Justice Scalia criticized Justice Ginsburg for toughening the standards of intermediate scrutiny; specifically, he feared that her reasoning disrupted the traditional sex line between men and women. He exclaimed: “I note that the court . . . provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the court’s theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.”62 Regardless of the skills and aspirations of in­di­vidual women, Justice Scalia argued for the preservation of traditional gender roles and maintained that some activities and opportunities should remain off-­ limits to women. The off-­limit areas cited by Scalia, of course, reflected the traditional ideals of masculinity that he sought to preserve: football, wrestling, and the educational experience of VMI. For Scalia, the differences between men and women are so profound that the institution’s masculine method of education would be destroyed by the presence of women. He announced: “Virginia’s options [are] an adversative method that excludes women or no adversative method at all.”63 Echoing the patriarchal voice of the law observed in Muller, Goesaert, and Hoyt, the rheto­ric of abstraction in Scalia’s dissent warranted a sharp and fixed line between men and women, authorized an exclusionary notion of sex-­specific spheres, and advised that women are properly conceptualized by the law as a group. Justice Scalia amplified his commitment to abstraction as he rejected the legitimacy and practicality of Justice Ginsburg’s insistence that the law protect those that fall outside norms and averages. He argued, “Classification need not be accurate ‘in every case’ to survive intermediate scrutiny so long as, ‘in the aggregate,’ it advances the underlying objective. There is simply no support in our cases for the notion that a sex-­based classification is invalid unless it relates to characteristics that hold true in every instance.”64

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Justice Scalia’s dissenting voice reasserted the law’s discursive tradition of certainty and absolutism to defend the practice of sex classification rooted “in the aggregate.”65 His dissenting opinion certainly exemplified the monologism that animates the traditional voice of the law. Scalia criticized Justice Ginsburg and the court majority for refusing to rule with a monologic voice, that is, for turning to considerations of context and for asking questions of the excluded that complicate the decontextualized and finalized voice of the law. And he berated the court majority for failing to provide clear and direct guidelines for lower courts: “Our task is to clarify the law, not to muddy the waters,” he wrote. “The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-­a-­boo.”66 Justice Scalia’s dissent was sprinkled with colorful insults that attacked Justice Ginsburg’s commitment to context and chastised her careful attention to those who are excluded by the logics of essentialism and universalization. He described the majority opinion as “irrelevant or erroneous as a matter of law” and condemned the majority for its “do-­it-­yourself approach to fact-­finding.”67 According to Justice Scalia, the primary role of the Supreme Court is to provide clarity and certainty for lower courts, and Justice Ginsburg’s feminist jurisprudence is cast as an irresponsible departure from this important role. In the closing lines of his dissent, Scalia pointed to VMI’s mission statement and proclaimed: “As I have discussed (and both courts below found) that mission is not ‘great enough to accommodate women.’ ”68 Scalia’s emphatic closing statement echoed his sweeping and absolute jurisprudential reasoning to reassert the sameness/difference paradigm and to wholly dismiss Justice Ginsburg’s jurisprudential commitment to context. The law’s generic commitment to closure also steered Justice Scalia’s VMI dissent and lent authority to his conservative constitutional vision. In addition to providing clear and certain guidance to lower courts, Justice Scalia maintained that a sec­ond duty of the United States Supreme Court was to protect and conserve societal values and traditions. He wrote: “In my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.”69 Justice Scalia characterized the court as a protector of “constant and unbroken national traditions” and the keeper of an unwavering Constitution.70 In contrast to Justice Ginsburg’s insistence that constitutional principles be responsive to considerations of context, Justice Scalia leaned on the language of closure to insist on an interpretation of constitutional principles that is stable, fixed, and settled. He insisted: “Longstanding national traditions [are] the

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primary determinant of what the Constitution means.”71 Justice Scalia’s rheto­ric of closure sharpened his criticism that Justice Ginsburg’s majority opinion reflected only “one of many smug assurances of each day” and amplified his framing of the court’s ruling as a threat to the stability of the constitutional order. Within the parameters forwarded by Justice Scalia’s scathing dissent, Justice Ginsburg’s progressive reasoning is reframed as unfounded and capricious. Citing his own dissent in the 1990 case of Rutan v. Republican Party of Illinois, Scalia argued: “It is my view that ‘when a practice not expressly prohibited by the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.’ ”72 He continued, “The all-­male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men.”73 Scalia’s voice of closure insisted on the importance of tradition and forwarded a vision of constitutional principles as fixed—frozen at the founding. His conservative constitutionalism pushed against Justice Ginsburg’s feminist jurisprudence to defend a legal standpoint of privileged masculinity and to forcefully reassert the traditional rhe­tori­cal boundaries of legal imagination. The traditional voice of the law, as we have seen, actively works to disqualify the search for excluded voices and perspectives. The scripts of objectivity, abstraction, and closure shield the court’s masculinist bias from question, permit the judiciary to ignore the lived and diverse experiences of women, and encourage the disregard of citizen voices and societal shifts. Justice Scalia’s rheto­ric in United States v. Virginia exemplifies these exclusionary rhe­tori­cal functions. Importantly, Justice Scalia’s dissent also demonstrates that the traditional voice of the law comfortably aligns with a conservative constitutional vision. Justice Scalia’s conservative judicial voice undermined Justice Ginsburg’s call for a skeptical judicial stance, dismissed her commitment to antisubordination, and cast her progressive vision as constitutionally unfounded and wildly illegitimate.

The Rhetorical Boundaries of Legal Language: The Promise of Justice Ginsburg’s Progressive Judicial Voice More than twenty years after she penned her groundbreaking brief in Reed v. Reed, Justice Ruth Bader Ginsburg voiced a rheto­ric of skepticism, context, and responsiveness to warrant her vision of progressive constitutionalism in United States v. Virginia. Neil Siegel recalls Ruth Bader Ginsburg’s

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Supreme Court confirmation hearing, during which she advocated for this vision: “Rather than regarding a judge as constrained by the origi­nal understanding . . . she expressed her belief that the meaning of the Constitution changes over time, as each generation of Ameri­cans seeks to perfect constitutional ideals that were origi­nally articulated by the Founders. They perfect these ideals in part by broadening the universe of beneficiaries.”74 Examination of United States v. Virginia demonstrates how Justice Ginsburg’s judicial voice of skepticism, context, and responsiveness makes way for a progressive reading of the United States Constitution. When President Clinton introduced Ruth Bader Ginsburg as his nominee to the United States Supreme Court, he pointed to the broad demo­cratic promise of her feminist jurisprudence. “Throughout her life,” the president stated, “she has repeatedly stood for the individual, the person less well-­off, the outsider in society, and has given those people greater hope by telling them they have a place in our legal system, by giving them a sense that the Constitution and the laws protect all the Ameri­can people, not simply the powerful.”75 In VMI, Justice Ginsburg advanced this inclusive constitutional vision. Her attention to history—to the traditions of injustice that inform our constitutional story—and her commitment to antisubordination widened the boundaries of equal protection analy­sis and strengthened its promise. The significance of Justice Ginsburg’s progressive judicial voice in VMI must be understood within the context of the Rehnquist court, led by William Rehnquist, a judicial conservative, and packed with appointees that Ronald Reagan and George H. W. Bush selected to steer the court to the far right.76 Robert Post and Reva Siegel note, “It is well documented that the Reagan Justice Department self-­consciously and successfully used judicial appointments to alter existing practices of constitutional interpretation and so to change constitutional meaning to bring it more into line with the beliefs of the supporters of the Reagan revolution.”77 Justice Ginsburg was the first Supreme Court justice appointed by a Democratic president since 1967. Within this context, Justice Ginsburg’s majority opinion may also be read as an act of judicial dissent. In United States v. Virginia she not only challenged the traditional rhe­tori­cal commitments of the law but also confronted the conservative judicial philosophy that is sheltered within the law’s traditional voice. Georgetown Law professor Robin West argues that modern constitutional debate is of­ten animated by clashing visions of conservative and progressive constitutionalism. Each vision endorses a different answer to the following question: “Should the Constitution be read, and the courts used, as a vehicle to preserve existing social and private orderings against majoritarian po­liti­cal change, making it an essentially conservative document,

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protecting the status quo against demo­cratic excess, or should it be read and implemented in such a way as to facilitate continuous, inventive, challenges to the dominant private and social order, making it a guarantor of at least progressive inspiration, if not progressive change?”78 The rhe­tori­cal commitments that shape the opinions of Justice Ginsburg and Justice Scalia encourage very different answers to this question and illustrate how legal language functions to police the boundaries of constitutional meaning. Justice Scalia’s opinion underscores the plain fact that the rhe­tori­cal scripts of objectivity, abstraction, and closure constitute explicitly conservative parameters for making sense of the Constitution—parameters that celebrate the status quo and guarantee the controlling perspective of patriarchal bias. From a feminist perspective, Baer asserts that a progressive constitutional vision is absolutely imperative: “For feminists, the choice between modes of interpretation may be a choice between approaches which permit male bias and approaches which ensure it.”79 The VMI opinions demonstrate that these two visions of constitutionalism—articulated through very different rhe­tori­cal scripts—carry dramatically divergent parameters for thinking and reasoning about the rights of Ameri­can women. Importantly, Justice Ginsburg’s United States v. Virginia opinion unsettled the conservative rhe­tori­cal boundaries that routinely ensure male bias in the law to authorize a feminist jurisprudence and award license to her progressive reading of the United States Constitution. Addressing her largest audience to date, Ginsburg skillfully legitimated her progressive constitutionalism by positioning VMI within a stable thread of constitutional history. Her rheto­ric of responsiveness provided the legitimizing warrant for her argument; that the recognition of excluded perspectives and the inclusion of marginalized citizenships fit neatly within the trajectory of our progressive Constitution. Although Justice Ginsburg’s progressive constitutionalism certainly builds upon the legacies of justices that have come before her—she cites Chief Justice Earl Warren and Justice Thurgood Marshall as important influences—her vision speaks directly to the equal citizenship of Ameri­can women in a way that her predecessors’ visions did not. Justice Ginsburg’s defense of progressive constitutionalism also speaks directly to conservative critics who have argued that progressive constitutionalism cannot lay claim to the United States Constitution. Unsettling this conservative logic, Justice Ginsburg firmly anchored her constitutional vision to the aims and structure of the United States Constitution. For legal scholars Robert Post and Reva Siegel, progressives in the United States need a clear constitutional vision that is capable of defending their constitutional understandings against conservative mobilization: “Just as the New Right advanced a constitutional nomos rooted in images of family,

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religion, and social control, so progressives need to articulate a convincing vision that will express their own distinctive commitments.”80 Justice Ginsburg’s progressive judicial voice advises a constitutional nomos rooted in the Fourteenth Amendment’s equality guarantee, and her VMI rheto­ric forwards a legitimizing script for progressive claims on the United States Constitution. Elizabeth Wydra, president of the Constitutional Accountability Center, echoes Post and Siegel when she argues that progressives of­ ten fail to anchor their po­liti­cal and legal arguments to the text and history of the US Constitution. Wydra asserts, “By laying claim to the most important document in our nation’s history and pointing to it as the North Star of America’s progressive values and goals, progressives can reach a broader audience.”81 Importantly, Justice Ginsburg’s legal argument has long framed the United States Constitution as the North Star that Wydra describes here. During her Supreme Court confirmation hearing, Ginsburg defended her progressive constitutional vision, stating: “I think the Framers were intending to create a more perfect union that would become ever more perfect over time.”82 In VMI, she confronted the conservative legal scripts of fixity and closure to champion a vision of the US Constitution as a document with antisubordination ends. Thus, a significant contribution of Justice Ginsburg’s VMI rheto­ric and a cornerstone of her broader rhe­tori­cal legacy is how she has consistently rooted progressive values in the United States Constitution. For Justice Ginsburg, the true genius of the United States Constitution is in its progressive movement toward “a more perfect Union,” and her rheto­ric of skepticism, context, and responsiveness makes way for such movement. Equally significant as Justice Ginsburg’s rheto­ric of progress and forward movement is how her feminist judicial voice insists on the visibility of sex discrimination and other histories of injustice and exclusion that have shaped our nation’s constitutional story. In her Reed v. Reed brief and here in VMI, Ginsburg pushes back against the law’s discursive traditions to insist on theorizing women’s equal citizenship stature in his­tori­cal context— fully informed by the centuries of patriarchal discrimination against them. As Cary Franklin astutely advised, “too much emphasis on the progressive or forward-­looking nature of living constitutionalism can obscure the degree to which Ginsburg’s jurisprudence engages with the past. Her opinions of­ten recount neglected stories—histories of discrimination that illuminate important aspects of contemporary questions in equal protection law.”83 Importantly, Justice Ginsburg’s rhe­tori­cal legacy disqualifies the legitimacy of blindness as a guiding interpretive principle of constitutional equality law.84 While the interpretive postures of sex blindness and color blindness are bolstered by the traditional voice of the law, Justice Ginsburg’s

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VMI opinion demands that the nation’s histories of exclusion and deep traditions of discrimination be visible and centered in the court’s equal protection analy­sis. Justice Ginsburg’s VMI opinion teaches that the court’s doctrine of equality must be governed by the pursuit of antisubordination. Ginsburg demanded that the court acknowledge his­tori­cal patterns of discrimination, carefully consider context and difference, and respond to records of exclusion and injustice with a commitment to corrective action. Although some feminist legal scholars have sharply criticized Ruth Bader Ginsburg for her supposed commitment to formal equality, the close analy­sis of her judicial voice provides ample evidence, once again, that Justice Ginsburg is no formalist. Advocates of formal equality argue that equality is properly conceptualized as sex-­blind—that men and women should be treated as the same by the law. In contrast, as Jack Balkin and Reva Siegel explain, an antisubordination vision of equality, like the one observed in VMI, “is not just the Aristotelian insistence that like cases be treated alike.” Instead, they write, “it is about the struggle against subordination in societies with entrenched social hierarchies. It is about the lived experience of people on the bottom who strive for dignity and self-­respect. And it is about the structures and strategies, institutions and practices that continually deny them this prize all the while professing to bestow it.”85 The antisubordination vision of equality that Justice Ginsburg advanced in VMI holds important promise—not only for the future of women’s right’s litigation but also for protecting a wide range of Ameri­cans excluded by the traditional voice of the law. In the two decades following United States v. Virginia, Justice Ginsburg has consistently invoked the principle of antisubordination that she forwarded in VMI to broaden the reach of the court’s equal protection jurisprudence, calling attention to the rights of citizens marginalized by race, sexuality, disability, and economic disadvantage.86 Importantly, the woman question introduced in Ruth Bader Ginsburg’s 1971 Reed brief is broadened in United States v. Virginia to ask a more encompassing question of the excluded. This rhe­tori­cal move—to orient the court’s reasoning from the standpoint of those marginalized, left out, and silenced by the law’s traditional voice—disrupts the privileged eye of the law and warrants a jurisprudence that is more capable of protecting the rights of a diverse and shifting citizenry. As Franklin asserted, “some of the most profound implications of Ginsburg’s opinion in VMI concern how we ought to understand the constitutional project of equal protection—as much in the context of race as in the context of sex.”87 In recent years, conservative justices on the Supreme Court have embraced a logic of color blindness to strike down civil rights statutes, affir-

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mative action policies, and school integration plans. Justice Ginsburg has forcefully argued against the conservative court majority to reassert a corrective vision of equal protection that is race conscious. Her bench dissent in Fisher v. University of Texas (2013) made this point plain.88 She protested, “I have several times explained why government actors, in­clud­ing state universities, need not blind themselves to the still-­lingering, everyday evident, effects of centuries of law-­sanctioned inequality.”89 When the case of Fisher v. University of Texas returned to the court in 2016, Justice Kennedy changed course and invoked Justice Ginsburg’s pointed words from her 2013 dissent to declare that the university’s race-­conscious admissions plan was indeed constitutional. Justice Ginsburg’s rhe­tori­cal legacy demands that a proper jurisprudence must be geared toward remedying the traditions of exclusion that have limited the reach of equal protection through­out our nation’s history. This corrective vision of equal protection is necessary for the protection not only of women’s rights but of the rights of all groups whose experiences of Ameri­can citizenship are rooted in deep traditions of injustice and exclusion. It is important to emphasize that Justice Ginsburg’s VMI opinion was an outright rejection of the law’s monologic voice. Her rhe­tori­cal commitments to skepticism, context, and responsiveness result in what can accurately be described as a jurisprudential voice of rhe­tori­cal action.90 This voice—responsive to the citizenry, embedded in pub­lic culture—stands in direct contrast to the antirhe­tori­cal posture that is propped up by the traditional scripts of legal discourse. The possibility of a more dialogic and responsive law is promising for citizens who have long been excluded by the monologic scripts of legal discourse. As clearly observed in the voice of Justice Scalia, these scripts protect the status quo, bolster the standpoint of the privileged, and undermine the desirability of social change. Gerald Wetlaufer reiterates the discursive force of this rhe­tori­cal tradition: “The intended and actual effect is closure: the matter has been decided and the right answer has been found.”91 Writing in 1996, the same year Ginsburg penned her VMI opinion, Hasian, Condit, and Lucaites called for a more honest portrayal of the judiciary: “Instead of promoting itself as a body outside politics, we believe that the judiciary should promote itself as an institution that attempts to generate reasonable decisions, of­ten entailing reasonable compromises, about important po­liti­cal issues. It is further a body charged with estimating when old principles must be supplanted or supplemented with new. This self-­ portrait would not necessarily be more convincing to those who now chastise the Court as partisan when they disagree with any given decision, but it would more accurately portray the Court’s activity without conceding the

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claim to the reasonableness of its goals and procedures.”92 There are wide and significant implications for Justice Ginsburg’s rhe­tori­cal portrayal of the law. Appreciating the Supreme Court as a rhe­tori­cal institution, for one, lends citizens a participatory agency in constitutional law that is unthinkable within the traditional paradigm.93 As chapters 4 and 5 demonstrate, Justice Ginsburg’s voice of rhe­tori­cal action activates a communicative pathway between the court and the Ameri­can citizenry on a wide range of issues. Indeed, this is a pillar of her remarkable feminist legacy. Her rhe­ tori­cal jurisprudence has welcomed previously marginalized voices, legitimated alternative perspectives, and defended a demo­cratic reimagining of Ameri­can law. The promise of Justice Ginsburg’s judicial voice in United States v. Virginia should not obscure the significance of Justice Scalia’s traditional rheto­ ric. Leading legal voices continue to forcefully reafirm the generic scripts of the law to protect the status quo and guarantee the controlling perspective of patriarchal bias. In the years following United States v. Virginia, the high court has repeatedly voiced a conservative rheto­ric of objectivity, abstraction, and closure to restrict and limit the legal rights of Ameri­can women. Dahlia Lithwick describes the conservative shift on the court following VMI: “Indeed, the replacement of moderate Sandra Day O’Connor with Samuel Alito may have produced the most consequential shift at the Court in our lifetimes; in a few short years O’Connor’s pragmatic legal doctrine in areas ranging from abortion to affirmative action to campaign finance reform has been displaced by rulings that would make Edwin Meese’s heart sing.”94 Edwin Meese, Ronald Reagan’s attorney general, was perhaps best known for his conservative scheme to reshape the Supreme Court around a jurisprudence of origi­nal intent. Certainly, the commitments to objectivity, abstraction, and closure push in the direction of conservative constitutionalism. Today, Justice Ginsburg’s most important rhe­tori­cal work can be found in her dissenting opinions. Her judicial voice of dissent continues to challenge the traditional voice of the law and has transformed the justice into a liberal icon, as she frequently challenges the conservativism of the Roberts court to insist on more progressive and inclusive boundaries for making sense of the Unites States Constitution, the role of the judiciary, and the rights and responsibilities of the Ameri­can citizenry.

4

Confronting the Boundaries of Abortion Jurisprudence Justice Ginsburg’s Equality Rationale in Gonzales v. Carhart

Justice Ruth Bader Ginsburg’s dissenting voice has transformed her into a liberal icon. A growing market of Ruth Bader Ginsburg T-­shirts emblazoned with phrases like “I Dissent” and “You Can’t Tell the Truth Without Ruth” testify to an increasing fascination with the justice, who has become the leading liberal voice on the modern Supreme Court. While Ginsburg has won many legal victories through­out her career, her voice of dissent— which emerged forcefully in Gonzales v. Carhart—is central to her rhe­tori­ cal legacy. The slate of decisions handed down by the Supreme Court in 2007 was one of the most anticipated sets of rulings in recent history. The Supreme Court had a decidedly new makeup: President George W. Bush appointed John Roberts in 2005 and Samuel Alito in 2006, and the spring of 2007 brought the first full slate of decisions handed down by the Roberts court. It was our first look at how the new court would rule, and it provided the first opportunity to examine its rhetoric. Two of the most anticipated cases on the docket dealt with questions of women’s rights. Gonzales v. Carhart addressed questions of reproductive rights and Ledbetter v. Goodyear Tire & Rubber Co. addressed questions of equal pay.1 In both cases, the new court ruled against protecting or extending women’s rights. In an unprecedented move for Justice Ruth Bader Ginsburg, she expressed her disapproval of the court’s decisions by reading two dissenting opinions aloud from the bench. Justice Ginsburg’s pub­lic protest marked a shift in her tenure on the high court and signaled the beginning of a series of full-­throated dissents that Ginsburg authored to challenge the rulings of the conservative Roberts court. Asked about the shift in her ju-

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dicial voice, Ginsburg stated, “Perhaps I am a little less tentative than I was when I was a new justice. But what really changed was the composition of the Court.”2 Justice Ginsburg’s voice of dissent, it is true, emerged in response to the most conservative Supreme Court in decades. Remarking on the significance of Ginsburg’s pub­lic dissent in Gonzales v. Carhart, Linda Greenhouse said, “Whatever else may be said about the Supreme Court’s current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.”3 While Justice Ginsburg has certainly been a vocal advocate of women’s rights through­out her career, Greenhouse underscored the rare quality of Ginsburg’s rhe­tori­cal act: “To read a dissent aloud,” she explained, “is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year.”4 Justice Ginsburg’s dissenting opinions stood in bold opposition to the Roberts court. Her dissenting opinion in Gonzales v. Carhart also stood in bold opposition to the generic requirements of judicial rhetoric. Speaking for three of her colleagues, Justice Ginsburg’s feminist voice demanded a space in the language of abortion law to ask the woman question. Just as she shifted the boundaries of equal protection in United States v. Virginia, Justice Ginsburg’s feminist rheto­ric in Gonzales v. Carhart was transformative: it articulated an alternative equality rationale for reproductive rights, and it shifted the language of the law to legitimate the voices of women and the experiences of pregnancy traditionally excluded by the conventional borders of legal discourse. While pub­lic memory of­ten celebrates the 1973 Supreme Court ruling in Roe v. Wade as a feminist victory, the rheto­ric of Roe v. Wade followed the traditional generic scripts of the law and reaffirmed the controlling perspective of patriarchal bias.5 Justice Harry Blackmun’s Roe opinion reasoned within the rhe­tori­cal borders forwarded by the separate spheres opinions— he framed all women as potential mothers and reasserted an ever-­present need for male guidance and protective oversight. The medical framework that justified a right to privacy in Roe affirmed the primacy of male authority and wrote women out of the abortion decision. In a recent interview, Ginsburg remarked upon the problematic rheto­ric of Roe: “So the view you get,” she explained plainly, “is the tall doctor and the little woman who needs him.”6 The rheto­ric of Roe v. Wade failed to validate the voices of women. The court effectively disqualified the agent status and personhood of women, ruling their lives and gendered meanings impotent in the abortion debate. Thus, it is no surprise that the right to abortion secured in Roe has been consistently narrowed over the years. Garrett Epps recently asked: “Forty-­one years after the Supreme Court held that women have the right

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to choose between childbirth and abortion, little remains of what was once a ‘fundamental right.’ How did we get here?”7 One answer to this question can be found in the rheto­ric of Roe. The discursive boundaries constituted through Roe’s rheto­ric provided a host of warrants for future judges and legislators to limit and restrict women’s reproductive rights. The Supreme Court’s 2007 decision in Gonzales v. Carhart continued this pattern and upheld a restriction on late-­term abortions without an exception to safeguard women’s health for the very first time. Even while the promise of Roe has been limited, the women’s health exception was repeatedly affirmed and remained a cornerstone of the court’s decisions on reproductive rights until 2007. The decision handed down in 2007 was a response to a pair of cases—Gonzales v. Planned Parenthood Federation of America and Gonzales v. Carhart—that asked the court to determine whether the Bush Administration’s Partial-­Birth Abortion Ban Act of 2003 was constitutional.8 The act was signed into law by President George W. Bush on No­vem­ber 3, 2003, and was immediately challenged and declared unconstitutional by three US district courts. The federal government appealed the district court rulings, and the Eighth Circuit Court of Appeals upheld the ruling that the act was unconstitutional because it lacked an exception for women’s health. Attorney General Alberto Gonzales petitioned the Supreme Court to review the Eighth Circuit decision. The Supreme Court’s decision to uphold the act was notable not only because the act failed to uphold precedent and include the health exception but also because it was the first decision handed down on abortion rights by the Roberts court, revealing a rightward shift and an uncertain standing for reproductive rights under the high court’s new makeup. The ideological shift in the court was especially evident considering that the court had ruled just a few years earlier in Stenberg v. Carhart that an almost identical abortion restriction was unconstitutional because it lacked a health exception.9 Reading her dissenting opinion aloud from the high bench, Justice Ginsburg admonished the ideological maneuverings of the court majority and insisted that the lived experiences of women at the heart of reproductive control receive a pub­lic hearing. Writing for Salon, Rebecca Traister described Ginsburg’s scathing dissent: “When she read aloud from the bench a summary of her dissent in Gonzales v. Carhart, her words were incandescent, shimmering with rage and steely reason. The protection of reproductive rights, she said, is not a matter of ‘some vague or generalized ­notion of privacy’ but of  ‘a woman’s autonomy to decide for herself her life’s course, and thus to enjoy equal citizenship stature.’ ”10 Gonzales v. Carhart is a defining moment in Justice Ruth Bader Ginsburg’s rhe­tori­cal legacy. Her dissenting voice confronted the boundaries

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of abortion jurisprudence to enact a feminist jurisprudence and assert an equality rationale for abortion rights. Ginsburg’s dissent in Gonzales v. Carhart also foreshadowed her role as the leading voice of dissent on a bitterly divided court.11 Reflecting on her voice of dissent, Ruth Bader Ginsburg recently explained: “My dissenting opinions, like my briefs, are intended to persuade. And sometimes one must be forceful about saying how wrong the Court’s decision is.”12 In response to the court’s decision in Gonzales v. Carhart, Justice Ginsburg not only advanced a persuasive case for why the court’s ruling was wrong but also insisted that the generic commitments to neutrality, abstraction, and universality were fundamentally wrong and inconsistent with a just and inclusive vision of women’s equal citizenship stature.

Challenging Neutrality: Reframing Abortion Restriction as Sex Discrimination Justice Ginsburg’s feminist dissent in Gonzales v. Carhart continued her ongoing challenge to the law’s myth of neutrality. This is especially significant in her Gonzales dissent, as it allowed her to reframe the restriction on women’s reproductive control before her as sex discrimination and to warrant an equality rationale for abortion rights. Yale Law Research Scholar Priscilla Smith argued that the privacy framework advanced in Roe made it difficult to unearth patriarchal bias, noting, “skeptical evaluation of state interests and legislative purpose with an eye toward discriminatory motives has become mostly unavailable under liberty jurisprudence.”13 Justice Ginsburg’s Gonzales dissent recentered this skepticism. The rhe­tori­cal form of her feminist jurisprudence—observed in her Reed brief, her VMI opinion, and her Gonzales dissent—begins by confronting the tradition of patriarchal reasoning and discrimination against women in Ameri­can law. This rhe­tori­cal form primed her audience to assess the court’s controlling opinion in Gonzales and to evaluate the court’s reasoning for restricting women’s reproductive rights through a lens of skepticism. Although feminist jurisprudence is a broad perspective that encompasses a multiplicity of criti­cal viewpoints, feminist legal scholars agree that a feminist jurisprudence must begin with an understanding of the role of the law as an instrument of patriarchy.14 Justice Ruth Bader Ginsburg’s feminist rheto­ric is aimed at making this point clear. While the traditional voice of the law extols the high court as objective, impartial, and operating above politics, a feminist jurisprudence insists upon the situated nature of judges and contends that the court is informed by and contributes to po­liti­cal life in significant and profound ways. Justice Ginsburg’s voice of rhe­tori­cal action emphasized the situated nature of jurispru-

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dence and carefully illustrated how the constitutional rights of women have broadened alongside shifts in gender norms and cultural attitudes. Pointing to Justice Harlan’s myopic view of women’s rights and responsibilities in Hoyt v. Florida, she explained, “ ‘ There was a time, not so long ago,’ when women were ‘regarded as the center of home and family life, with attendant special responsibilities, that precluded full and independent legal status under the Constitution.’ ”15 Ginsburg’s dissent connected the regulation of pregnancy to sex-­role stereotypes of the separate spheres tradition—stereotypes that she insisted were no longer acceptable: “Those views, this Court made clear in Casey, ‘are no longer consistent with our understanding of the family, the individual, or the Constitution.’ ”16 Relying on a form strikingly similar to her Reed brief and her VMI opinion, Justice Ginsburg’s frank accounting of the role of the law in women’s subordination began her argument and anchored her feminist dissent in Gonzales v. Carhart. A sec­ond hallmark of her rhe­tori­cal form is the narration of forward movement. A vision of societal and constitutional progress sharpened her critique that the Gonzales decision was out of step with a progressive Constitution and inconsistent with a more just and inclusive vision of women’s reproductive rights. Remarking specifically on the reasons provided by the majority for upholding the Partial-­Birth Abortion Ban Act, she asserted, “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution, ideas that have long since been discredited.”17 Notably, Justice Ginsburg turned to Muller v. Oregon (1908) and Bradwell v. Illinois (1873) to remind her audience of the court’s history of sex discrimination. Citing Muller v. Oregon, she quoted Justice Bradley’s masculinist logic: “Man is, or should be, woman’s protector and defender.”18 And turning next to Bradwell v. Illinois, she cited Justice Brewer, who proclaimed: “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”19 Reading these statements aloud from the bench in 2007, Justice Ginsburg’s feminist voice demanded that the history of sexism within the United States Supreme Court be acknowledged. Turning then to recite a portion of her own majority opinion in United States v. Virginia, Ginsburg emphasized recent progress and anchored her dissent to the legal doctrine of antidiscrimination: the “State may not rely on ‘overbroad generalizations’ about the ‘talents, capacities, or preferences’ of women; ‘such judgments have . . . impeded . . . women’s progress toward full citizenship stature through­out our Nation’s history.’ ”20 Justice Ginsburg framed her colleagues as out of step with a more inclusive and progressive vision of Ameri­can women’s citizenship. She collapsed the Gonzales opinion into the patriarchal reasoning of Muller and Bradwell and into a long line of cases that have denied Ameri­can women equal personhood and citizenship stature under the law.

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At this point in our examination of Justice Ginsburg’s judicial voice, it is clear that her feminist jurisprudence takes on a recurrent rhe­tori­cal form. Her 1973 Reed brief, her 1996 United States v. Virginia opinion, and her 2007 Gonzales dissent all begin by detailing a history of discrimination against Ameri­can women. Her jurisprudence insists that sex discrimination is visible in the law; this is the starting point of her judicial reasoning. In each of these cases, Ginsburg’s voice eventually pivots to acknowledge significant societal progress, moral enlightenment, and constitutional reform. The rhe­tori­cal form of Justice Ginsburg’s feminist jurisprudence places pressure upon the judiciary to be responsive to its citizenry. This rhe­tori­cal form also lends legitimacy to Justice Ginsburg’s voice of rhe­tori­cal action, as her reasoning positions the law as embedded in pub­lic culture and appropriately responsive to considerations of context and social change. Justice Ginsburg delegitimized the decision in Gonzales v. Carhart and built her case against the myth of law’s neutrality by characterizing the majority opinion as not only sexist but also driven by extreme po­liti­cal motives. She described the court’s decision as “flimsy and transparent,” “bewildering,” and “irrational” and raised suspicion about the motives of her colleagues through­out her dissent.21 She wrote, “Ultimately, this Court admits that ‘moral concerns’ are at work, concerns that could yield prohibitions on any abortion. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.”22 Her dissent cast the majority as deceptive, accusing them of “brush[ing] [evidence] under the rug” and “giv[ing] short shrift to the records before us.”23 Taking direct aim at these po­liti­cal maneuverings, Justice Ginsburg boldly proclaimed, “The Court’s hostility to the right Roe and Casey secured is not concealed.”24 While the widely accepted ethos of the Supreme Court justice is one that is prudent and measured, the accusation that the court is hostile to women’s rights jumped from the page of Ginsburg’s dissent. Interestingly, Justice Ginsburg advanced her challenge to the myth of law’s neutrality by deconstructing the antiabortion rheto­ric of the majority opinion. She observed, “Throughout, the opinion refers to obstetrician-­ gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label ‘abortion doctor.’ A fetus is described as an ‘unborn child’ and ‘baby.’ ”25 Here, Justice Ginsburg refused to let Justice Kennedy’s ideological rheto­ric stand unchallenged. Her jurisprudence exposed the po­liti­cally charged language of her colleagues in an attempt to undermine the Gonzales decision and highlight the bias of the court. Perhaps Justice Ginsburg’s most damning attack, though, was her response to Justice Anthony Kennedy’s argument that women who have abortions come to regret the decision and suffer from severe depression and loss of esteem. “Revealing in this regard,” Ginsburg responded, “the Court

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invokes an anti-­abortion shibboleth for which it concededly has no reliable evidence.”26 Justice Ginsburg’s dismissal of Kennedy’s argument as a shibboleth—an empty and politicized argument—colored the Gonzales decision with extremity and unsettled the presumed neutrality of legal opinion. Remarking on the myth of neutrality that governs legal rhetoric, Ferguson writes, “The monologic voice of the opinion can never presume to act on its own. It must instead appear as if forced to its inevitable conclusion by the logic of the situation and the duties of office, which together eliminate all thought of an unfettered hand.”27 Notably, Justice Ginsburg’s feminist protest of the Gonzales decision brought the court’s unfettered hand into stark view. Justice Ginsburg’s feminist dissent exposed a tradition of sexism in the law and primed her audience to see the abortion restriction before the court as sex discrimination. Her feminist jurisprudence highlighted the fluid relationship between politics and the law and emphasized the situated nature of the judiciary. Justice Ginsburg’s voice of rhe­tori­cal action, as clearly seen here and in VMI, stands in opposition to the monologic voice of closure. Gerald Wetlaufer reminds us that traditional legal discourse denies its rhetoricity and functions to promote an understanding of the law as rational, neutral, and objective.28 Justice Ginsburg’s feminist jurisprudence challenges this illusion of neutrality to emphasize that the law is embedded in, draws from, and contributes to pub­lic po­liti­cal life and to question whether this relationship is favorable and just. Robert Rubinson also advocates for a more transparent judicial voice and argues that a polyphonic judicial voice may be achieved by highlighting the situated nature of judges, the way Justice Ginsburg does here.29 The myth of neutrality, however, is deeply embedded in traditional ideas about the nature of a proper functioning judiciary. Ferguson explains: “Somewhere in every judicial decision a belief in neutral judgment deflects criticism. The presumed removal of personal predilections allows all parties to accept a compelled decision, one that every fair judge would reach despite differences in style and approach. Hidden in the belief is a vital strategy of explanation; the assumption of a neutral decision is the easiest way—some would say the only way—to convince a demo­cratic society that independent judges work within the spirit of justice for all.”30 Justice Ginsburg’s feminist jurisprudence challenges the assumption that a commitment to neutrality protects justice for all. Instead, she insists that the consequences of the law on the lives of women and other marginalized citizens must be confronted and central to jurisprudence in a truly just society. While the myth of neutrality perpetuates the idea that ours is a sys­ tem of laws not men, Justice Ginsburg’s opinion reminds us that ours has

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long been a sys­tem of men and that this history must be confronted to protect the rights of Ameri­can women. .

Challenging Abstraction: Writing Women’s Personhood into Abortion Law Justice Ginsburg’s feminist dissent reframed the due process inquiry before the court into a question of equal protection. Her judicial voice challenged the generic commitment to abstraction that renders asking the woman question out of bounds to forward an equality rationale that draws an explicit connection between abortion rights and women’s equal citizenship stature. While the rhe­tori­cal scripts of neutrality and abstraction perpetuate the fiction that justice is blind and that the court works in earnest to secure justice for all, Catharine MacKinnon reminds us that the court is a distinctly masculine institution: “No woman had a voice in the design of the legal institutions that rule the social order under which women, as well as men, live. Nor was the condition of women taken into account or the interest of women as a sex represented. To Abigail Adams’s plea to John Adams to ‘remember the ladies’ in founding the United States, he replied, ‘We know better than to repeal our Masculine systems.’ ”31 One of Justice Ginsburg’s great rhe­tori­cal contributions as an advocate, a lawyer, a judge, and a Supreme Court justice is that she has insisted on writing women’s experiences and voices into the law. Reva Siegel argues, “From the beginning, Justice Ginsburg understood government regulation of women’s reproductive choices as presenting core questions of sex equality.”32 When pressed on the question of abortion at her Senate confirmation hearing, Ginsburg focused her testimony squarely upon the full personhood and equality of women. “The decision whether or not to bear a child is central to a woman’s life, to her wellbeing and dignity,” she asserted. “It is a decision that she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”33 Justice Ginsburg’s Gonzales dissent reframed reproductive free­dom as a condition of women’s equality and required the careful consideration of women’s lived experiences and equal personhood as a necessary component of abortion law. Ginsburg’s bold reframing of abortion from a right of privacy to a right of equality gave voice to the material and profound stakes that women have in their right to reproductive control—stakes that are rendered invisible by a rheto­ric of privacy. Many feminist legal scholars have criticized the Roe v. Wade opinion for framing abortion as a privacy issue, precisely because a privacy framework severs issues of reproductive control from the economic, po­liti­cal, and social experiences of Ameri­can women. Sylvia Law points to

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the language of abstraction that follows from a privacy framework: “The rheto­ric of privacy as opposed to equality, blunts our ability to focus on the fact that it is women who are oppressed when abortion is denied.”34 While Roe v. Wade has been touted as a landmark decision in women’s rights, the legal opinion—decontextualized through a rheto­ric of privacy—followed the generic script of abstraction and said remarkably little about women. As Lynn Henderson aptly noted, “Roe can be characterized as the case of the Incredible Disappearing Woman.”35 For certain, the majority opinion in Roe is revealing for its patriarchal reasoning and for its failure to validate the voices of women.36 The patriarchal doctor-­knows-­best philosophy that anchored the court’s reasoning and the concomitant preoccupation with the rights of (male) doctors instead of the rights of women is evident in the opinion’s conclusion: “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”37 While feminist scholars have identified a host of problems with the court’s reasoning in Roe v. Wade, most insist that the framing of reproductive control as an issue of privacy failed to validate the gendered experiences and personhood of women. The Roe opinion and its rheto­ric of privacy effectively disquali­ fied the woman question and wrote women out of the abortion decision. This absence created a space for future judges and legislators to restrict reproductive rights by deploying well-­rehearsed tropes of paternalistic protection and by amplifying the rheto­ric of fetal personhood. Feminist observers of the court had long hoped that Justice Ginsburg would lead the court in a new direction on reproductive rights—that she would assert a sex equality argument for abortion rights.38 The court’s decision in Gonzales provided Justice Ginsburg with the opportunity to push in this new direction and to write women into the language of abortion law. While her reasoning represented a dramatic break from the privacy precedent, Justice Ginsburg carefully selected key passages from Planned Parenthood v. Casey to reframe reproductive control as an issue of gender equality and to rhe­tori­cally fix her reframing in court precedent. She argued, “In reaffirming Roe the Casey Court described the centrality of ‘the decision whether to bear . . . a child,’ to a woman’s ‘dignity and autonomy,’ her ‘personhood’ and ‘destiny,’ her ‘conception of . . . her place in society.’ ”39 Narrowing in on language that demonstrated a respect for women as competent and able decision makers—“dignity,” “autonomy,” “destiny,” “personhood”— Justice Ginsburg pushed back against the paternalism at the core of the majority opinion and laid the groundwork for shifting the legal framing of reproductive control to a question of women’s equality. In so reframing abortion as an issue of equal rights, Justice Ginsburg

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undermined the singular characterization of woman-­as-­mother, embedded in the abstract language of the law through­out much of history, and substituted a more complex characterization of women as equal pub­lic citizens. Defying the simple reduction of women to their wombs, Justice Ginsburg acknowledged the broad spectrum of contributions that women make to pub­lic life and insisted that women have the right to reach their full potential and to decide for themselves their life course. Rhetorically, the relationship that Justice Ginsburg drew between reproductive control and a woman’s ability to reach her full potential invited her audience to understand pregnancy and motherhood as an obstacle for some women rather than the unquestionable telos that pregnancy and motherhood are framed to be in patriarchal discourses. Feminist scholar Cindy Griffin explains that such an understanding of women’s telos rests at the core of an essentialist ideology that shapes the very boundaries of the pub­lic sphere to undermine the legitimacy of women as pub­lic actors and to marginalize topics like reproductive rights as private concerns.40 Indeed, Justice Ginsburg disrupted this essentialist framework and insisted that the material consequences of abortion restrictions receive a pub­lic hearing. In perhaps the most significant moment of her dissent, Justice Ginsburg concretized the relationship between reproductive control and women’s equal citizenship. She wrote: “Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”41 Here, Ginsburg took direct aim at the failure of abstraction to protect the rights of women, plainly asserting that a generalized notion of privacy failed to capture what is at stake in a woman’s right to reproductive control. Instead, Justice Ginsburg insisted that what is at issue in cases involving abortion rights is women’s equality. Her precedential reasoning pointed to key equal protection decisions, in­ clud­ing her own majority opinion in United States v. Virginia. In so doing, Reva Siegel argues, Justice Ginsburg skillfully “fused the normative power of equality arguments with the textual authority of the Equal Protection Clause.”42 Remarking on the weight of the above passage, legal scholar Cass Sunstein notes, “In the long run, the most important part of the Supreme Court’s ruling on ‘partial-­birth’ abortions may not be Justice Anthony M. Kennedy’s opinion for the majority. It might well be Justice Ruth Bader Ginsburg’s dissent, which attempts, for the first time in the court’s history,

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to justify the right to abortion squarely in terms of women’s equality rather than privacy.”43 As Justice Ginsburg read her dissent aloud from the bench, she boldly reframed the legal issue before her and demanded the court recognize the profound connection between reproductive control and women’s equal rights. Her rheto­ric undermined the abstraction central to a generalized notion of privacy and advanced a gender-­specific framework of equality that positioned reproductive control as a necessary component of women’s full and equal citizenship. Justice Ginsburg’s insistence that women be acknowledged as equal citizens—as capable decision makers and valuable contributors to the life of the nation—advanced the very personhood of women as a warrant for reproductive rights. For Siegel, “restrictions on abortion reflect the kind of bias that is at the root of the most invidious forms of stereotyping: a failure to consider, in a society always at the risk of forgetting, that women are persons, too.”44 Ginsburg’s rheto­ric inoculated against such bias, as she insisted on a legal framework that protects the full and equal personhood of women. The role of legal rheto­ric as argumentatively constitutive is especially important here. James Boyd White argued that judicial opinions announce, “Here, in this language, is the way this case and similar cases should be talked about.’ ”45 Indeed, Justice Ginsburg’s Gonzales dissent is particularly significant because it insists that here in this language, in the language of women’s full and equal citizenship, is the way that cases involving reproductive control should be talked about. The field of argument that follows from women’s equality holds much more promise for protecting the reproductive rights of women than the abstract framing of abortion as a privacy right. To be clear, justifying abortion as a right of equality requires the woman question and it demands consideration of how abortion restrictions may function as a tool of women’s subordination. Within this framework, protecting women’s full and equal personhood becomes the central concern, while the rhetorics of restriction—from states’ rights to fetal personhood— lose potency and significance as rhe­tori­cal forms.

Challenging Universality: Constructing a Varied and Nuanced Vision of Harm Justice Ginsburg’s feminist dissent also challenged the law’s generic commitment to universality. A rheto­ric of universality supports the law’s voice of finality and closure by subsuming difference and obscuring complexity to suggest a unitary and finalized sense of the world. Thus, Wetlaufer explains, legal “rheto­ric operates by predisposing us to render as black and white that which is gray.”46 While writing women’s gendered and lived experiences

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into legal discourses is a central goal of feminist jurisprudence, it is absolutely necessary to avoid abstract and universal descriptions of women in favor of those that emphasize context and difference. Most feminist scholars now recognize the harm that follows from descriptions of women that purport to be universal. When diversity is obscured in favor of a singular model of woman, this model is implicitly privileged—white, middle-­class, able-­bodied, and heterosexual. Throughout much of the court’s history, as we clearly observed in the separate spheres opinions, a privileged model of domestic motherhood sat at the center of the court’s negotiation of women’s rights. In terms of reproductive rights, the supposed universality of women’s bodies and experiences have especially harmed women whose experiences of pregnancy and motherhood are shaped by socioeconomic disadvantage. As Judith Baer explained, “Roe v. Wade offers no protection to the woman who cannot pay for an abortion, cannot find a qualified professional to perform it, [or] needed help in preventing the pregnancy in the first place.”47 Ultimately, the universal rheto­ric of Roe v. Wade failed to acknowledge the vast differences in women’s lived experiences and left many women unprotected. Justice Ginsburg’s dissent enacted a feminist jurisprudence in Gonzales v. Carhart by demanding the recognition of women’s difference that was left out of Roe v. Wade and by presenting a nuanced and concrete vision of harm that follows from restrictions on women’s reproductive control. One of the most important features of Justice Ginsburg’s dissent was her attention to the concrete ways in which women affected by poverty and violence are harmed by restricted access to abortion. From the start of her dissent, Justice Ginsburg was careful to ask the woman question in varying contexts and to search for difference among women’s experiences of pregnancy and motherhood. She reported, “Adolescents and indigent women, research suggests, are more likely than other women to have difficulty obtaining an abortion during the first trimester of pregnancy. Minors may be unaware they are pregnant until relatively late in pregnancy, while poor women’s financial constraints are an obstacle to timely receipt of services.”48 Rhetorically, Justice Ginsburg’s dissent opened up a space for taking the material experiences of women seriously and gave voice to positionalities and intersecting inequalities that are of­ten excluded from legal discourses. Ginsburg’s feminist voice insisted that the court recognize the very real socioeconomic disadvantage that many women face. She argued, “The Court also identifies medical induction of labor as an alternative [to the prohibited procedure]. That procedure, however, requires a hospital stay, rendering it inaccessible to patients who lack financial resources, and it too is considered less safe for many women and impermissible for others.”49 Follow-

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ing the decision in Roe v. Wade, the Supreme Court handed down several abortion funding decisions that effectively limited abortion rights for poor women. In the 1977 case of Maher v. Roe, the court upheld the right of states to deny Medicaid funding for nontherapeutic abortions while fully subsidizing childbirth. Three years later in the case of Harris v. McRae, the court upheld Congress’s ban on federal abortion funding.50 These decisions were supported, in part, by an understanding of pregnancy and reproduction abstracted from contextual considerations. Here, Justice Ginsburg anchored her jurisprudence to contextual concerns and women’s difference, repeatedly referencing the hardships of poor women, the special constraints of adolescent women, and the experiences of victims of abuse. Her feminist jurisprudence certainly demonstrates the value of asking the woman question in practice. Justice Ginsburg’s broad search for excluded perspectives and silenced voices governed her Gonzales dissent and created the space to insert material realities and to acknowledge important differences among women that were long ignored by the patriarchal scripts that shape abortion law. Justice Ginsburg’s attention to difference resulted in a rheto­ric of complexity and contingency that confronted the court majority’s transcendent voice. Justice Ginsburg’s dissent complicated the court majority’s abstract and of­ten romantic characterization of pregnancy and motherhood by reminding her audience that pregnancy is sometimes the result of sexual assault. Justice Kennedy, in his majority opinion, was strikingly quixotic, writing, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”51 Justice Kennedy argued that women who undergo the abortion procedure prohibited by the Abortion Ban Act are of­ten traumatized and suffer extreme regret because of the universal bond of love that women share with their unborn child. Asked about this line of reasoning in a later interview, Justice Ginsburg described this characterization as patronizing: “The poor little woman, to regret the choice that she made,” Ginsburg said. Pointing squarely to the argument landscape that has shaped abortion jurisprudence, she reminded her listener, “Unfortunately there is something of that in Roe.”52 Justice Kennedy’s singular consideration of woman-­as-­mother also echoed the patriarchal voice of the law in Bradwell v. Illinois, Muller v. Oregon, Goesaert v. Cleary, and Hoyt v. Florida. The court has of­ten framed the role of motherhood as primary and exalted to restrict women’s rights and undermine their equal citizenship stature. Justice Ginsburg’s feminist dissent refused to allow the court’s universal musings about the nature of pregnancy and motherhood to go unchallenged. Taking on Kennedy’s sweeping rheto­ric directly, Ginsburg responded, “Notwithstanding the ‘bond of love’ women of­ten have with their children, not all pregnancies, this Court has recognized, are wanted, or even

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the product of consensual activity.”53 Citing Casey, she reminded the court that “on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners” and that “many of these incidents involve sexual assault.”54 Justice Ginsburg’s repeated references to unwanted and coerced pregnancies pushed back on the archetypal bond of love narrative that undergirds the universal characterization of woman-­as-­mother and required the court to acknowledge the complex reality of sexual assault and the undue burden that abortion restrictions place on many women. The concrete examples of women’s experiences that animated her Gonzales dissent provided nuance and force to Justice Ginsburg’s argument that the court’s decision to restrict abortion rights represented a very real threat to women’s lives. Kathryn Abrams argues that feminist jurisprudence must “emphasize contextualization (the need to adapt rules or theories to respond to variation in context), rather than bright-­line rules, and would describe women in a way that highlights their variety and the ambiguities of their condition, rather than advancing singular or simplified descriptions of them.”55 Ginsburg’s feminist dissent is an example of this contextualization in practice. Ferguson reminds us, “The judicial voice works to appropriate all other voices into its own monologue.”56 Whereas the generic scripts of the law work together to subsume the voices of marginalized citizens and to obliterate difference, complexity, and contingency, Justice Ginsburg’s feminist jurisprudence constructs a varied and nuanced vision of harm that legitimates excluded voices and holds much more promise for protecting the fundamental rights of women in their varying circumstances.

Shifting the Foundations: Constituting an Alternative Field of Argument for Reproductive Rights Justice Ginsburg’s feminist protest of the court’s decision in Gonzales v. Carhart challenged the generic requirements of judicial opinion to create a space in the language of abortion law to ask the woman question. Her judicial rheto­ric was transformative: it articulated an alternative equality rationale for reproductive rights and legitimated the voices of women and experiences of pregnancy traditionally excluded by the rheto­ric of abortion law. Although feminist jurisprudence represents a complex and contested theoretical terrain, Justice Ginsburg’s judicial voice demonstrates that core feminist ideals—a recognition of the institutional nature of patriarchy, a validation of women’s equal and full personhood, and respect for women’s varied lived experiences and positionalities—can clearly be transformative when written into the language of the law. Justice Ginsburg’s feminist rheto­ric constitutes a promising field of argument for protecting the fundamental

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rights of women and presents abortion rights advocates with a more effective framework for responding to the rhe­tori­cal strategies of a growing and influential antichoice movement. The contributions of Justice Ginsburg’s feminist voice in Gonzales v. Car­hart must be understood within the context of judicial dissent. A significant rhe­tori­cal function of a dissenting opinion is to influence future decisions. Chief Justice Charles Evans Hughes once wrote, “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Justice believes the court to have been betrayed.”57 The dissenting voice goes on record not only to proclaim that the majority got it wrong but also to offer an alternative field of argument for future cases. Catherine Langford reminds us that some dissenting opinions eventually do become court precedent. Examples include Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, which challenged the “separate but equal” doctrine, and Justice Harlan Stone’s dissent in Minersville School District v. Gobitis, which upheld the religious free­dom of children to choose not to salute the Ameri­can flag.58 In the final lines of her dissent, Ginsburg announced, “A decision so at odds with our jurisprudence should not have staying power.”59 Certainly, her dissent was crafted to constitute a set of rhe­tori­cal resources for future judges and present-­day activists. Sunstein pointed to this significance, arguing, “Ginsburg has now offered the most powerful understanding of the foundations of the right to choose— and it is important to remember that today’s dissenting opinion of­ten becomes tomorrow’s majority.”60 Justice Ginsburg’s choice to read her opinion aloud offered tomorrow’s majority an additional measure of certitude that was demonstrated by her act of feminist protest. In 2014, seven years after her Gonzales dissent, Justice Ginsburg dissented the court’s ruling in Burwell v. Hobby Lobby Stores, Inc. The court restricted women’s access to reproductive health care once again and ruled that closely held corporations can refuse for religious reasons to provide female employees with contraception. Ginsburg argued that the five male justices in the majority had a “blind spot” on women’s rights and pointed to the persuasive potential of her dissenting voice, explaining “I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”61 Reading a portion of her thirty-­five-­page Hobby Lobby dissent aloud from the bench, Justice Ginsburg’s feminist voice reiterated an equality rationale for women’s rights to reproductive control: “The ability of women to participate equally in the economic and social life of the nation,” she argued, “has been facilitated by their ability to control their reproductive lives.”62 In the wake of Hobby Lobby, Justice Ginsburg has become widely celebrated for

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her voice of judicial dissent. Her dissenting voice certainly appeals “to the intelligence of a future day”; the alternative fields of argument she forwards, on abortion rights and beyond, are central to a rhe­tori­cal legacy that has consistently challenged the discursive borders of the law.63 Justice Ginsburg’s feminist rheto­ric challenged the argument landscape around abortion rights and offered advocates, legislators, and judges an alternative rheto­ric that affirmed the equal citizenship and personhood of Ameri­can women. Legal opinions serve as models for practical argument: they instruct us how to argue and they help to constitute the boundaries of pub­lic deliberation.64 Advocates for reproductive rights have faced an incredible disadvantage trying to craft a defense of abortion rights within the rhe­tori­cal boundaries of Roe v. Wade. The voice of Roe, remember, followed the traditional scripts of the law, reaffirmed the controlling perspective of patriarchal bias, and undermined the personhood and positionalities of Ameri­can women. Significantly, Justice Ginsburg’s equality rationale charted a new course in Gonzales v. Carhart that amplified the fundamental nature of the right to abortion. Defenders of reproductive rights—from lawyers in the courtroom to citizen activists on the street—should take heed and insist on speaking in the language of women’s equality and full personhood. The growing wave of abortion restrictions that we have seen in recent years provides additional urgency to the necessity of shifting the arguments for reproductive rights. Indeed, more than one-­quarter of all abortion restrictions that have been passed after Roe v. Wade have passed in the last five years. Fifty abortion restrictions were enacted in 2016 alone.65 One effort, headed by Personhood USA, introduced ballot initiatives and petitions in all fifty states to legally define an unborn fetus “from the moment of fertilization and implantation into the womb” as a complete person with the right to life, liberty, and the pursuit of happiness.66 Glen A. Halva-­ Neubauer and Sara L. Zeigler argue: “Pro-­life forces are vigorously pursuing the agenda of fetal personhood at every level of government, advancing it in hospitable states and pushing Congress to erode away the abortion right. There is good evidence that their strategies are effective.”67 Linda Kerber describes the impact: “Forty years after Roe, states have enacted more than 200 statutes limiting abortions, such as Oklahoma’s mandatory pre-­abortion sonograms, and outright prohibition, such as North Dakota’s statute forbidding abortion when the fetal heartbeat can be detected.”68 In recent years, there has been an increased effort to shutter abortion clinics. Following the Republican wave in 2010, when conservatives took over the House of Representatives and won control of state legislatures across the country, Sarah Ferris reports that the number of abortion clin-

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ics shrunk by nearly one-­quarter; as I write, in 2017, nearly 90 percent of US counties are without an abortion provider.69 Advocates for reproductive rights have crafted their arguments in the language of privacy for too long. The antiabortion rheto­ric of fetal personhood must be met with an unwavering focus on the life, liberty, and full personhood of Ameri­can women. Importantly, Justice Ginsburg’s rheto­ric has lent voice and visibility to the material and profound stakes that women have in their right to reproductive control. Her feminist rheto­ric in Gonzales v. Carhart, Burwell v. Hobby Lobby, and her more recent concurring opinion in Whole Women’s Health v. Hellerstedt represents a significant rhe­tori­cal effort to fix the discursive boundaries of reproductive rights directly upon the varied lived experiences and full personhood of Ameri­can women.70 Justice Ginsburg’s Gonzales dissent demonstrates how asking the woman question continues to sit at the center of her legal reasoning and is absolutely central to her rhe­tori­cal legacy. Gonzales also illustrates how Ginsburg’s woman question has broadened over the years to push directly against essentialism and to give voice to a broader range of excluded perspectives. For Angela Harris, “to be fully subversive, the methodology of feminist legal theory should challenge not only law’s content but its tendency to privilege the abstract and unitary voice.”71 From the pages of her 1971 grandparent brief to her 2007 Gonzales dissent, Ruth Bader Ginsburg has consistently challenged the abstract and unitary voice of the law; this is a cornerstone of her feminist jurisprudence. The experiences of pregnancy that are given voice in Justice Ginsburg’s dissent push back against a long tradition of judicial rheto­ric that has exalted an abstract and unitary characterization of woman-­as-­mother and privileged a singular and universal view of Ameri­can women. For Abrams, “the goal is not to formulate a new image of women that better captures their essence, but to propagate images of women that are plural and acknowledge the ambiguities in their experience.”72 This is especially important in abortion jurisprudence, where the law’s singular characterization of all women has left many women without safe and affordable access to reproductive health care. Following Kimberlé Crenshaw and Patricia Hill Collins, many advocates of reproductive justice have critiqued the privilege operative in the rhe­tori­ cal framing of abortion rights. We need a different framework, these advocates contend, that is able to capture the multiple and intersecting structural constraints that shape women’s lived experiences of agency and reproductive control.73 For example, Kathleen de Onís argues that the assumed universality of women that underpins the rheto­ric of choice elides the very real obstacles that Spanish-­speaking migrant Latinas face, in­clud­ing economic burdens, documentation status, and lack of transportation.74 As de Onís

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and criti­cal legal scholars explain, women in the most precarious communities are of­ten unseen within the privileged borders of reproductive rights discourse and suffer the most severe consequences of reproductive injustice as a result. One of the most important contributions of Ruth Bader Ginsburg’s rhe­ tori­cal legacy, as plainly illustrated by her feminist protest of the Gonzales decision, is that her judicial voice has oriented the law toward the perspectives of citizens lacking agency, free­dom, and safety. In light of the wave of state legislation designed to close abortion clinics and limit access to reproductive health care, Justice Ginsburg was recently asked about the future of abortion rights. Echoing the themes she laid out in her Gonzales dissent, she reminded the pub­lic that “all the restrictions . . . operate against the woman who doesn’t have free­dom to move, to go where she is able to get safely what she wants.”75 Following the court’s decision in Gonzales, Ginsburg reiterated: “Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. . . . So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more of­ten.”76 One of the reasons that it hasn’t been said more of­ten is that the law’s discursive rhe­tori­cal traditions have actively dissuaded such material considerations. Attention to intersecting forms of domination and to the fact that women experience abortion restrictions in different ways depending on their social location are realities that have been excluded from the legal imagination surrounding reproductive rights for far too long. Justice Ginsburg’s commitment to challenging the rhe­tori­cal boundaries of the law in Gonzales represents a disruption of discursive privilege that is absolutely required if we are to bring the perspectives and positionalities of a wider range of women into the purview of Ameri­can law. Justice Ginsburg’s Gonzales dissent illustrates that to do law as a feminist—to search for bias, to insist on context, to include excluded positionalities, and to acknowledge difference—we must confront the generic commitments to neutrality, abstraction, and universality. Bartlett writes that: “Doing law as a feminist means looking beneath the surface of law to identify the gender implications of rules and the assumptions underlying them and insisting upon applications of rules that do not perpetuate women’s subordination.”77 It is clear, however, that the generic requirements of jurisprudential language actively dissuade such a project. Ferguson once observed that “judicial activists have not yet found ways to re-­shape the language of judicial opinion to their professed needs.”78 Indeed, the generic constraints of the judicial opinion work directly against the starting points of Justice Ginsburg’s feminist jurisprudence. While some legal scholars

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have called for a “new form of activist law talk,” Justice Ginsburg’s feminist judicial voice advises that an alternative rheto­ric of skepticism, context, and responsiveness may go a long way to open up the space in legal discourses to voice alternative perspectives and positionalities and to move us toward a more just jurisprudence.79 Justice Ginsburg’s Gonzales dissent challenged the patriarchal voice of the law—the voice that so easily wrote women’s voices, women’s personhood, and women’s varied experiences of pregnancy and abortion out of the Roe decision. Her feminist voice of linguistic dissent insisted on a set of feminist starting points: the recognition of the institutional nature of patriarchy, the validation of women’s equal citizenship stature, and respect for the varied voices and positionalities of Ameri­can women. Feminist jurisprudence transforms the language of the law; Justice Ginsburg’s rhe­tori­ cal legacy makes this point clear. Her feminist dissent in Gonzales v. Carhart authorized a new language of abortion rights and finally provided legal sanction to the most powerful warrants for reproductive rights: the varied voices of women and the material experiences of pregnancy that have long been excluded by the traditional voice of the law.

5

Ruth Bader Ginsburg’s Legacy of Dissent

Feminist Contributions and Democratic Promise

Ruth Bader Ginsburg’s remarkable legal legacy rests upon her consistent and direct challenge to the law’s traditional voice. Her alternative rhe­tori­ cal commitments have unsettled the generic conventions of legal discourse, transformed how the United States Constitution speaks to gender equality, and enlarged the Ameri­can promise of equal protection to all. In Reed v. Reed, Ruth Bader Ginsburg dissented from the generic conventions of legal discourse to legitimate an alternative rheto­ric of feminist jurisprudence. Her grandparent brief confronted the legal precedent of separate spheres and challenged the tyranny of gender stereotypes within Ameri­can law to make way for a more inclusive vision of equal protection. Ginsburg’s sustained critique of the gender binary in Ameri­can law has created inroads for a range of important legal arguments that stretch beyond the protection of women’s equal citizenship stature to support grounding for issues like paid family leave for all, marriage equality, and queer justice.1 In United States v. Virginia, Ginsburg’s alternative rheto­ric widened the boundaries of equal protection analy­sis and strengthened its promise, authorizing a heightened skeptical scrutiny for sex discrimination and a constitutional commitment to antisubordination. Since VMI, Ginsburg has consistently applied this expansive and corrective vision of equal protection to questions involving racial equality, demonstrating the important reach of her feminist jurisprudence. In Gonzales v. Carhart, Justice Ginsburg’s voice of feminist dissent expanded her vision of equal protection once more by articulating an equality rationale for reproductive rights. Her feminist jurisprudence in Gonzales legitimated voices of women and experiences of pregnancy tra-

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ditionally excluded by the discursive borders of abortion law. Justice Ginsburg continues to direct the attention of courts, legislators, and a broader pub­lic to the reality that women are situated differently—that some women are disproportionately harmed by abortion law in the United States. For feminist writer Julie Zellinger, “the term ‘intersectionality’ may have gained traction in the mainstream movement in recent years, but Ginsburg has arguably taken an intersectional approach to her work for decades. She has long viewed the fight for gender equality as not just the pursuit of women’s liberation, but liberation for all, a value she enacted on levels personal and broadly po­liti­cal.”2 Ruth Bader Ginsburg’s lifework has consistently fought for citizens excluded and silenced by the traditional voice of the law, and her commitment to linguistic dissent has enabled her to enlarge the Ameri­can promise of equal protection to all. Recall Richard Rorty’s important insight that “a talent for speaking differently, rather than for arguing well, is the chief instrument of social change.”3 The close study of Ruth Bader Ginsburg’s rheto­ric demonstrates how the justice’s talent for speaking differently has revolutionized Ameri­can law. Cynthia Fuchs Epstein, one of Ruth Bader Ginsburg’s close friends, recently remarked, “I think had she not had this persona as this very soft-­spoken, neat, and tidy person, with a conventional life, she would have been considered a flaming radical.”4 It is true that beneath her lace collars, small stature, and soft voice, Ruth Bader Ginsburg, with her pen, has performed radical rhe­tori­cal work, boldly challenging an entrenched genre of legal language to shift the discursive borders of women’s citizenship and promise a more demo­cratic law.

Lessons of a Feminist Judicial Voice The close textual study of Ruth Bader Ginsburg’s judicial voice helps to correct and clarify her feminist legacy and invites feminist scholars to consider the necessary role of linguistic dissent in theories of feminist jurisprudence. Ginsburg’s feminist contributions may be understood within a broad tradition of women’s rhetorics that have confronted the borders of the West­ern rhe­tori­cal tradition. It is important to remember that the generic conventions of legal discourse in the United States are intertwined with a West­ern rhe­tori­cal tradition that excluded women from its origins. Feminist rhe­tori­cal scholars Lisa Ede, Cheryl Glenn, and Andrea Luns­ ford write, “When Aristotle, Cicero, Quintilian, and Augustine considered the nature and province of rhetoric, they did not imagine that women—or those gendered feminine by their race, class, psychology, or other characteristics—might wish or be able to employ what Aristotle terms ‘the avail-

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able means of persuasion’ to communicate their ideas.”5 Rhetorical scholars have detailed a diverse and rich history of women’s rhetorics that have creatively and skillfully seized upon limited means of persuasion to assert a right to speak.6 The insights that feminist rhe­tori­cal scholars have brought to bear upon the West­ern rhe­tori­cal tradition teach us that women rhetors are of­ten re­ quired to interrupt rhe­tori­cal traditions and challenge discursive practices that render women voiceless and disqualify their legitimacy as participants in pub­lic discourse and po­liti­cal practice. Joy Ritchie and Kate Ronald explain, “The act of invention for women, then, begins in a different place from Aristotle’s conception of invention: women must first invent a way to speak in the context of being silenced and rendered invisible as persons.”7 Ruth Bader Ginsburg’s voice of feminist linguistic dissent may pro­ ductively be ­understood within this long tradition. Her voice echoes many of the topoi that women rhetors have employed to lay claim to personhood and assert agency. Ritchie and Ronald argue that these topoi—“claiming the right to speak; asserting new locations from which to write and speak; re-­representing and validating the diversity of women speakers/­writers; redefining what counts as evidence”—have functioned to legitimate voices, rights, positionalities, and personhoods excluded by the conventions of rhe­ tori­cal tradition.8 Of course it is important to point out that while Ruth Bader Ginsburg has pushed against the deep grain of legal discourse and consistently transgressed its borders, she does occupy one of the most pow­ erful positions in the nation and her privilege extends the available means of persuasion at her reach. Still, she has drawn from topoi common to the rich tradition of women’s rhetorics to rework the rhe­tori­cal boundaries of the law and assert a more inclusive constitutional community. Despite Justice Ginsburg’s record of linguistic dissent and the recent celebration of RBG as a feminist cultural icon, the promise of her jurisprudence has not been widely appreciated among legal feminists. As legal scholar Joan C. Williams tells us: “For someone who has been called the Thurgood Marshall of women, Justice Ginsburg has received remarkably little attention from legal feminists. Indeed, for decades she has been consigned to the dustbin of Formal Equality, as someone obsessed with treating men and women the same under the law, to women’s detriment, even when the two groups were clearly different.”9 The close analy­sis of Ruth Bader Ginsburg’s judicial voice challenges the criticism of Ginsburg as a champion of sex-­blind formal equality and sheds important light on the feminist promise of her rhe­tori­cal legacy. Neil Siegel and Reva Siegel help to explain the misunderstanding of Ginsburg’s legacy by placing the criticism of the justice in his­tori­cal context: “Much of this criticism occurred

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in an era of backlash, when an increasingly conservative Court was employing a formalist conception of classification to make equal protection law blind to problems of disparate impact and hostile to affirmative action, in sex as well as race cases.”10 In this era of conservative backlash, they explain, Ginsburg’s legacy was of­ten misconstrued as aligned with the formalist reasoning of the Burger court.11 While advocates of formal equality argue that equality is properly conceptualized as sex-­blind—that men and women should be treated exactly the same by the law—we have observed how Justice Ginsburg’s feminist voice explicitly disqualifies the legitimacy of a sex-­blind equality. Beginning with her grandparent brief, Ginsburg’s rhe­tori­cal legacy reveals that a commitment to context and a focused attention to the life of the law in practice is central to the ideal of substantive human equality that animates her legal career. Ginsburg’s jurisprudence reaches beyond the traditional scripts of neutrality that govern formalist reasoning to orient legal decision making toward the positionalities of women that are of­ten excluded from legal reasoning. The arguments Ginsburg forwarded in Reed v. Reed, United States v. Virginia, and Gonzales v. Carhart tell stories of women’s subordination that are made invisible by a patriarchal law. Indeed, it has been Ginsburg’s lifework to correct the blind spots of the law and to shed light on the lived experiences of women that have too of­ten been sequestered in the shadows of formalist reasoning. Recall her insistence in Reed that the court acknowledge the “deplorable shortage of child care facilities” that uniquely burdens women, or her demand in Gonzales that the court recognize that “on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners.”12 The close study of Ruth Bader Ginsburg’s judicial voice demonstrates how her rhe­tori­cal commitments to skepticism, context, and responsiveness insist not on a vision of formal quality but on a vision of substantive equality, one that is attentive to the history of women’s subordination and attuned to the varied voices and lived experiences of Ameri­can women. Justice Ginsburg’s attention to the lived experiences of Ameri­can women is one of the great feminist promises of her rhe­tori­cal legacy. From the pages of her 1971 Reed brief to her recent 2014 dissent in Hobby Lobby, Ginsburg has consistently challenged the male eye of the law to center the material realities of women’s experiences and to acknowledge important differences among women that have long been ignored by formalist scripts of legal discourse. We can look to an amicus brief recently filed to the United States Supreme Court by 113 female attorneys to glimpse the impact of Justice Ginsburg’s feminist jurisprudence. Filed in the case of Whole Women’s Health v. Hellerstedt, the brief opposed a Texas law designed to shut-

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ter abortion clinics. One court commentator described it as an “astonishing document,” and it certainly was.13 The brief described the 113 female attorneys’ personal experiences of abortion. It argued that access to safe and legal abortion allowed each woman to escape poor conditions—in­clud­ing poverty and abuse—to pursue educational opportunities, and to achieve successful careers in the law. The women’s stories, aimed at correcting the blind spot of Justice Anthony Kennedy, whose vote was certain to decide the case, are no doubt possible today—as legal argument to the United States Supreme Court—in part because of the effort of Justice Ginsburg to shift the boundaries of legal reasoning and legitimate women’s lived experiences as necessary and central to the interpretation of constitutional law. Justice Ginsburg’s attention to the lived experiences of girls and women was on full display in 2009 when RBG confronted her male colleagues during oral argument in the case of Safford Unified School District v. Redding.14 The case questioned whether the rights of a thirteen-­year-­old, Savana Redding, were violated when she was strip-­searched at school after officials suspected that she brought prescription-­strength ibuprofen to campus. The male justices, who joked with one another during oral argument and remi­ nisced about their locker room experiences as young boys, did not seem to grasp how the strip search may have humiliated a thirteen-­year-­old girl. Nina Totenberg reported, “Justice Ginsburg, the court’s only female justice bristled, her eyes flashing with anger. She noted that there’s no dispute that Savana was required to shake out her bra and the crotch of her panties. Ginsburg seemed to all but shout, boys may like to preen in the locker room, but girls, particularly teenage girls, do not.”15 Importantly, the scope of Justice Ginsburg’s search for excluded voices has grown more inclusive through­out her legal career; the woman question that guided her reasoning in Reed v. Reed has widened to become a broader search for citizens marginalized, left out, and silenced by the law’s traditional voice. Lucinda Finley anticipated that a move toward context would help to democratize the voices and positionalities represented in Ameri­can law: “By pulling the contextual threads of legal language,” she said, “we can work towards making the law more comfortable with diversity and complexity, less wedded to the felt need for universalizing, reductive principles.”16 Ginsburg’s commitment to context and lived experience has pushed against the male eye of the law and in the direction of diversity to orient her reasoning within the perspectives of citizens of­ten made invisible by the generic scripts of legal discourse. This is evident in her recent comments that have repeatedly drawn attention to the experiences of poor women and victims of abuse in light of increasing restrictions on abortion rights. Ginsburg’s attention to intersecting forms of domination, to the

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fact that women experience abortion restrictions in different ways depending on their social location, to the reality that some women are privileged while others continue to be oppressed by abortion law, and to the idea that privilege and subordination are interrelated is a significant contribution of her feminist jurisprudence. While the dominant voice of the law continues to eclipse the lived experiences and personhood of many Ameri­can citizens, Justice Ginsburg’s rhe­tori­cal legacy has contributed to “making the law more comfortable with diversity and complexity” and to widening the range of voices and positionalities visible in Ameri­can law.17 Importantly, Ruth Bader Ginsburg’s rhe­tori­cal legacy teaches us that a feminist reimagining of jurisprudence may productively begin at the foundational level of legal language. While many feminist legal scholars have called for more accessible approaches to feminist jurisprudence, the tools of rhe­tori­cal study and insights gleaned through feminist rhe­tori­cal criticism may contribute to forging a constructive road forward. Patricia Cain urges, “If the ultimate goal of feminist work in the academy is to make real change in women’s lives, then feminist legal theory needs to be useful to the practice of law in real cases.”18 The rhe­tori­cal study of Ruth Bader Ginsburg illuminates a language of feminist jurisprudence in practice. Her rhe­tori­cal legacy teaches that a commitment to speaking differently—against the generic scripts of legal discourse—may productively challenge the exclusionary dynamics of the law’s traditional voice and lead us toward a more just and inclusive law. As discussed in the introduction, theories of feminist jurisprudence have a troubled history of essentialism.19 Many feminist scholars have rejected “grand theories” and have moved away from identity-­based theorizing in the pursuit of an antiessentialist feminist jurisprudence. Mary Eaton instructs, “The better course of action may well be to make the break with identity and begin to forge a new politic and analytic framework premised upon and constructed out of more generalized notions of social power.”20 Justice Ginsburg’s feminist jurisprudence forges such a framework—one aimed at unsettling the discursive mechanics of power and privilege in the law. For criti­cal legal scholars like Angela Harris, close attention to the relationship between language and power is absolutely key and may help critics of mainstream jurisprudence move beyond deconstruction to the building and practice of a reconstructive jurisprudence.21 Similarly, Lucinda Finley argues that a linguistic framework of feminist jurisprudence holds important potential: “The more we can find openings to argue from the perspective of those of­ten overlooked by legal language, such as the people upon whom the legal power is being exercised, or those disempowered or silenced or rendered invisible by the traditional legal discourse, the more opportuni-

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ties to use the engine of fairness and equity to expand the comprehension of legal language.”22 Justice Ginsburg’s commitments to skepticism, context, and responsiveness create the rhe­tori­cal openings that Finley describes here and suggest that a framework of linguistic dissent might be a promising road forward for feminist scholars committed to theorizing an anti­ essentialist feminist jurisprudence in practice. Ruth Bader Ginsburg’s commitment to speaking against the generic scripts of legal discourse has wide-­ranging implications that extend beyond the protection of women’s equal citizenship. Indeed, her voice of linguistic dissent targets discursive patterns of the law that a wide variety of criti­cal legal scholars have found deeply problematic. Critical race scholars, for example, have long demonstrated how racism is deeply embedded in the language of the law. Mari J. Matsuda, Charles R. Lawrence III, Richard ­Delgado, and Kimberlé Crenshaw are among the many criti­cal scholars who assert that the conventional scripts of legal discourse—“dominant legal claims of neutrality, objectivity, color blindness and meritocracy”—bolster logics of whiteness and deny racial and ethnic minoritized citizens meaningful access to equality under the law.23 Critical race theory also challenges the discursive traditions of neutrality and ahistoricism, insisting on “a contextual/­ historical analy­sis of the law” and the “recognition of the experiential knowledge of people of color.”24 There is a common aim, then, that criti­cal race scholars share with many feminist legal scholars who seek to disrupt the discursive privilege that shapes the law and to expose the “largely invisible collection of patterns and habits that make up patriarchy and other forms of domination.”25 While there are important differences and distinct histories that shape the diverse projects of criti­cal legal theory, a commitment to linguistic dissent—to disrupting the discursive mechanics of privilege and exclusion that shape the law—bonds these efforts together toward the pursuit of rhe­tori­cal openings, a pursuit that seeks justice by bringing “attention to the experiences and perspectives of subordinated per­sons, communities, and peoples.”26 Speaking from the high court for nearly twenty-­ five years, Justice Ginsburg has made significant contributions to this aim. A brief examination of Justice Ginsburg’s dissenting opinion in Shelby County v. Holder underscores the demo­cratic promise of her linguistic dissent and demonstrates how her alternative rhe­tori­cal commitments speak beyond the narrow protection of women’s rights. The court’s decision in Shelby County v. Holder demolished the Voting Rights Act of 1965 and rejected the seriousness of voter discrimination in the United States. Perhaps it is not surprising that the rhe­tori­cal scripts of objectivity, abstraction, and closure were front and center in Chief Justice John Roberts’s majority opinion. While the chief justice trumpeted the values of neutrality and color

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blindness, Ruth Bader Ginsburg wrote a scathing dissent that continued her challenge to the generic scripts of the law and demonstrated the broad and important reach of her feminist jurisprudence.

Shelby County v. Holder (2013) The United States Supreme Court decision in Shelby County v. Holder gutted the Voting Rights Act of 1965. Congress enacted the Voting Rights Act after decades of racist maneuvering in the South. A century after the Civil War Amendments guaranteed the right of all citizens to vote free from race discrimination, courts were repeatedly striking down laws that were designed specifically to stop black citizens from voting. The offending jurisdictions were of­ten undeterred by the legal rulings against them and would promptly invent new laws and restrictions to suppress the black vote. As Justice Ginsburg described it, “early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.”27 The Voting Rights Act identified repeat offenders, nine states and additional localities, mostly in the South, and forced these jurisdictions to preclear any changes in their voting laws with the Department of Justice. The 2013 decision in Shelby County v. Holder revolved around Section 4 of the Voting Rights Act. Section 4 established a “coverage formula” that identified the states and local governments with the worst records of voter suppression. Section 5 subjected these covered jurisdictions to the preclearance requirement. Despite the fact that the Voting Rights Act was arguably the most successful civil rights legislation ever passed by the United States Congress, the Supreme Court ruled in 2013 that Section 4 was unconstitutional and could no longer be used to identify jurisdictions for preclearance requirements. The ruling effectively disabled the VRA. Justice John Roberts, who wrote the majority opinion for the court, defended the court’s decision by arguing that times have changed. “History did not end in 1965,” he declared. “The conditions that origi­nally justified these measures no longer characterize voting in the covered jurisdictions.”28 Roberts’s reasoning insisted that “40-­year-­old facts [have] no logical relation to the present day” and that the long history of racial discrimination in the United States was essentially irrelevant to the question before the United States Supreme Court.29 Reaction to the court’s decision in Shelby County v. Holder was swift. President Obama expressed deep disappointment with the Supreme Court’s decision and House Minority Leader Nancy Pelosi remarked, “Today, the Supreme Court took a step backward on voting rights, on civil rights, on

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liberty and justice for all.”30 Legendary civil rights activist John Lewis also criticized the decision, announcing: “Today, the Supreme Court stuck a dagger into the heart of the Voting Rights Act of 1965, one of the most effective pieces of legislation Congress has passed in the last 50 years.”31 Lewis directly targeted the standpoint of privilege that shaped the color-­ blind reasoning of Justice Roberts and the court majority: “These men never stood in unmovable lines. They were never denied the right to participate in the demo­cratic process. They were never beaten, jailed, run off their farms or fired from their jobs. No one they knew died simply trying to register to vote. They are not the victims of gerrymandering or contemporary unjust schemes to maneuver them out of their constitutional rights.”32 Critics of the court’s decision found an ally in Justice Ruth Bader Ginsburg. Her scathing dissent, read aloud from the bench, declared, “Hubris is a fit word for today’s demolition of the VRA.”33 Ginsburg spoke with her signature voice of rhe­tori­cal action to draw attention to the failures of the high court’s reasoning. She criticized the court majority for its refusal to take seriously the deep and persistent history of racial discrimination in the United States. She condemned the court majority for its failure to admit that context matters, that an unremitting racial bias continues to infect some states more than others. And finally, she accused the court majority for its disregard of the Constitution’s equality guarantee. Ginsburg’s Shelby County dissent is a fitting touchpoint to illustrate the demo­cratic promise of her rhe­tori­cal legacy. While some progressive scholars have advocated for a “new form of activist law talk,” Justice Ginsburg’s feminist jurisprudence advises that an alternative rheto­ric of skepticism, context, and responsiveness may go a long way toward opening up the space in legal discourses to voice alternative perspectives and positionalities.34 Examination of her Shelby County dissent certainly points in this direction. Just as she pushed for the visibility of sex discrimination in her Reed brief, VMI opinion, and Gonzales dissent, Justice Ginsburg’s voice of skepticism insisted upon the visibility of racial discrimination in her Shelby County dissent. Justice John Roberts’s reasoning extolled a privileged ethic of color blindness as he refused to acknowledge the contemporary realities of racial injustice. As Mari J. Matsuda tells us, “abstraction and detachment are ways out of the discomfort of direct confrontation with the ugliness of oppression.”35 This is certainly evident in Justice Roberts’s reasoning. He wrote, “The [Fifteenth] Amendment is not designed to punish for the past; its purpose is to ensure a better future.”36 For Roberts and the court majority, the coverage formula of the VRA unfairly targeted and humiliated south­ern jurisdictions for sins of a distant past—“decades-­old problems”—that were no longer relevant.37 Harvard Law professor Lani Guinier points to the de-

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tached nature of this reasoning: “Chief Justice Roberts cites seminal events of the civil rights movement only to wave farewell to a bygone era. The towns once made infamous by the ‘Freedom Summer’ of 1964 and ‘Bloody Sunday’ of 1965 are now governed by Af­ri­can Ameri­can mayors—this is emblematic of Roberts’s arguments that we have entered a new age and that an understanding of current conditions of voter discrimination can be considered divorced from the history that created them.”38 Justice Ginsburg criticized the majority for “disturbing lapses” and reminded her reader of the violent history of voter suppression in the United States of America.39 Her dissenting voice called the attention of the court back to Bloody Sunday, the event that spurred the federal government to pass the Voting Rights Act in the first place, and she insisted that the Ameri­can story of race discrimination continues right up through the present day. Ginsburg’s voice of skepticism confronted the court majority’s detached and abstract reasoning. She quoted Shakespeare, reminding the court “what’s past is prologue,” and invoked the words of Spanish-­Ameri­can poet George San­ta­yana, who warned that “those who cannot remember the past are condemned to repeat it.”40 Justice Roberts’s majority opinion dismissed the deep and persistent history of race discrimination in the United States as irrelevant to the question before the court. His standpoint of privilege, wholly disconnected from the realities of racial injustice today, argued that the strategies of voter suppression extant in 1965 had been eliminated, and therefore, he reasoned, the preclearance requirement had outlived its usefulness. Ginsburg responded, “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective.”41 Her dissent insisted that the struggle for fair elections in the United States is ongoing and that the VRA preclearance requirement has consistently thwarted efforts to suppress voting rights in minoritized communities. In a line from her dissent that garnered media circulation and pub­lic applause, Ginsburg exclaimed exasperatedly, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”42 In the face of a court majority that had closed its eyes to the reality of race discrimination in the United States, Justice Ginsburg insisted that racial hatred and discriminatory bias is still a part of the Ameri­can story and demanded that this deep tradition of injustice be acknowledged by the law. As we saw in her arguments for women’s rights and here in Shelby County, Ginsburg’s skeptical judicial stance calls for a jurisprudence that is fully informed by context, equipped to unearth pretext, and committed to illuminating the discriminatory bias and the traditions of injustice that are of­ten shielded by the rhe­tori­cal scripts of the law.

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The majority opinion in Shelby County invoked an unwavering allegiance to abstraction. Chief Justice John Roberts insisted that the general rule should govern all as he argued that the VRA coverage formula that singled out south­ern states and targeted particular jurisdictions was unconstitutional. The chief justice leaned on the Tenth Amendment and cited doctrines of state sovereignty to support his assertion that the VRA “sharply departs” from principles of states’ rights and equal treatment.43 Disparate treatment of states, Justice Roberts professed, is no longer justified by current conditions. In contrast, Justice Ginsburg’s voice of rhe­tori­cal action insisted on the careful consideration of context. She provided ugly specifics, pointing to Texas’s repeated attacks on early voting in a Latino district and Mississippi’s attempt to resurrect a Jim Crow–era voter registration system. Her dissent plainly documented that states have different histories and argued that the Fifteenth Amendment directs our attention to these differences and authorizes different legal rules. “As applied to Shelby County, the VRA’s preclearance requirement is hardly contestable,” Ginsburg wrote.44 Her dissent insisted that the same could be said about Ala­bama as a whole. Justice Ginsburg dug into the context of racial bias in Ala­bama to prove her point, reminding her readers, “Ala­bama is home to Selma, site of the ‘Bloody Sunday’ beatings of civil-­rights demonstrators that served as a catalyst for the VRA’s enactment.”45 Although some circumstances in Ala­bama have changed, Ginsburg urged that “serious concerns remain” and pointed to legal rulings and congressional reports to evidence Ala­bama’s “sorry history” of race discrimination.46 Quoting from a 1986 legal ruling against the state, Ginsburg writes: “From the late 1800s through to the present, [Ala­ bama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and po­liti­cal life of the state.”47 She also quoted an FBI investigation of state legislators who referred to black voters as “illiterates” and “Aborigines” while strategizing how to keep minority voters from the polls. Justice Ginsburg pressed the importance of this example upon the court: “These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.”48 Ginsburg’s dissent argued that the context of race discrimination in Shelby County and the egregious racial bias that continues to persist in Ala­bama “forcefully demonstrates” that the preclearance requirement for Ala­bama and its subdivisions is constitutional.49 Justice Ginsburg directed her reader’s attention to the world in which black citizens experience discriminatory bias. Her dissent rehearsed a litany of offenses that reminded her reader of the lived experiences faced by many black Ameri­cans—lived experiences that are of­ten silenced by the law’s traditional voice. Ginsburg once again interrupted the privileged eye of the

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law that dismissively cast aside the realities of racial injustice as irrelevant, “decades-­old problems.” In contrast, her dissenting voice demanded that the persistent and ugly history of race discrimination in the Unites States be written into the record of Shelby County v. Holder as evidence that the court’s ruling was woefully misinformed and dangerously misguided. Justice Ginsburg’s Shelby dissent confronted Justice John Roberts and the court majority for their failure to respect the Civil War Amendments and for their refusal to interpret the United States Constitution in its entirety. The majority opinion reflected a commitment to closure—to a conservative version of the United States Constitution frozen in 1789 and closed off from the Civil War Amendments and the equality guarantee that transformed the aims and structure of the Unites States Constitution. Ruth Bader Ginsburg’s rhe­tori­cal legacy demonstrates that she has repeatedly confronted the conservative scripts of fixity and closure to champion a progressive vision of the Constitution. She quoted Martin Luther King Jr. to support her aspirational vision: “The arc of the moral universe is long, but it bends toward justice,” she wrote.50 She also reminded her reader that King insisted that a “steadfast national commitment” was necessary to move the country toward racial justice, implying that the court majority had failed to recognize its role in this shared responsibility.51 Justice Ginsburg defended a broad interpretative vantage point that attacked Justice Roberts and the majority for their partial view of the United States Constitution. She argued: “It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments’ clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve.”52 Justice Roberts invoked the framers of the Constitution, which was ratified in 1789, and argued that it was clearly their intent to protect states’ rights and to guarantee the power of each state to regulate its own elections. His reasoning, however, and Justice Ginsburg made this point clear, failed to address how the framers of the Fifteenth Amendment transformed the Constitution to grant Congress broad authority to prohibit racial discrimination in voting. Revealing of Chief Justice John Roberts’s conservative lens of closure, the section of the majority opinion that defended his theory of state sovereignty did not mention the Fifteenth Amendment at all. For constitutional law scholar David Gans, the chief justice “flouted the text and history of the Fifteenth Amendment” and “studiously avoided the part of the Constitution most directly applicable.”53

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Indeed, Justice Ginsburg targeted the conservative majority’s partial view of the United States Constitution and argued that Roberts’s interpretation was all wrong. Yes, she said, the founders first told Congress it could “ ‘make no law’ over a certain domain” and this would appear to support a controlling principle of state sovereignty. However, she instructed, this is not the full story. She wrote: “In contrast, the Civil War Amendments used ‘language [that] authorized transformative new federal statutes to uproot all vestiges of unfree­dom and inequality’ and provided ‘sweeping enforcement powers  .  .  . to enact appropriate legislation targeting state abuses.’ ”54 A cornerstone of Justice Ginsburg’s rhe­tori­cal legacy, demonstrated through­ out this book and here in Shelby County, is that she roots progressive movement in the United States Constitution. Her insistence on the interpretation of the Constitution as a whole document situates the framers of the Civil War Amendments alongside the founding fathers and reasserts a commitment to antisubordination as a governing principle of the United States Constitution. Justice Ginsburg’s concern for the equal citizenship of Ameri­cans who have of­ten been marginalized and excluded is legitimated by her vision of progressive constitutionalism, which she firmly anchors to the aims and structure of the United States Constitution. Constitutional law scholar Akhil Reed Amar, who Justice Ginsburg quoted in her Shelby County dissent, champions such a vision of progressive constitutionalism. His argument— that there is a progressive undercurrent to the history and structure of the United States Constitution—is worth quoting in full: “The framers themselves were, after all, revolutionaries who risked their lives, their fortunes, and their sacred honor to replace an Old World monarchy with a New World Order unprecedented in its commitment to popu­lar self-­government. Later generations of reformers repeatedly amended the Constitution so as to extend its liberal foundations, dramatically expanding liberty and equality. The history of these liberal reform movements—19th-­century abolitionists, Progressive-­era crusaders for women’s suffrage, 1960s activists who democratized the document still further—is a history that liberals should celebrate, not sidestep.”55 Whereas conservatives of­ten criticize liberals for stray­ing from the text and history of the United States Constitution, Justice Ginsburg’s Shelby County dissent brilliantly flipped the script. She attacked the conservative majority for ignoring the Constitution and positioned her argument within the constitutional history and structure that Amar describes.56 Just as she did in VMI, in Shelby County Ginsburg forwarded a legitimizing script for making progressive claims on the United States Constitu-

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tion. The progressive story of constitutional history that Ginsburg outlines time and again upends the notion that the Constitution is a conservative document and provides a mobilizing vision of constitutional principles that speak to the concerns of citizens excluded by the conservative rhe­tori­cal scripts of the law. The authority assigned to Congress to protect the rights of all citizens to vote free from race discrimination and to “uproot all vestiges of unfree­dom and inequality,” Ginsburg tells us, is firmly anchored in the aims and structure of the United States Constitution. In a recent interview, Justice Ginsburg remarked that she wanted to be remembered as someone who helped “repair the tears in her society.”57 While the scripts of objectivity, abstraction, and closure encourage a jurisprudence that is blind to traditions of injustice, Justice Ginsburg’s commitment to skepticism, context, and responsiveness authorize a jurisprudence that is conscious of the “tears in society” and committed to doing the work of repair. Justice Ginsburg’s fiery Shelby County dissent was the spark that compelled the Ameri­can pub­lic to finally take notice of her important voice on the United States Supreme Court. Her pub­lic protest transformed her into a cultural icon; she was quickly crowned “The Notorious RBG,” and a broad pub­lic audience applauded Justice Ginsburg for the demo­cratic promise of her judicial voice. For Neil Siegel, “champions of Justice Ginsburg’s constitutional vision are justifiably inspired by its clear-­sighted series of insistences: that history did in fact happen and must be reckoned with in the present; that those who were long excluded from the constitutional community must now be included; that the ideal of human equality is substantive, not formal, and must be vindicated, not betrayed.”58 Ginsburg’s pub­ lic protest of Shelby County was celebrated by progressive citizens who felt their outrage over the court’s demolition of the Voting Rights Act mirrored in her dissenting voice. Just as she did in response to Gonzales v. Carhart, Ginsburg read her Shelby County dissent aloud from the bench. Irin Carmon and Shana Knizhnik compare the rhe­tori­cal effect of Ginsburg’s protest to “pulling the fire alarm,” calling it “a pub­lic shaming of the majority that you want the world to hear.”59 In response to the rulings handed down in the 2012–2013 term, Ginsburg read four dissents from the bench— “more than any other Justice in a single term in almost three decades.”60 The day before her Shelby County dissent, she dissented two of the conservative majority’s rulings—one that weakened affirmative action and another that made it more difficult for employees to sue for harassment in the workplace.61 In pub­lic interviews and speaking engagements, Justice Ginsburg has repeatedly criticized the conservative Roberts court for using its influence to thwart racial justice.62 Still, court watchers like Mark Joseph Stern point out

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that Justice Ginsburg’s admirable record on racial justice isn’t perfect.63 Justice Ginsburg joined the court majority in decisions that have eased constitutional restrictions on unreasonable roadside stops and unreliable eyewitness testimony, decisions that Stern contends are revealing of Ginsburg’s own blind spots as a white woman of considerable economic privilege.64 It was Justice Sonia Sotomayor who stood as the court’s lone dissenter in these cases to carefully document the reality of institutionalized racism within the criminal justice system. Appreciation for how Ruth Bader Ginsburg’s rhe­ tori­cal legacy has pushed against the discursive traditions of the law should not suggest that the justice does not have her own blind spots. She certainly does. The significance of Justice Sotomayor’s dissenting voice points to the importance of diversity on the high court, reminding us that all judges bring their lived experiences and blind spots to the bench. As Justice Ginsburg once remarked, “Our sys­tem of justice is surely richer for the diversity of background and experience of its judges. It was poorer when nearly all of its participants were cut from the same mold.”65 The significant promise of Ginsburg’s feminist voice is not that her in­di­vidual jurisprudence is perfect but that her rhe­tori­cal commitments to skepticism, context, and responsiveness have pushed directly against the boundaries of legal language to create more room for voices of outsider jurisprudence to shape Ameri­can law— voices that sometimes stand beside her and will also surely challenge her as they claim their place in shaping Ameri­can law and in broadening our constitutional community.

Lessons of a Democratic Judicial Voice Ruth Bader Ginsburg’s voice of dissent has challenged the traditional boundaries of legal language to make way for a more demo­cratic rule of law. We have observed how Ginsburg’s legal argument—from Reed v. Reed to Shelby County v. Holder—is consistently expressed through her voice of rhe­tori­cal action. She routinely calls on the high court to seek out bias, to reason from the standpoint of those excluded, to carefully consider context, and to respond to the shifting voices of a diverse citizenry. Her judicial voice of rhe­tori­cal action constitutes a vision of an engaged judiciary that is equipped to unearth pretext and committed to illuminating the traditions of injustice and discriminatory bias that are of­ten shielded by the generic scripts of the law. Ruth Bader Ginsburg’s rhe­tori­cal jurisprudence confronts the conservative conventions of the law’s traditional voice, which situates the judiciary above the body politic and denies the rhe­tori­cal character of the law.66 Driven by commitments to objectivity, abstraction, and closure, the fierce antirhe­tori­cal stance of legal discourse—as we have seen

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from Bradwell v. Illinois to Shelby County v. Holder—has repeatedly served to bolster an ideology of conservative constitutionalism, to protect the status quo, and to defend a legal vantage point of power and privilege. The mechanics of Ruth Bader Ginsburg’s judicial voice push in a different direction, to welcome previously marginalized voices, to legitimate alternative perspectives, and to affirm the rhe­tori­cal character of the law. In this way, Justice Ginsburg’s judicial voice can productively be understood as a voice of linguistic dissent. Across different forms of legal argument—­ appellate brief, majority opinion, and dissenting opinion—Ruth Bader Ginsburg has insisted upon speaking differently. She has pushed against the deep grain of legal discourse and consistently transgressed its borders. J. Louis Campbell describes the dissenting opinion as a form of “institutional disobedience,” in which “judges are protesting as authorities within institutional roles.”67 Ginsburg’s jurisprudence enacts a linguistic disobedience, not only in her dissenting opinions but also in each form of judicial argument examined here. The skepticism, pluralism, and demo­cratic standard voiced in United States v. Virginia, Ginsburg’s most well-­known majority opinion, reflect traits that are characteristic of dissenting opinions.68 Rhetorical scholar Robert Ivie recently outlined the distinctive contributions of dissent as a demo­cratic practice. He urged an understanding of dissent not as radical protest but as a nonconformist discourse of revision: “In this sense, dissent means advancing a significant difference of opinion or expressing a substantial disagreement without making a complete break with the prevailing viewpoint. It is a minority voice raised in a rhe­tori­cal act of limited nonconformity. The withholding of full assent disrupts routine and troubles convention. It is a transgression that aims to destabilize a prevailing mindset.”69 Democratic dissent demands clever maneuvering, double-­sided gestures able to cut through po­liti­cal orthodoxies while remaining connected to pub­lic culture and social convention. Ivie explains, “The double gesture of demo­cratic dissent, as an act of connected criticism, consists of one move to disrupt and another to affirm.”70 Justice Ginsburg’s sharp and strategic voice of linguistic dissent can be understood as enacting the kind of connected criticism that Ivie describes here. Her judicial voice disrupts the patriarchal eye of the law and challenges the prevailing mindset of conservative closure while always carefully grounding her legal argument in the aims and structure of the United States Constitution. For Ivie, “Dissent works toward the realignment of common sense, which is the modus operandi of democracy as a politics of contestation.”71 Ruth Bader Ginsburg’s legacy as a brilliant and skillful voice of dissent has certainly worked toward the realignment of common sense—toward a more expansive vision of equal protection and a demo­cratic reimagining of Ameri­can law.

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While the antirhe­tori­cal stance of legal discourse positions the law as autonomous—“apart from and above the trials and tribulations of the messy world of politics and debate”—Ruth Bader Ginsburg’s challenge to the traditional voice of the law is very much an effort to reframe the law as rhe­ tori­cal action.72 Justice Ginsburg’s voice of rhe­tori­cal action situates the law within the messy world: within traditions of injustice, within complexities of difference, context, and lived experience, within the web of citizen voices that press upon the court and demand to be heard. Gerald Wetlaufer argues that the rhe­tori­cal predispositions of the law are always pushing toward certainty, simplification, objectivity, and closure. He suggests, “Notwithstanding convenience, the search for truth seems to call us in the other direction, away from closure and out in the direction of complexity, contingency, uncertainty, and rhetoric.”73 Justice Ginsburg’s judicial voice has pushed in the direction of rheto­ric for nearly five decades. As we saw in her advocacy for women’s rights and here in Shelby County, Ginsburg demands an engaged judiciary that is responsive to the diverse voices of the Ameri­ can citizenry and transparent about the relationship between rhetoric, politics, and the law. Justice Ginsburg’s rheto­ric of responsiveness—her sustained practice of connecting legal argument to lived experience and her citation of citizen activists as authorities, from Elizabeth Cady Stanton and Sojourner Truth to Martin Luther King Jr.—activates a communicative pathway between the judiciary and the citizenry that affirms the rhe­ tori­cal character of the law.74 Assessing Ginsburg’s dissenting voice in Shelby County, Lani Guinier writes that “Ginsburg sees the Court as a participant in the long struggle for voting rights—with the potential to help or hinder that cause—not as an ‘objective’ evaluator standing above it.”75 Guinier applauds Justice Ginsburg for what she describes as Ginsburg’s “demosprudence,” a view of the law that honors the important role of the demos: the voices of ordinary citizens as valuable contributors to the meaning of the law. For Guinier, a demos­ prudential view challenges judicial supremacy and reflects a “willingness to ‘lift the curtains’ behind a decision and involve others in the process of lawmaking.”76 Justice Ginsburg’s rhe­tori­cal jurisprudence answers the call of a wide variety of scholars who have urged for more dialogic and demo­cratic models of judicial discourse.77 William Lewis though, pointing to the deep grain of the law’s generic constraints, questions whether the call for an alternative language of the law is achievable. “Linguistic practices run deep,” he asserts. “The possibilities for achieving . . . a more open, more humane, more communal, more rhe­tori­cal law are limited by the generic constraints of official judicial discourse and by the ideological constraints shaping the composition and interpretation of judicial opinions.”78 The generic com-

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mitments of judicial discourse, it is true, push against the legitimacy of a rhe­tori­cal jurisprudence; the chapters of this book detail how Justice Ginsburg’s voice of rhe­tori­cal action has wrestled with the scripts of objectivity, abstraction, and closure at every turn. A key contribution of Ginsburg’s rhe­tori­cal legacy is her consistent challenge to the deep grain of legal discourse. She has exhibited the courage and the skill to speak ­differently—­to make way for her feminist jurisprudence and a more honest accounting of the relationship between rheto­ric and the law. Rhetorical scholars Marouf Hasian Jr., Celeste Condit, and John Louis Lucaites explain that there is much to be gained by understanding the law as part of our rhe­tori­cal culture. Appreciating the law as rhe­tori­cal action, they explain, assigns the average citizen a measure of ownership over the law and lends citizens a participatory agency in the law that is unimagin­ able within the traditional paradigm.79 Justice Ginsburg’s reframing of the law as rhe­tori­cal action reflects a “willingness to lift the curtains” on legal reasoning and constitutes a demo­cratic reimagining of the judiciary and its relationship to the Ameri­can public.80 It is important to emphasize that the rhe­tori­cal genre of the law exists not simply in the texts of judicial opinion but also in the popu­lar imagination, in the psychology of the audience.81 Joshua Gunn’s insight is instructive here: “Rather than existing in texts, genres are concrete labels for shared patterns or social forms that inhere in the popu­lar imagination. These forms emerge in different ways and permutations and depend on the context in which they appear. Genres reside in the collective, mental space of the community or audience, and assume a content within a given context. . . . Hence, genres are expressions of social form that are more akin to myth and archetype than textual template. In other words, the generic field is a social field, the collective mental life of a given audience.”82 The voice of the law emerges from the needs and expectations of its citizens. Rather than simple linguistic preferences that flow from the pens of legal practitioners, the generic scripts of objectivity, abstraction, and closure are deeply rooted in our communal understandings of authority, hierarchy, and governance. The recurrent form of the judicial opinion, therefore, speaks directly to the needs and the ideological constraints of the Ameri­can citizenry. As Robert Ferguson puts it, there is a “psychological impulse at work in the occasional of judicial performance. . . . Hyperbole, certitude, assertion, simplification, and abstraction are the essential tools of the declarative tone as it reaches down from above and in a way that can be accepted from below.”83 Importantly, Justice Ginsburg’s rhe­tori­cal legacy urges a shift in our communal understanding of the law and constitutes a demo­cratic reimagining in what can be accepted from below. Her voice of rhe­tori­cal action, ex-

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pressed from the highest court in the land for more than twenty years, has no doubt contributed to loosening the grip of the traditional scripts of the law on the popu­lar imagination of the Ameri­can citizenry. The demo­cratic promise of Justice Ginsburg’s rhe­tori­cal legacy is apparent in how her judicial voice has recently connected with the Ameri­can citizenry. A sample of recent headlines include “8 Ways to Be as Awesome as Ruth Bader Ginsburg,” “Justice Ginsburg’s Ominous Warning about Creeping Corporate Power,” “Ruth Bader Ginsburg Tells Young Women: Fight for the Things You Care About,” “RBG Makes Yet Another Brilliant Point About the Constitutional Necessity of Marriage Equality,” and “What Is Ginsburg’s Message to Young Feminists?”84 These headlines endorse the communicative pathway between the high court and the Ameri­ can citizenry that Ginsburg’s jurisprudential vision champions. Following Justice Ginsburg’s dissent in Burwell v. Hobby Lobby, Nia-­Malika Henderson argued that Ginsburg’s legal argument became the “blueprint for how liberals talk about the Supreme Court decision.”85 While the opinions of the Supreme Court are not of­ten read by lay citizens, Ginsburg’s dissenting opinion was widely circulated: internet lists drew pub­lic attention to the “10 Blistering Highlights” and “8 Best Lines” of the opinion, a grassroots campaign dropped copies of her dissent through­out Hobby Lobby stores as a form of po­liti­cal protest, and a Twitter campaign invited people to ­#JoinTheDissent and add their voice to Justice Ginsburg’s defense of women’s reproductive rights.86 In 2015, the Human Rights Campaign used Justice Ginsburg’s words to urge citizens to add their names to the ­People’s Brief in support of the arguments for marriage equality in Obergefell v. Hodges.87 Notably, the amicus brief was submitted to the United States Supreme Court with the most signatories in Supreme Court history. While the monologic voice of the law bolsters judicial authority, Justice Ginsburg’s voice of rhe­tori­cal action reflects the limitations of the judicial branch and invites a more active role for citizens in Ameri­can constitutionalism. In their call for a rhe­tori­cal reframing of the law, Hasian, Condit, and Lucaites stress the demo­cratic significance of such a reframing. They write, “The responsibility of the full citizenry for the form and substance of the laws must be heightened and highlighted, so that eventually, judgments about our constitutions, even those made by ordinary individuals who are not trained to ‘think like lawyers,’ may be taken as competent contributions to the crafting of that law.”88 One of the most significant contributions of Ruth Bader Ginsburg’s legacy is that her judicial voice of rhe­tori­cal action has heightened and highlighted the responsibility of the Ameri­can citizenry. The range of political activism mobilized by RBG’s feminist rhetoric is certainly promising and suggests that many citizens are

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energized by her dissenting voice and eager to respond to her democratic reimagining of the law. This study of Ruth Bader Ginsburg urges a greater appreciation of her remarkable rhe­tori­cal legacy and positions RBG alongside the many great Ameri­can rhetors that have shaped our practices of democracy and urged us toward a more perfect union. For nearly five decades, Ruth Bader Ginsburg has dissented the generic landscape of the law to widen the boundaries of our legal imagination and enlarge the constitutional promise of equal protection. Still, while we appreciate her in­di­vidual voice of feminist dissent and while popu­lar discourse celebrates “The Notorious RBG” as a cultural hero, it is important to reflect upon a central lesson of her demo­cratic voice. Ruth Bader Ginsburg’s trailblazing rhe­tori­cal legacy reminds us all that we have work to do. Indeed, this is a key lesson of her feminist jurisprudence. There are voices left unheard, positionalities that remain erased, and citizens who are still excluded from the rights and responsibilities of equal citizenship stature.89 Ruth Bader Ginsburg’s fierce commitment to speaking differently challenges judicial supremacy and invites us all to claim a participatory agency in the law—to pay closer attention to the rulings of the United States Supreme Court, to engage court decisions with dialogue and debate, and to assert our voices in Ameri­can constitutionalism.

Notes

Introduction 1. Fred Strebeigh, Equal: Women Reshape Ameri­can Law (New York: W. W. Norton, 2009), 3. 2. Nina Totenberg, “Notes on a Life,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 4. 3. Peter J. Rubin, “Justice Ruth Bader Ginsburg: A Judges Perspective,” Ohio State Law Journal 70 (2009): 825. 4. Dahlia Lithwick, “Justice LOLZ Grumpycat Notorious R.B.G.: How a Gentle Supreme Court Justice Became a Badass Gangsta Internet Meme,” Slate, March 16, 2015, http://www.slate.com/articles/double_x/doublex/2015/03/notorious_r_b_g _history_the_origins_and_meaning_of_ruth_bader_ginsburg_s.html; “Rebecca Trais­ ter, “Notorious RBG: How Ruth Bader Ginsburg Became the Most Popu­lar Woman on the Internet,” New Republic, July 10, 2014, https://newrepublic.com/article/ 118641/ruth-­bader-­ginsburg-­memes-­how-­internet-­fell-­love-­her. 5. Richard Rorty, Contingency, Irony, and Solidarity (New York: Cambridge University Press, 1989), 7. 6. James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990), xiv. 7. James Boyd White, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” University of Chicago Law Review 52 (1985): 684–702. 8. Ibid., 697. 9. Lucinda Finley, “Breaking Women’s Silence in the Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 905. 10. For discussions of rhe­tori­cal genre in the field of rhe­tori­cal studies, see Barry Brummett, “Premillennial Apocalyptic as a Rhetorical Genre,” Central States

124 / Notes Speech Journal 35 (1984): 84–93; Karlyn Kohrs Campbell and Kathleen Hall Jamieson, “Form and Genre in Rhetorical Criticism: An Introduction,” in Campbell and Jamieson, Form and Genre: Shaping Rhetorical Action (Annandale, VA: Speech Communication Association, 1978), 9–32; Carolyn R. Miller, “Genre as Social Action,” Quarterly Journal of Speech 70 (1984): 151–67; B. L. Ware and Wil A. Linkugel, “They Spoke in Defense of Themselves: On the Generic Criticism of Apologia,” Quarterly Journal of Speech 59 (1973): 273–83; Matthew Gerber, “On the Consideration of ‘Public Diplomacy’ as Rhetorical Genre,” Contemporary Argumentation & Debate 29 (2008): 118–33. 11. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1555. 12. Robert A. Ferguson, “Rhetorics of the Judicial Opinion: The Judicial Opinion as Literary Genre,” Yale Journal of Law and Humanities 2 (1990): 201–19. 13. Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse,” Dickinson Law Review 101 (1996): 4–5. 14. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” 1552. 15. Miller, “Genre as Social Action,” 151–67. 16. Campbell and Jamieson, Form and Genre, 24. 17. Ferguson, “Rhetorics of the Judicial Opinion,” 207. 18. Zillah Eisenstein, The Female Body and the Law (Berke­ley: University of Cali­fornia Press, 1988), 54. 19. Lucinda Finley, “Breaking Women’s Silence in the Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 905. 20. Myra Bradwell v. State of Illinois, 83 U.S. 130 (1873). 21. The Fourteenth Amendment includes three clauses that have been the focus of key battles in most important constitutional litigation of the twentieth century, in­clud­ing women’s rights litigation. Referred to as (1) the Privileges and Immunities Clause, (2) the Due Process Clause, and (3) the Equal Protection Clause, the clauses read: 1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 2. nor shall any state deprive any person of life, liberty, or property without due process of law; 3. nor deny to any person within its jurisdiction the equal protection of the laws. 22. Opinion for the majority of the Illinois Supreme Court, quoted in Bradwell v. Illinois, 132. 23. Gwen Hoerr Jordan, “ ‘Horror of a Woman’: Myra Bradwell, the Fourteenth Amendment, and the Gendered Origins of Sociological Jurisprudence,” Akron Law Review 42 (2009): 1201. 24. Slaughterhouse Cases, 83 U.S. 36 (1872). 25. Bradwell v. Illinois, 141. 26. Ibid., 141.

Notes / 125 27. Ferguson, “Rhetorics of the Judicial Opinion,” 207. 28. Eisenstein, The Female Body and the Law, 50. 29. Bradwell v. Illinois, 142. 30. Finley, “Breaking Women’s Silence in the Law,” 905. 31. Bradwell v. Illinois, 141. 32. Ibid., 141–42. 33. Katharine T. Bartlett, “Feminist Legal Methods,” Harvard Law Review 100 (1990): 834. 34. Kimberlé Williams Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Stanford Law Review 43 (1991): 1241–99. 35. Jordan, “Horror of a Woman,” 1242. 36. Ibid., 1221. 37. Rubinson, “The Polyphonic Courtroom,” 10. 38. Bradwell v. Illinois, 141. 39. Opinion for the majority of the Illinois Supreme Court, quoted in Bradwell v. Illinois, 132. 40. Ibid. 41. Quoted in Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage (New York: Fowler & Wells, 1882), 606. 42. Bradwell v. Illinois, 142. 43. Ibid. 44. Angela G. Ray and Cindy Koenig Richards, “Inventing Citizens, Imagining Gender Justice: The Suffrage Rhetoric of Virginia and Francis Minor,” Quarterly Journal of Speech 93 (2007): 391. 45. Wetlaufer, “Rhetoric and Its Denial,” 1548–49. 46. Bartlett argues that the woman question may be productively converted into the question of the excluded and may be used “as a model for deeper inquiry into the consequences of overlapping forms of oppression.” She explains, “This inquiry would require a general and far-­reaching set of questions that go beyond issues of gender bias to seek out other bases of exclusion: what assumptions are made by law (or practice or analy­sis) about those whom it affects? Whose point of view do these assumptions reflect? Whose interests are invisible or peripheral? How might excluded viewpoints be identified and taken into account?”; “Feminist Legal Methods,” 848. 47. Ibid., 843. 48. Ibid., 838. 49. Maria Drakopoulou, “Revisiting Feminist Jurisprudence: A Rehabilitation,” Feminists@Law 3 (2013): 1–22. 50. Martha Fineman, “Feminist Theory and Law,” Harvard Journal of Law & Public Policy 18 (1995): n51. 51. Catharine MacKinnon, panel discussion, “Developing Feminist Jurisprudence,” at the 14th National Conference on Women and the Law, Wash­ing­ton, DC, April 9, 1983.

126 / Notes 52. For early critiques of essentialism in feminist legal theory, see Sarah Hoag­ land, Lesbian Ethics: Toward a New Value (Palo Alto, CA: Institute of Lesbian Studies, 1988); Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Women’s Rights Law Reporter 11 (1989): 7–11; Susan Wendell, “Toward a Feminist Theory of Disability,” in Gender Basics: Feminist Perspectives on Women and Men, ed. Anne Minas (Belmont, CA: Wadsworth, 1993), 58–63. 53. Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review 42 (1990): 585. 54. Nancy E. Dowd and Michelle S. Jacobs, Feminist Legal Theory: An Anti-­ Essentialist Reader (New York: NYU Press, 2003), 10–13. 55. Matsuda, “When the First Quail Calls,” 7–11; See also Carl Gutiérrez-­Jones, Rethinking the Borderlands: Between Chicano Culture and Legal Discourse (Berke­ley: University of California Press, 1995). 56. The term “outsider jurisprudence” is credited to Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” Michigan Law Review 87 (1989): 2320–81. Matsuda says, “There is an outsider’s jurisprudence growing and thriving alongside mainstream jurisprudence in Ameri­can law schools” (2323). 57. Dowd and Jacobs, Feminist Legal Theory, 12. 58. Patricia Cain, “The Future of Feminist Legal Theory,” in Feminist Legal Theory: An Anti-­Essentialist Reader, ed. Nancy E. Dowd and Michelle S. Jacobs (New York: NYU Press, 2003), 15. 59. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” 1573. 60. Amy Leigh Campbell, “Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project,” Texas Journal of Women & the Law 11 (2002): 172; Eleanor H. Ayer, Ruth Bader Ginsburg: Fire and Steel on The Supreme Court (New York: Dillon, 1994), 34. 61. Jeffrey Rosen, “Ruth Bader Ginsburg Is an Ameri­can Hero,” The New Repub­ lic, Sep­tem­ber 28, 2014, https://newrepublic.com/article/119578/ruth-­bader-­ginsburg -­interview-­retirement-­feminists-­jazzercise. 62. Interview with Katie Couric, “Ruth Bader Ginsburg on Hobby Lobby, Roe v. Wade, Retirement and Notorious R.B.G.,” Yahoo News, July 31, 2014, https:// www.yahoo.com/news/video/exclusive-­ruth-­bader-­ginsburg-­hobby-­091819044.html ?ref=gs. 63. Dahlia Lithwick, “Fire and Ice: Ruth Bader Ginsburg, the Least Likely Firebrand,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 232.

Chapter 1 1. Brief of Sally Reed at 6, Reed v. Reed, 404 U.S. 71 (1971). 2. Under the Due Process Clause, opponents of protective labor legislation argued that the doctrine of “free­dom of contract” guaranteed the right of employers and workers to negotiate their wages, hours, and working conditions without legislative interference. In 1895, Justice Benjamin Magruder of the Illinois Supreme

Notes / 127 Court articulated a constitutional defense of the doctrine of free­dom of contract when he overturned the state of Illinois’s eight-­hour law and declared that laws regulating labor were unconstitutional. 3. For a complete discussion of the Darwinian framework at work in the opinion, see Katie L. Gibson, “Judicial Rhetoric and Women’s ‘Place’: The United States Supreme Court’s Defense of Separate Spheres,” West­ern Journal of Communication 71 (2007): 159–75. 4. Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: Harper Collins, 2015), 11. 5. Carmon and Knizhnik, Notorious RBG, 33–37. 6. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1597. 7. The circuit court judge found Muller guilty of a misdemeanor and fined him ten dollars. Upon appeal, the Oregon Supreme Court affirmed the lower court ruling. State supreme courts had decided seven cases involving maximum-­hour laws for women by the time Muller v. Oregon reached the Supreme Court in 1908. The courts upheld four of the laws and overturned three. The decisions offered no pattern of precedent to suggest how the Supreme Court would decide Muller v. Oregon. For more his­tori­cal and legal background on Muller v. Oregon, see Judith A. Baer, The Chains of Protection: The Judicial Response to Women’s Labor Legislation (Westport, CT: Greenwood Press, 1978). 8. Nancy Woloch, Muller v. Oregon: A Brief History with Documents (Boston: St. Martin’s, 1996), 4. 9. Lochner v. New York, 198 U.S. 45 (1905). 10. The court ruled that the state of New York failed to demonstrate that the restriction was a rational use of the state’s police powers. The “rational reason” test, the standard method at the time for determining whether Fourteenth Amendment protections were inviolate, required the state to demonstrate that the maximum-­ hours legislation was a lawful exercise of the state’s police power to protect the health, safety, morals, and general welfare of its people. This was the only rational reason permitted for restricting a privilege or immunity normally protected under the Fourteenth Amendment. Woloch comments, “The Lochner case shows how difficult it was to stretch the police power to cover men,” A Brief History, 19. 11. Woloch, A Brief History, 35. 12. Muller v. Oregon, 208 U.S. 412 (1908). 13. Although he did not explicitly mention a theory of evolution or credit his arguments to a Darwinian philosophy, Justice Brewer anchored his opinion to Darwinian principles that were at the height of popu­larity in 1908. Although Darwinism had taken several forms in the United States, it is a popu­larized Darwinism— what some might term vulgar Darwinism—that shaped Justice Brewer’s opinion to present the logic of separate spheres as scientific fact. Historian Richard Hofstadter explains, “In some respects the United States during the last three decades of the nineteenth century and the beginning of the twentieth century was the Darwinian country. England gave Darwin to the world, but the United States gave Dar-

128 / Notes winism an unusually quick and sympathetic reception.” Richard Hofstadter, Social Darwinism in Ameri­can Thought, 2nd ed. (New York: George Braziller, 1994), 5. 14. Marouf Hasian Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate but Equal’ Doctrine,” Quarterly Journal of Speech 82 (1996): 328. 15. Muller v. Oregon, 327. 16. Ibid. 17. Ibid. 18. Ibid. 19. Ibid. 20. For more on the posture of inevitability as central to the judicial opinion genre, see Robert A. Ferguson, “Rhetorics of the Judicial Opinion: The Judicial Opinion as Literary Genre,” Yale Journal of Law and Humanities 2 (1990): 201–19. 21. Muller v. Oregon, 325. 22. Ibid., 326. 23. Ibid., 325, 326. 24. Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse,” Dickinson Law Review 101 (1996): 12. 25. Muller v. Oregon, 327. 26. Ibid., 325. 27. Ibid., 327. 28. Ibid. 29. Lara Vapnek, “The Politics of Women’s Work in the United States, 1865– 1909” (PhD diss., Columbia University, 2000), 347. 30. Evelyn Nakano Glenn, “Racial Ethnic Women’s Labor: The Intersection of Race, Gender, and Class Oppression,” Review of Radical Economics 17 (1985): 96. 31. Glenn, “Racial Ethnic Women’s Labor,” 90. 32. Angela Davis, Women, Race, and Class (New York: Vintage Books, 1981), 121. 33. Rosalind Rosenburg, “In Search of Woman’s Nature: 1850–1920,” Feminist Studies 3 (1975): 142. 34. Muller v Oregon, 327. 35. Jean Elshtain, “The New Feminist Scholarship,” Salmagundi (1986): 14. 36. Muller v. Oregon, 327. 37. Baer, Chains of Protection, 67. 38. Radice v. New York, 264 U.S. 292 (1924), 295. 39. Muller v. Oregon, 325. 40. The General Federation of Women’s Clubs (GFWC, founded in 1890) and the National Women’s Trade Union League (NWTUL, founded in 1903) were two such groups that endorsed protective legislation. 41. Nancy S. Erickson, “His­tori­cal Background of ‘Protective’ Labor Legislation: Muller v. Oregon.” In Women and the Law: The Social His­tori­cal Perspective, vol. 2, ed. D. Kelly Weisberg (Cambridge, MA: Schenkman, 1982), 175. 42. Amy Holtman French, “Mixing It Up: Michigan Barmaids Fight for Civil Rights,” Michigan His­tori­cal Review 40 (2014): 32.

Notes / 129 43. Margaret Goesaert was the widow of a bar owner. She initiated the case because she could not afford to pay the salary of a male bartender. Goesaert tended the bar with her daughter when her husband was alive and claimed that the law prohibiting her from bartending would force her to shut down her family business. 44. French, “Mixing It Up,” 28. 45. Ibid., 29–30. 46. “Café Staffed by Barmaids Picketed by Union that Won’t Admit Them,” New York Times, April 4, 1950, 1. 47. Christie Sismondo, America Walks into a Bar: A Spirited History of Taverns and Saloons (New York: Oxford University Press, 2014), 243. 48. “Lady Bartenders? Not on your Martini!” New York Times, May 28, 1950, 19. 49. French, “Mixing it Up,” 36. 50. Goesaert v. Cleary, 335 U.S. 464 (1948), 465. 51. Ibid., 466. 52. Ibid., 466–67. 53. See, for example, Brief for Ameri­can Civil Liberties Union as Amicus Curiae, Supporting Appellants at 13, Craig v. Boren, 429 U.S. 190 (1976), 1976 WL 181333 (1976). 54. Goesaert v. Cleary, 466. 55. Ibid., 467. 56. French, “Mixing it Up,” 37. 57. Goesaert v. Cleary, 465. 58. Judith M. Bennett, Ale, Beer, and Brewsters in England: Women’s Work in a Changing World (New York: Oxford University Press, 1999), 122. 59. Sismondo, America Walks into a Bar, 243. 60. Goesaert v. Cleary, 465. 61. Ibid., 466. 62. Goesaert v. Cleary, 465–66. 63. Ibid. 64. Scott Dodson, “Ginsburg, Optimism, and Conflict Management,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 235. 65. Carmon and Knizhnik, Notorious RBG, 38–39. 66. Deborah L. Forman, “What Difference Does it Make? Gender and Jury Selection.” UCLA Women’s Law Journal 2 (1992): 38. 67. Justin Driver, “The Constitutional Conservatism of the Warren Court,” California Law Review 100 (2012): 1117. 68. Lucy Fowler, “Gender and Jury Deliberations: The Contributions of Social Science,” William & Mary Journal of Women and the Law 12 (2005): 1–48. 69. Ruth Bader Ginsburg, with Mary Harnett and Wendy W. Williams, My Own Words: Ruth Bader Ginsburg (New York: Simon and Schuster, 2016), 158. 70. Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998), 128. 71. Hoyt v. Florida, 368 U.S. 57 (1961), 61. 72. Muller v. Oregon, 325.

130 / Notes 73. Joanna L. Grossman, “Women’s Jury Service: Right of Citizenship or Privilege of Difference,” Stanford Law Review 46 (1994): 1131. 74. Hoyt v. Florida, 61. 75. Driver, “Constitutional Conservatism,” 1117. 76. Ibid., 1162. 77. Jerome Frank, Court’s on Trial: Myth and Reality in Ameri­can Justice (Prince­ ton, NJ: Princeton University Press, 1949), 414. 78. Cathy N. Davison and Jessamyn Hatcher, eds., No More Separate Spheres! (Durham, NC: Duke University Press, 2002), 11. 79. Glenn, “Racial Ethnic Women’s Labor,” 102. 80. See, for example, Patricia Hill Collins, “Af­ri­can-­Ameri­can Women and Economic Justice: A Preliminary Analysis of Wealth, Family, and Af­ri­can-Ameri­can Social Class,” University of Cincinnati Law Review 65 (1997): 825–52; Nancy Dowd, “In Defense of Single-­Parent Families,” (New York: NYU Press, 1995); Mary Eaton, “At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprudence,” in Feminist Legal Theory: An Anti-­Essentialist Reader, ed. Nancy E. Dowd and Michelle Jacobs (New York: NYU Press, 2003), 49–55; Darren Lenard Hutchinson, “Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-­Racist Politics,” Buffalo Law Review 47 (1999): 1–116; Michelle S. Jacobs, “Prostitutes, Drug Users, and Thieves: the Invisible Women in the Campaign to End Violence Against Women,” Temple Po­liti­cal & Civil Rights Law Review 8 (1999): 459–76; Marc Trabsky, “Deconstructing the Heteronormative Worker or Queering a Jurisprudence of Labour: A Case Study of Family and Personal/­ Carer’s Leave in Australian Labour Law,” Law in Context 23 (2005): 202–22. 81. Erickson, “His­tori­cal Background,” 156. 82. Carrie Crenshaw, “The Normality of Man and Female Otherness: (Re)producing Patriarchal Lines of Argument in the Law and the News,” Argumentation and Advocacy 32 (1996): 170–84. 83. James B. White, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” University of Chicago Law Review 52 (1985): 690. 84. Mari J. Matsuda, “Beside My Sister, Facing the Enemy: Legal Theory out of Coalition,” Stanford Law Review 43 (1991): 1189. 85. Curtis Berger, Land Ownership and Use: Cases, Statutes, and Other Materials (Boston: Little, Brown, 1968), 139. Quoted in Ruth Bader Ginsburg and Barbara Flagg, “Some Reflections of the Feminist Legal Thought of the 1970s,” University of Chicago Legal Forum 1 (1989): 9. 86. Linda Kerber, “Before Frontiero There Was Reed,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 34.

Chapter 2 1. Emily Martin, “Reed v. Reed at 40: Equal Protection and Women’s Rights,” Journal of Gender, Social Policy & the Law 20 (2012): 319. 2. Transcript of Interview of U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, April 10, 2009, Ohio State Law Journal 805, no. 70 (2009): 812.

Notes / 131 3. Ruth Bader Ginsburg, with Mary Harnett and Wendy W. Williams, My Own Words: Ruth Bader Ginsburg (New York: Simon and Schuster, 2016), 116. 4. Linda K. Kerber, “Before Frontiero There Was Reed,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 32. 5. Idaho Code Ann. §15–314 (1948). 6. Ruth Bader Ginsburg, “Women as Full Members of the Club: An Evolving Ameri­can Ideal,” Human Rights 6 (1975): 267. 7. Fred Strebeigh, Equal: Women Reshape Ameri­can Law (New York: W. W. Norton, 2009), 37. 8. Martin, “Reed at 40,” 317. 9. Amy Leigh Campbell, “Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project,” Texas Journal of Women & the Law 11 (2002): 172; Eleanor H. Ayer, Ruth Bader Ginsburg: Fire and Steel on the Supreme Court (New York: Dillon, 1994), 34. 10. Strebeigh, Equal, 3. 11. Kathleen M. Sullivan, “Constitutionalizing Women’s Equality,” California Law Review 90 (2002): 763. 12. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1596. 13. Bartlett, “Feminist Legal Methods,” 836. 14. Bartlett, “Feminist Legal Methods,” 845. 15. Judith A. Baer, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton: Princeton University Press, 1999), 122. 16. Hilaire Barnett, Sourcebook on Feminist Jurisprudence (Lon­don: Cavendish Publishing, 1997), 77. 17. Brief of Sally Reed at 6, Reed v. Reed, 404 U.S. 71 (1971). 18. Ibid., 12–13. 19. Pauli Murray and Mary O. Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII,” George Wash­ing­ton Law Review 34 (1965): 232–56. 20. The analogy was designed to win women the suspect classification that was afforded to Af­ri­can Ameri­cans. Ginsburg argues: “Both slaves and wives were once subject to the all-­encompassing paternalistic power of the male head of the house. Arguments justifying different treatment for the sexes on the grounds of female inferiority, need for male protection, and happiness in their assigned roles bear a striking resemblance to the half-­truths surrounding the myth of the ‘happy slave.’ ” She also quotes Gunnar Myrdal, who wrote that “when a legal status had to be found for the imported Negro servants in the seventeenth century, the nearest and most natural analogy was the status of women and children,” Brief of Sally Reed, 16, 29. 21. Brief of Sally Reed, 19. 22. Quoted in Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: HarperCollins, 2015), 57. 23. Ginsburg quoted Alexis de Tocqueville’s observations on life in the young United States to illustrate the long and persistent history of separate spheres. De Tocqueville wrote: “In no country has such constant care been taken as in America to trace two clearly distinct lines of action for the two sexes, and to make them keep

132 / Notes pace one with the other, but in two pathways which are always different. Ameri­can women never manage the outward concerns of the family, or conduct a business, or take a part in po­liti­cal life,” 26. 24. Brief of Sally Reed, 25–26. 25. Ibid. 26. Ibid., 27. 27. Ibid., 21. 28. Ibid., 6, 25. 29. Bartlett, “Feminist Legal Methods,” 843. 30. Brief of Sally Reed, 34. 31. In rebuttal to the notion that women were sec­ondary workers, Ginsburg wrote, “But in fact, almost 60% of all employed women work in order to provide primary support of themselves or others or to supplement the incomes of husbands who earn under $5,915 a year,” 39. 32. Brief of Sally Reed, 40. 33. Ibid., 37. 34. Ibid., 62. 35. Ibid., 61. 36. Ibid., 61–62. 37. Ibid. 38. Ibid., 7. 39. Campbell, “Raising the Bar,” 173. 40. Brief of Sally Reed, 50. 41. Ibid., 46. 42. Ibid. 43. Ibid., 51. I have indicated Ginsburg’s emphasis with italics. 44. Ibid., 51. 45. Ibid., 51. 46. DeKosenko v. Brandt, 313 N.Y.S. 2d 827, 830 (Sup. Ct. 1970). 47. The phrase “woman’s place” is used through­out the Reed brief. She quotes Elizabeth Janeway: “ ‘Man’s world’ and ‘women’s place’ have confronted each other since Scylla first faced Charybdis,” n.20. Ginsburg’s repeated reference to woman’s place urged the court to acknowledge the obvious imbalance of power and privilege awarded to men and women by the logics of separate spheres. 48. Frontiero v. Richardson 411 U.S. 677 (1973). 49. Frontiero v. Richardson Oral Argument, at 27:33. 50. Brief of Sally Reed, 17. 51. Ibid., n.22. 52. Ibid., 27. 53. Ibid., 29. 54. Ibid., 29. 55. Ibid., 30. 56. Ibid., 30. 57. Ibid., 31.

Notes / 133 58. Ibid., 30. 59. Lucinda Finley, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 177. 60. Brief of Sally Reed, 31. 61. Finley, “Breaking Women’s Silence,” 183. 62. Ibid., 83–184. 63. Campbell, “Raising the Bar,” 172. 64. Ibid. 65. Christine Littleton, “In Search of a Feminist Jurisprudence,” Harvard Women’s Law Journal 10 (1987): 4. 66. Brief of Sally Reed, 37. 67. Ibid., 40. 68. Martha Fineman, Transcending the Boundaries of the Law: Generations of Femi­nism and Legal Theory (Hoboken: Taylor & Francis, 2010), 1. 69. Brief of Sally Reed, 6. 70. Ibid., 15. 71. Ibid., 63. 72. Ibid., 63–64. 73. Ibid., 65. 74. Ibid., 10. 75. Ibid., 13, 10, 49, 65, 6. 76. Ibid., 21. 77. Ibid., 24. 78. Seidenberg v. McSorleys’ Old Ale House (1970): 49. 79. Ibid., 45. 80. Ibid. 81. Ibid., 47. 82. Ibid., 49. 83. Ibid., n.14. 84. Ibid., n.16. 85. Goesaert v. Cleary, 335 U.S. 464 (1948), 466. 86. Brief of Sally Reed, 47. 87. Ibid., 10. 88. Ibid., 55. 89. Ibid., n.52. 90. Ibid., 55. 91. Ibid., 46, 46, 46, 17. 92. Baer, Our Lives Before the Law, 122. 93. Kerber, “Before Frontiero,” 43. 94. Martin, “Reed at 40,” 320. 95. Quoted in Linda Greenhouse, “The Evolution of a Justice,” New York Times Magazine, April 10, 2005. 96. Ibid. 97. Ibid.

134 / Notes 98. Ibid. 99. Quoted in Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Henry Holt, 2005), 211. 100. Craig v. Boren, 429 U.S. 190 (1976). 101. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). 102. Brief of Amicus Curiae for the Appellee at 12, 1974 WL 186057, Weinberger v. Wiesenfeld, 420 U.S. 636 (1974). 103. Cary Franklin, “The Anti-­Stereotyping Principle in Constitutional Sex Discrimination Law,” New York University Law Review 85 (2012): 89–90. 104. Kerber, “Before Frontiero,” 38–39. 105. Carol Pressman, “The House that Ruth Built: Justice Ruth Bader Ginsburg, Gender and Justice,” New York Law School Journal of Human Rights 14 (1997): 336. 106. See Joan C. Williams, “Beyond the Tough Guise: Justice Ginsburg’s Reconstructive Feminism,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 64–66; Neil S. Siegel and Reva B. Siegel, “Struck by Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 54–55; Linda Kerber, “Before Frontiero There Was Reed,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 40–41. 107. Felice Batlan, “Law and the Fabric of Everyday: The Settlement Houses, Sociological Jurisprudence, and the Gendering of Urban Legal Culture,” South­ern California Interdisciplinary Law Journal 15 (2006): 24. 108. For more discussion on the inclusive reach of Ginsburg’s reasoning, see Neil Siegel, “The Jurisprudence of Justice Ruth Bader Ginsburg: ‘Equal Citizenship Stature’; Justice Ginsburg’s Constitutional Vision,” 43 (2009). 109. Ginsburg has summarized much of this criticism herself, explaining: “[Femi­ nist legal scholars] have portrayed the 1970s litigation as assimilationist in outlook, insistent on formal equality, opening doors only to comfortably situated women willing to accept men’s rules and be treated like men, even a misguided effort that harmed more women than it helped,” Ruth Bader Ginsburg and Barbara Flagg, “Some Reflections on the Feminist Legal Thought of the 1970s,” University of Chicago Legal Forum 9 (1989): 17. 110. Gretchen Ritter, “Women’s Citizenship and the Problem of Legal Personhood in the United States in the 1960s and 1970s,” Texas Journal of Women & the Law 13 (2003): 36. 111. Williams, “Beyond the Tough Guise,” 65. 112. Reva Siegel, “Text in Contest: Gender and the Constitution from a Social Movement Perspective,” University of Pennsylvania Law Review 150 (2001): 300. 113. Ruth Bader Ginsburg, quoted in Martin, “Reed at 40,” 336–37. 114. Kathleen Paratis, “Rhetoric of Justice Ruth Bader Ginsburg: Brief Comparison of the Language of the Advocate with the Language of the Justice,” Columbia Journal of Gender and Law 25 (2013): 35. 115. Martin, “Reed v. Reed at 40,” 319.

Notes / 135

Chapter 3 1. William J. Clinton, Remarks Announcing the Nomination of Ruth Bader Ginsburg to Be a Supreme Court Associate Justice ( June 14, 1993), available at http://www .presidency.ucsb.edu/ws/?pid=46684. 2. Karen Lazarus Kupetz, “Equal Benefits, Equal Burdens: Skeptical Scrutiny for Gender Classifications after United States v. Virginia,” Loyola of Los Angeles Law Review 30 (1997): 1361–62. 3. Ruth Bader Ginsburg, with Mary Harnett and Wendy W. Williams, My Own Words: Ruth Bader Ginsburg (New York: Simon and Schuster, 2016), 163. 4. Neil Siegel, “The Jurisprudence of Justice Ruth Bader Ginsburg: ‘Equal Citi­ zenship Stature’; Justice Ginsburg’s Constitutional Vision,” New England Law Review 43 (2009): 817. 5. Scott Smiler, “Justice Ruth Bader Ginsburg and the Virginia Military In­stitute: A Culmination of Strategic Success,” Cardozo Women’s Law Journal 4 (1998): 582. 6. Joan Biskupic, “Supreme Court Invalidates Exclusion of Women by VMI,” Wash­ing­ton Post, June 27, 1996, http://www.washingtonpost.com/wp-­srv/local/ longterm/library/vmi/court.htm. 7. Cary Franklin, “A More Perfect Union: Sex, Race, and the VMI Case,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 89. 8. The 1938 case of United States v. Carolene Products Co. laid the foundation for a more rigorous alternative to the rational basis test and the 1944 case of Korematsu v. United States refined a two-­tier standard of review. United States v. Caro­ lene Products Company, 304 U.S. 144 (1938); Korematsu v. United States, 323 U.S. 214 (1944). Today, any statute or governmental action that differentiates among people based on the suspect classifications of race, alienage, or national origin is assigned top-­tier strict scrutiny and is presumed to be unconstitutional—the government must demonstrate a compelling justification for the law to prove otherwise. 9. Craig v. Boren, 429 U.S. 190 (1976); the case involved an Oklahoma law that required men to be twenty-­one before they could legally purchase 3.2 percent beer, while women were required to be only eighteen. Oklahoma argued that men between the ages of eighteen and twenty-­one were more likely than women to drink and drive and that the statute was appropriately designed to curb drinking and driving among this population of young men. The court struck down the Oklahoma statute and ruled that the sex-­based differentiation was unconstitutional. 10. Craig v. Boren, 197. 11. Philippa Strum, Women in the Barracks: The VMI Case and Equal Rights (Law­rence: University Press of Kansas), 72. 12. United States v. Virginia, 518 U.S. 515 (1996), 521. 13. Ginsburg, Harnett, and Williams, My Own Words, 162. 14. Franklin, “A More Perfect Union,” 90. 15. Ginsburg, Harnett, and Williams, My Own Words, 163.

136 / Notes 16. Justice Ginsburg’s majority opinion was joined by Justices Stevens, O’Con­ ner, Kennedy, Souter, and Breyer. Chief Justice Rehnquist concurred and Justice Scalia dissented. Justice Thomas did not participate in the decision, because his son was a student at VMI. 17. Quoted in Strum, Women in the Barracks, 284. 18. Margo L. Ely, “Court’s VMI Decision Reinforces Review Standard for Sex Bias,” Chicago Daily Law Bulletin, July 8, 1996. 19. Kupetz, “Equal Benefits, Equal Burdens,” 1368. 20. United States v. Virginia, 531. 21. Ibid. 22. Ibid. 23. Ibid., 542. 24. Ibid., 537. 25. Ibid., 538. 26. Ibid., 556. 27. Ibid., n.9. 28. Ibid., 537. 29. Ibid., 543. 30. Ibid., 544. 31. Franklin, “A More Perfect Union,” 92. 32. United States v. Virginia, 536. 33. Ibid., 534. 34. Marouf Hasain Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘The Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate but Equal’ Doctrine,” Quarterly Journal of Speech 82, no. 4 (1996): 337. 35. Kupetz, “Equal Benefits, Equal Burdens,” 1334. 36. The following responses to the VMI decision laud the application of a stricter scrutiny test to gender discrimination: Elizabeth Frost-­Knappman and Kathryn Cullen-­D uPont, “United States v. Virginia,” in Women’s Rights on Trial: 101 Historic Trials from Anne Hutchinson to the Virginia Military Institute Cadets (Detroit: Gale, 1997), 143–47; Deborah Brake, “Reflections on the VMI Decision,” Ameri­can University Journal of Gender & Law 6 (1997): 35–42. 37. United States v. Virginia, 532. 38. Ibid., 545–46. 39. Ibid., 551. 40. Ibid., 549–50. Emphasis added. 41. Ibid., 550. 42. Siegel, “The Jurisprudence of Ruth Bader Ginsburg,” 816. 43. United States v. Virginia, 532. 44. Ibid., 536. 45. Deborah Rhode, Justice and Gender (Cambridge, MA: Harvard University Press, 1989), 82.

Notes / 137 46. Judith Baer, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton: Princeton University Press, 2009), 54. 47. United States v. Virginia, 533. 48. Ibid., 533–34. 49. Siegel, “The Jurisprudence of Ruth Bader Ginsburg,” 834. 50. United States v. Virginia, 533, 534. 51. Ibid., 540, 522. 52. Ibid., 557. 53. Ibid. 54. Jamin B. Raskin, “Supreme Court Veers Right on Race,” Newsday, July 11, 1996, A49. 55. United States v. Virginia, 566. 56. Ibid., 542, 540. 57. Ibid., 563. 58. Ibid., 566. 59. Ibid., 569. 60. Ibid., 601. 61. Ibid., 585, 582, 576. 62. Ibid., 596. 63. Ibid., 578. 64. Ibid., 574. 65. Ibid. 66. Ibid., 579. 67. Ibid., 579, 589. 68. Ibid., 587. 69. Ibid., 568. 70. Ibid. 71. Ibid., 570. 72. Ibid., 568. 73. Ibid., 568–69. 74. Siegel, “The Jurisprudence of Ruth Bader Ginsburg,” 815. 75. Ibid. 76. James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court (New York: Simon and Schuster, 1995), 11. 77. Robert C. Post and Reva B. Siegel, “Democratic Constitutionalism,” in The Constitution in 2020, ed. Jack M. Balkin and Reva B. Siegel (New York: Oxford University Press, 2009), 27. 78. Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment (Durham, NC: Duke University Press, 1994), 214–15. 79. Baer, Our Lives Before the Law, 90. 80. Post and Siegel, “Democratic Constitutionalism,” 25. 81. Elizabeth Wydra, “To Win the Debate over the Supreme Court, Talk about the Constitution,” Medium, Oc­to­ber 19, 2016, https://medium.com/@ElizabethWydra/

138 / Notes to-­win-­the-­debate-­over-­the-­supreme-­court-­talk-­about-­the-­constitution-­28b5ec32723 #.13bdnf72x. 82. The Nomination of Ruth Bader Ginsburg to Be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Committee on the Judiciary, 103d Congress 127 (1993) (statement of Ginsburg). 83. Franklin, “A More Perfect Union,” 100. 84. Ibid., 92. 85. Jack Balkin and Reva Siegel, “The Ameri­can Civil Rights Tradition: Anticlassification or Antisubordination?” Issues in Legal Scholarship 2 (2003): 22. 86. For more on the inclusive reach of Justice Ginsburg’s later opinions, see Neil Siegel, supra note 5. 87. Franklin, “A More Perfect Union,” 95. 88. Fisher v. University of Texas, 570 U.S. _ (2013). 89. Ginsburg, Harnett, and Williams, My Own Words, 298. 90. Hasian, Condit, and Lucaites describe the rhe­tori­cal action of the law as bound by pub­lic culture, as polysemic, and as vulnerable to social change, “Rhetorical Boundaries of ‘the Law,’ ” 335–36. 91. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1562. 92. Hasian, Condit, and Lucaites, “Rhetorical Boundaries of the Law,” 337. 93. Ibid., 339. 94. Dahlia Lithwick, “The Courts: The Conservative Takeover Will Be Complete,” Wash­ing­ton Monthly Magazine, Janu­ary/February 2012, http://washingtonmonthly .com/magazine/janfeb-­2012/the-­courts/.

Chapter 4 1. Gonzales v. Carhart, 550 U.S. 124 (2007); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). 2. Jeffrey Rosen, “Ruth Bader Ginsburg Is an Ameri­can Hero,” New Republic, Sep­tem­ber 28, 2014. https://newrepublic.com/article/119578/ruth-­bader-­ginsburg -­interview-­retirement-­feminists-­jazzercise. 3. Linda Greenhouse, “Oral Dissents Give Ginsburg a New Voice on the Court,” New York Times, May 31, 2007, A1. 4. Greenhouse, “Oral Dissents,” A1. 5. Katie L. Gibson, “The Rhetoric of Roe v. Wade: When the (Male) Doctor Knows Best,” South­ern Communication Journal 73, no. 4 (2008): 312–32. 6. Interview with Emily Bazelon, “The Place of Women on the Court,” New York Times Magazine, July 7, 2009, http://www.nytimes.com/2009/07/12/magazine/ 12ginsburg-­t.html. 7. Garrett Epps, “How the ‘Fundamental Right’ to Abortion Faded Away,” Atlantic, Oc­to­ber 16, 2014, http://www.theatlantic.com/politics/archive/2014/10/the -­disappearing-­right-­to-­abortion/381510/. 8. For clarification, partial-­birth abortion is not legitimate medical termi-

Notes / 139 nology; there is no medical state called “partial birth.” The act is also commonly misunderstood as a late-­term abortion law, but it criminalizes by method only: it targets a specific procedure described as “intact dilation and extraction” or “intact D&E.” 9. Stenberg v. Carhart, 530 U.S. 914 (2000). 10. Rebecca Traister, “Hell Hath No Fury Like Ruth Bader Ginsburg,” Salon, February 6, 2009, http://www.salon.com/2009/02/06/ruth_bader_ginsburg/. 11. Lani Guinier, “Justice Ginsburg: Demosprudence through Dissent,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 206–16. 12. Rosen, “Ruth Bader Ginsburg Is an Ameri­can Hero.” 13. Priscilla Smith, “Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation,” Harvard Journal of Law and Gender 34 (2011): 407–8. 14. See, for example, Judith A. Baer, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton: Princeton University Press, 1999); Katharine T. Bartlett, “Feminist Legal Methods,” Harvard Law Review 4 (1990): 829–88; Nancy E. Dowd and Michelle S. Jacobs, “Theories, Strategies, and Methodologies,” in Feminist Legal Theory: An Anti-­Essentialist Reader, ed. Nancy E. Dowd and ­Michelle S. Jacobs, 9–13 (New York: NYU Press, 2003); Martha Fineman, Transcending the Boundaries of the Law: Generations of Feminism and Legal Theory (Hoboken, NJ: Taylor & Francis, 2010); Lucinda Finley, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 886–904; Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review 42 (1990): 581–616; Christine Littleton, “In Search of a Feminist Jurisprudence,” Harvard Women’s Law Journal 10 (1987): 1–7; Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989); Kathleen M. Sullivan, “Constitutionalizing Women’s Equality,” California Law Review 90 (2002): 735–64; Zillah R. Eisenstein, The Female Body and the Law (Berke­ley: University of California Press, 1988). 15. Gonzales, v. Carhart. 550 U.S. 124 (2007), 171. 16. Ibid. 17. Ibid., 185. 18. Ibid. 19. Ibid. 20. Ibid. 21. Ibid., 181, 179, 191. 22. Ibid., 182. 23. Ibid., 180, 179. 24. Ibid., 186–87. 25. Ibid. 26. Ibid., 183. 27. Robert A. Ferguson, “Rhetorics of the Judicial Opinion: The Judicial Opinion as Literary Genre,” Yale Journal of Law and Humanities 2 (1990): 207.

140 / Notes 28. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1562. 29. Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse,” Dickinson Law Review 101 (1996): 39. 30. Ferguson, “Rhetorics of Judicial Opinion,” 207–8. 31. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), 1281. 32. Reva Siegel, “Equality and Choice: Sex Equality Perspectives on Reproductive Choice in the Work of Ruth Bader Ginsburg,” Columbia Journal of Gender and Law 25 (2013): 64. 33. The Nomination of Ruth Bader Ginsburg to Be Associate Justice of the Supreme Court of the United States: Hearing before the Senate Committee on the Judiciary, 103d Congress (1993) at 207. 34. Sylvia Law, “Rethinking Sex and the Constitution,” University of Pennsylvania Law Review 132 (1984): 1020. 35. Lynn Henderson, “Legality and Empathy,” Michigan Law Review 85 (1997): 1574. 36. See Katie L. Gibson, “Rhetoric of Roe v. Wade,” for more on the doctor-­ knows-­best philosophy at the center of the reasoning in Roe. 37. Roe v. Wade, 410 U.S. 113 (1973), 165–66. 38. Reva Siegel, “Roe’s Roots: The Women’s Rights Claims that Engendered Roe,” Boston University Law Review 90 (2010): 1877. 39. Gonzales v. Carhart, 170. 40. Cindy L. Griffin, “The Essentialist Roots of the Public Sphere: A Feminist Critique,” West­ern Journal of Communication 60 (1996): 21–39. 41. Gonzales v. Carhart, 171–72. 42. Reva Siegel, “Pregnancy and Sex-­Role Stereotyping, from Struck to Carhart,” Faculty Scholarship Series (2009): 1110. 43. Cass R. Sunstein, “Ginsburg’s Dissent May Well Prevail,” Los Angeles Times, April 20, 2007, A31. 44. Siegel, “Reasoning from the Body: A His­tori­cal Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (1992): 379. 45. James B. White, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” University of Chicago Law Review 52 (1985): 690. 46. Wetlaufer, “Rhetoric and Its Denial,” 1589–90. 47. Judith A. Baer, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton: Princeton University Press, 1999), 137. 48. Gonzales v. Carhart, n.3. 49. Ibid., n.6. 50. Harris v. McRae, 448 U.S. 297 (1980). 51. Gonzales v. Carhart, 51. 52. Interview with Emily Bazelon, “The Place of Women on the Court,” New York Times Magazine, July 7, 2009, http://www.nytimes.com/2009/07/12/magazine/ 12ginsburg-­t.html.

Notes / 141 53. Gonzales v. Carhart, n.8. 54. Ibid., n.8. 55. Kathryn Abrams, “The Constitution of Women,” Ala­bama Law Review 48 (1997): 867. 56. Ferguson, “Rhetorics of the Judicial Opinion,” 205. 57. Charles Evans Hughes, The Supreme Court of the United States: Its Foundation, Methods and Achievements (Wash­ing­ton, DC: Beard Books, 1928), 68. 58. Catherine Langford, “Toward a Genre of Judicial Dissent,” Communication Law Review 9 (2009): 10. 59. Gonzales v. Carhart, 191. 60. Sunstein, “Ginsburg’s Dissent May Well Prevail,” A1. 61. Interview with Katie Couric, “Ruth Bader Ginsburg on Hobby Lobby, Roe v. Wade, Retirement and Notorious R.B.G.,” Yahoo News, July 31, 2014, https:// www.yahoo.com/news/video/exclusive-­ruth-­bader-­ginsburg-­hobby-­091819044.html ?ref=gs. 62. Burwell v. Hobby Lobby Stores, 573 U.S. _ (2014). 63. Hughes, The Supreme Court of the United States, 68. 64. White, “Law as Rhetoric, Rhetoric as Law,” 690. 65. Guttmacher Institute, “State Policy Resources,” De­cem­ber 30, 2016, https:// www.guttmacher.org/state-­policy-­resources. 66. Ala­bama Senate Bill SB301. 67. Glen A. Halva-­Neubauer and Sara L. Zeigler, “Promoting Fetal Personhood: The Rhetorical and Legislative Strategies of the Pro-­Life Movement after Planned Parenthood v. Casey,” Feminist Formations 22 (2010): 119. 68. Kerber, “Before Frontiero,” 42. 69. Sarah Ferris, “US Abortion Clinics Shutter to Record Low,” The Hill, De­ cem­ber 30, 2014. 70. Whole Women’s Health v. Hellerstedt, 579 U.S. _ (2016). 71. Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review 42 (1990): 585. 72. Abrams, “The Constitution of Women,” 874. 73. Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment, 2nd ed. (New York: Routledge, 2000); Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” University of Chicago Legal Forum (1989): 139–67. See also Kathleen de Onís, “Lost in Translation: Challenging (White, Monolingual Feminism’s) with Justicia Reproductiva,” Women’s Studies in Communication 38 (2015): 1–19. 74. De Onís, “Lost in Translation,” 5. 75. Ruth Bader Ginsburg, interview by Irin Carmon, February 16, 2015, transcript, http://www.msnbc.com/msnbc/exclusive-­justice-­ruth-­bader-­ginsburg-­interview -­full-­transcript. 76. Interview with Emily Bazelon, “The Place of Women on the Court.” 77. Bartlett, “Feminist Legal Methods,” 843.

142 / Notes 78. Ferguson, “Rhetorics of the Judicial Opinion,” 218. 79. Bruce Ackerman, “Foreword: Law in an Activist State,” Yale Law Journal 92 (1983): 1083.

Chapter 5 1. See Joan C. Williams, “Beyond the Tough Guise: Justice Ginsburg’s Reconstructive Feminism,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 64–66; Neil S. Siegel and Reva B. Siegel, “Struck by Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 54–55; Linda Kerber, “Before Frontiero There Was Reed,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 40–41. 2. Julie Zellinger, “How Ruth Bader Ginsburg Became an Icon for Young Femi­nists,” Mic, No­vem­ber 2, 2015, https://mic.com/articles/127565/how-­ruth-­bader -­ginsburg-­became-­an-­icon-­for-­young-­feminists#.kHKiACnMe. 3. Richard Rorty, Contingency, Irony, and Solidarity (New York: Cambridge University Press, 1989), 7. 4. Irin Carmon, “Justice Ginsburg’s Cautious Radicalism,” New York Times, Oc­to­ ber 24, 2015, http://www.nytimes.com/2015/10/25/opinion/sunday/justice-­ginsburgs -­cautious-­radicalism.html?_r=0. 5. Lisa Ede, Cheryl Glenn, and Andrea Lunsford, “Border Crossings: Intersections of Rhetoric and Feminism,” Rhetorica 13 (1995): 438. 6. Some important contributions include Karlyn Kohrs Campbell, Man Cannot Speak for Her (New York: Greenwood Press, 1989); Barbara Biesecker, “Coming to Terms with Recent Attempts to Write Women into the History of Rhetoric,” Philosophy & Rhetoric 25 (1992) 2:140–61; Lisa Ede, Cheryl Glenn, and Andrea Luns­ ford, “Border Crossings: Intersections of Rhetoric and Feminism,” Rhetorica 13 (1995): 401–40; Andrea A. Lunsford, Reclaiming Rhetorica: Women in the Rhetori­cal Tradition (Pittsburgh: University of Pittsburgh Press, 1995); Lisa A. Flores, “Creating Discursive Space through a Rhetoric of Difference,” Quarterly Journal of Speech 82 (1996): 142–56; Karen Foss, Sonja Foss, and Cindy Griffin, Feminist Rhetorical Theories (Thousand Oaks, CA: Sage, 1999); Cheryl Glenn, Rhetoric Retold: Regendering the Tradition from Antiquity through the Renaissance (Carbondale: South­ ern Illinois University Press, 1997); Krista Ratcliffe, Anglo Ameri­can Feminist Challenges to the Rhetorical Tradition (Carbondale: South­ern Illinois University Press, 1995); S ­ hirley Wilson Logan, With Pen and Voice: A Critical Anthology of Nineteenth-­ Century Af­ri­can-­Ameri­can Women (Carbondale: South­ern Illinois University Press, 1995). 7. Joy Ritchie and Kate Ronald, eds., Available Means: An Anthology of Women’s Rhetoric (Pittsburgh: University of Pittsburgh Press, 2001), xvii. 8. Ritchie and Ronald, Available Means, xxvii. 9. Williams, “Beyond the Tough Guise,” 59.

Notes / 143 10. Siegel and Siegel, “Struck by Stereotype,” 52. 11. Ibid. 12. Brief of Sally Reed at 37, Reed v. Reed, 404 U.S. 71 (1971); Gonzales v. Carhart, 550 U.S. 124 (2007), n.8. 13. Mark Joseph Stern, “ ‘I Am an Attorney Because I Had an Abortion,’ ” Slate, Janu­ary 7, 2016, http://www.slate.com/articles/news_and_politics/jurisprudence/ 2016/01/amicus_brief_by_113_female_attorneys_supports_abortion.html. 14. Safford Unified School District v. Redding, 557 U.S. 364 (2009). 15. Nina Totenberg, “Supreme Court Hears School Strip Search Case,” National Public Radio, April 21, 2009, http://www.npr.org/templates/story/story.php ?storyId=103334943. 16. Lucinda Finley, “Breaking Women’s Silence in the Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 910. 17. Ibid. 18. Patricia Cain, “The Future of Feminist Legal Theory,” in Feminist Legal Theory: An Anti-­Essentialist Reader, ed. Nancy E. Dowd and Michelle Jacobs (New York: NYU Press, 2003), 15. 19. For early critiques of essentialism in feminist legal theory, see Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Women’s Rights Law Reporter 11 (1989): 7–11; Sarah Hoagland, Lesbian Ethics: Toward a New Value (Palo Alto, CA: Institute of Lesbian Studies, 1988); Susan Wendell, “Toward a Feminist Theory of Disability,” in Gender Basics: Feminist Perspectives on Women and Men, ed. Anne Minas (Belmont, CA: Wadsworth, 1993), ­58–63. 20. Mary Eaton, “At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprudence,” in Feminist Legal Theory: An Anti-­Essentialist Reader, ed. Nancy E. Dowd and Michelle Jacobs (New York: NYU Press, 2003), 54. 21. Angela P. Harris, “Foreword: The Jurisprudence of Reconstruction,” California Law Review 82 (1994): 772–74. 22. Finley, “Breaking Women’s Silence in the Law,” 185. 23. Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993), 6. 24. Ibid. 25. Angela Harris, “Foreword,” in Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York: NYU Press, 2001), 3. 26. The term “outsider jurisprudence” is credited to Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” Michigan Law Review 87 (1989): 2320–81. Matsuda says, “There is an outsider’s jurisprudence growing and thriving alongside mainstream jurisprudence in Ameri­can law schools,” 2323. 27. Shelby County v. Holder, 570 U.S. _ (2013), 2. 28. Ibid., 4. 29. Ibid. 30. Nancy Pelosi, “Supreme Court Takes a Step Backward on Voting Rights,”

144 / Notes Press Release, June 25, 2013, http://www.demo­craticleader.gov/newsroom/pelosi -­supreme-­court-­takes-­step-­backward-­voting-­rights/. 31. John Lewis, “Rep. John Lewis Calls Court Decision ‘a Dagger’ in the Heart of Voting Access,” Press Release, June 25, 2013, https://johnlewis.house.gov/media -­center/press-­releases/rep-­john-­lewis-­calls-­court-­decision-­dagger-­heart-­voting -­access. 32. Ibid. 33. Shelby County v. Holder, 30. 34. Bruce Ackerman, “Foreword: Law in an Activist State,” Yale Law Journal 92 (1983): 1083. 35. Matsuda, “When the First Quail Calls,” 10. 36. Shelby County v. Holder, 4. 37. Ibid., 20. 38. Lani Guinier, “Demosprudence through Dissent,” in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (New York: Cambridge University Press, 2015), 211. 39. Shelby County v. Holder, 23. 40. Ibid., 19. 41. Ibid., 36. 42. Ibid., 33. 43. Ibid., 2. 44. Ibid., 24. 45. Ibid. 46. Ibid., 25. 47. Dillard v. Crenshaw City, 640 F. Supp., 1360, quoted in Ginsburg, Shelby County v. Holder, 26. 48. Ginsburg, Shelby County v. Holder, 27. 49. Ibid., 28. 50. Ibid., 24. 51. Ibid. 52. Ibid., 9. 53. David H. Gans, “The Roberts Court v. the Constitution,” USA Today, June 26, 2013, http://www.usatoday.com/story/opinion/2013/06/25/supreme-­court-­justice -­roberts-­column/2456969/. 54. Akil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), 361, 363, 399, quoted in Ginsburg, Shelby County v. Holder, 10. 55. Akil Reed Amar, “Rethinking Originalism: Original Intent for Liberals (and for Conservatives and Moderates, too),” Slate, Sep­tem­ber 21, 2005, http://www.slate .com/articles/news_and_politics/jurisprudence/2005/09/rethinking_origi­nalism.html. 56. Gans, “The Roberts Court v. the Constitution.” 57. Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: Harper Collins, 2015), 169. 58. Neil Siegel, “The Jurisprudence of Justice Ruth Bader Ginsburg: ‘Equal Citi­ zenship Stature’; Justice Ginsburg’s Constitutional Vision,” New England Law Review 43 (2009): 843. 59. Carmon and Knizhnik, Notorious RBG, 3.

Notes / 145 60. Ruth Bader Ginsburg, with Mary Harnett and Wendy W. Williams, My Own Words: Ruth Bader Ginsburg (New York: Simon and Schuster, 2016), 277. 61. Fisher v. University of Texas, 570 U.S. _ (2013); Vance v. Ball State University, 570 U.S. _ (2013). 62. Interview with Marcia Coyle, “Ginsburg on Rulings, Race,” National Law Journal, August 22, 2014, http://www.nationallawjournal.com/id=1202667692557/ Ginsburg-­On-­Rulings-­Race?slreturn=20170010093308. 63. Mark Joseph Stern, “Ruth Bader Ginsburg Was Never Really ‘Notorious RBG,’ ” Slate, Oc­to­ber 11, 2016, http://www.slate.com/articles/news_and_politics/ jurisprudence/2016/10/ruth_bader_ginsburg_s_kaepernick_comments_end_the _notorious_rbg_myth.html. 64. Heien v. North Carolina, 574 U.S. _ (2014); Perry v. New Hampshire, 565 U.S. _ (2012). 65. Ginsburg, Harnett, and Williams, My Own Words, 77. 66. Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76 (1990): 1555. 67. J. Louis Campbell, III, “The Spirit of Dissent,” Judicature 66 (1982–1983): 306. 68. Catherine L. Langford, “Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars,” Communication Law Review 9 (2009): 1–12. 69. Robert L. Ivie, “Enabling Democratic Dissent,” Quarterly Journal of Speech 101 (2015): 50. 70. Ivie, “Enabling Democratic Dissent,” 50–51. 71. Ibid., 51. 72. Marouf Hasian Jr. and Earl Croasman, “Rhetoric’s Revenge: The Prospect of a Critical Legal Rhetoric,” Philosophy and Rhetoric 29 (1996): 385. 73. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” 1595. 74. Yale Law professor Reva Siegel argues that extralegal voices in judicial reasoning activate this communicative pathway, connecting the argument inside the court to the experiences and claims made about the Constitution by persons outside of the court. See “Text in Contest: Gender and the Constitution from a Social Movement Perspective,” The University of Pennsylvania Law Review 150 (2001): 300. 75. Guinier, “Demosprudence through Dissent,” 212. 76. Ibid., 213. 77. See, for example: James Boyd White, “Law as Rhetoric, Rhetoric as law: The Arts of Cultural and Communal Life,” University of Chicago Law Review 52 (1985): 684–702; Kimberlé Williams Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Stanford Law Review 43 (1991): 1241–99; Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse,” Dickinson Law Review 101 (1996): 3–40; Patricia A. Sullivan and Steven R. Goldzwig, “A Relational Approach to Moral Decision-­ Making: The Majority Opinion in Planned Parenthood v. Casey,” Quarterly Journal of Speech 81 (1995): 167–90. 78. William Lewis, “Law’s Tragedy,” RSQ: Rhetoric Society Quarterly 21 (1991): 11–12. 79. Marouf Hasian Jr., Celeste Michelle Condit, and John Louis Lucaites, “The

146 / Notes Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate but Equal’ Doctrine,” Quarterly Journal of Speech 82 (1996): 324. 80. Guinier, “Demosprudence through Dissent,” 213. 81. Karlyn Kohrs Campbell and Kathleen Hall Jamieson, “Introduction,” South­ ern Speech Communication Journal 51 (1986): 294. 82. Joshua Gunn, “The Rhetoric of Exorcism: George W. Bush and the Return of Po­liti­cal Demonology,” West­ern Journal of Communication 68 (2004): 6. 83. Robert A. Ferguson, “Rhetorics of the Judicial Opinion: The Judicial Opinion as Literary Genre,” Yale Journal of Law and Humanities 2 (1990): 208, 213. 84. Irin Carmon and Shana Knizhnik, “8 Ways to Be as Awesome as Ruth Bader Ginsburg,” Cosmopolitan, Oc­to­ber 30, 2015, http://www.cosmopolitan.com/politics/ a48513/ruth-­bader-­ginsburg-­notorious-­rbg-­supreme-­court/; Ian Millhiser, “Justice Ginsburg’s Ominous Warning about Creeping Corporate Power,” ThinkProgress, De­cem­ber 15, 2015, https://thinkprogress.org/justice-­ginsburgs-­ominous-­warning -­about-­creeping-­corporate-­power-­c201ba27e420#.aghhe3hhv; Allana Vagianos, “Ruth Bader Ginsburg Tells Young Women: Fight for the Things You Care About,” Huffington Post, June 2, 2015, http://www.huffingtonpost.com/2015/06/02/ruth-­bader -­ginsburg-­fight-­for-­the-­things-­you-­care-­about_n_7492630.html; Mark Joseph Stern, “RBG Makes Yet Another Brilliant Point About the Constitutional Necessity of Marriage Equality,” Slate, No­vem­ber 16, 2015, http://www.slate.com/blogs/outward/ 2015/11/16/ruth_bader_ginsburg_on_gay_marriage_a_constitutional_necessity.html; Debra Cassens Weiss, “What Is Ginsburg’s Message to Young Feminists?” Ameri­ can Bar Association Journal, Sep­tem­ber 29, 2014, http://www.abajournal.com/news/ article/what_is_justice_ginsburgs_message_to_young_feminists. 85. Nia-­Malika Henderson, “How Justice Ginsburg’s Hobby Lobby Dissent Helps Shape the Debate about Reproductive vs. Religious Rights,” Wash­ing­ton Post, July 1, 2014, https://www.washingtonpost.com/blogs/she-­the-­people/wp/2014/ 07/01/how-­justice-­ginsburgs-­hobby-­lobby-­dissent-­helps-­shape-­the-­debate-­about -­reproductive-­and-­religious-­rights/?utm_term=.48d1e1e1c3ad. 86. Dana Liebelson, “The 8 Best Lines from Ginsburg’s Dissent on the Hobby Lobby Contraception Decision,” Mother Jones, 30 June 2014, http://www.motherjones .com/politics/2014/06/best-­lines-­hobby-­lobby-­decision; Janet Allon, “10 Blistering Highlights from Justice Ruth Bader Ginsburg’s Hobby Lobby Dissent,” AlterNet, July 1, 2014. 87. Obergefell v. Hodges, 576 U.S. _ (2015). 88. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of the Law,” 339. 89. For examples, see Sumi K. Cho, “Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong,” in Critical Race Feminism: A Reader, ed. Adrien Katherine Wing (New York: NYU Press, 2003), 203–20; Lorie M. Graham, “The Past Never Vanishes: A Contextual Critique of the Existing Indian Family Doctrine,” Ameri­can Indian Law Review 23 (1998): 1–54; Andrew Gilden, “Toward a More Transformative Approach: The Limits of Transgender Formal Equality,” Berke­ley Journal of Gender, Law, & Justice 23 (2008):

Notes / 147 83–144; Darren Lenard Hutchinson, “Ignoring the Sexualization of Race: Hetero­ norma­tivity, Critical Race Theory and Anti-­Racist Politics,” Buffalo Law Review 47 (1999): 1–116; Michelle S. Jacobs, “Prostitutes, Drug Users, and Thieves: The Invisible Women in the Campaign to End Violence Against Women,” Temple Po­liti­ cal & Civil Rights Law Review 8 (1999): 459–76.

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Index

abortion clinics, 99–100, 101, 106–7 abortion jurisprudence, 84–102 abortion law: disproportionate harm caused by, 104; and personhood of women, 91– 94; and rights of men, 92; terminology, 138–39n8; women’s health exception, 86 abortion law cases: Harris v. McRae, 96; Maher v. Roe, 96; Stenberg v. Carhart, 86; Whole Women’s Health v. Hellerstedt, 100, 106–7. See also Gonzales v. Carhart dissent (Ginsburg); Roe v. Wade abortion restrictions, 87–91, 95–97, 99–100, 101, 107–8 abortion rights. See reproductive rights abortions, Kennedy on, 89–90, 96, 107 Abrams, Kathryn, 97, 100 abstraction: in Bradley’s Bradwell v. Illinois concurring opinion, 7–8; in Goesaert v. Cleary opinion, 28; in Hoyt v. Florida opinion, 31–32; RBG’s challenge to, 91– 94; in Shelby County v. Holder opinion, 113; in traditional voice of the law, 70–71; in United States v. Virginia dissent, 75 Academic Revolution, The ( Jencks and Riesman), 68 ACLU Women’s Rights Project: equal protection claims of male plaintiffs, 57; and

levels of scrutiny, 60; RBG’s challenge to separate spheres precedent, 37; RBG’s involvement with, 20, 39 Adams, Abigail, 91 Adams, John, 91 affirmative action, 81–82, 106, 116 Af­ri­can Ameri­cans. See racial discrimination ahistoricism, 109 Ala­bama: racial discrimination in, 113; women and jury service, 30 Alito, Samuel, 83, 84 Amar, Akhil Reed, 115 Ameri­can Civil Liberties Union (ACLU): and Reed v. Reed, 15, 39. See also ACLU Women’s Rights Project antidiscrimination, 56, 88 antiessentialist feminist jurisprudence, 12, 108, 109 antifeminist laws and policies, 13 antirhetorical stance of traditional legal discourse, 3, 36, 45, 82, 117–18, 119 antisubordination: and doctrine of equality, 81; RBG’s commitment to, 46–47, 78; and United States v. Virginia, 69–73; and US Constitution, 80, 115 Aristotle, 104–5 Ayer, Eleanor, 15, 39

162 / Index Baer, Judith: on feminist jurisprudence, 41, 55; on Muller v. Oregon precedent, 25; on need for progressive constitutional vision, 79; on the sameness/difference paradigm, 71–72; on universal rhetoric of Roe v. Wade, 95 Balkin, Jack, 81 “Bartending Act” (Michigan), 14, 26, 129n43 Bartlett, Katharine, 8, 11, 40, 44, 101, 125n46 Batlan, Felice, 59 Beauvoir, Simone de, 50, 60 Bennett, Judith, 28 Bill of Rights, 77 Bird, Caroline, 50 Blackmun, Harry, 56–57, 85–86 Blackstone, William, 48 black women, 12. See also women; women of color Bloody Sunday, 112, 113 Born Female (Bird), 50 Bradley, Joseph P.: Bradwell v. Illinois concurring opinion, 6–10, 11; Muller v. ­Oregon, 88 Bradwell, Myra, 5, 8, 9, 10, 11 Bradwell v. Illinois, 4–11, 14, 15, 19, 22, 24, 25, 27, 29, 31, 37, 38, 40, 41, 46, 57, 70, 96, 118; Brewer, on role of women, 88; as prece­dent, 53; RBG on, and rhetoric of ­closure, 25 Brennan, William, 64 Brewer, David J.: Muller v. Oregon unanimous opinion, 21–26, 127–28n13; on role of women, 88; on separate spheres, 34 Breyer, Stephen, 136n16 Brown v. Board of Education, 42 Burger, Warren: Reed v. Reed opinion, 57 Burger court: formalist reasoning of, 106 Burwell v. Hobby Lobby Stores, Inc., 98, 100, 121 Bush, George H. W., 78 Bush, George W., 84, 86 Cain, Patricia, 13, 108 Campbell, Amy, 45, 51 Campbell, J. Louis, 118 Campbell, Karlyn Kohrs, 4 Carmon, Irin, 20, 116 Century of Struggle (Flexner), 50

Chicago Legal News, 5 childcare availability, 44, 51, 59, 106 citizen action: and the law, 120–21 citizenship stature for women: RBG’s advocacy for, 34–35, 36–37, 40; and RBG’s Gonzalez v. Carhart dissent, 86–87; and United States v. Virginia, 72 civil rights statutes, 81 Civil War Amendments, 110, 114, 115 Clarke, Edward H., 67 Cleveland, Grover, 48 Clinton, William Jefferson, 62, 78 closed discourse: the law as paradigm of, 3, 9 closure: amplified by precedential reasoning, 53; in Bradley’s Bradwell v. Illinois concurring opinion, 8–10; challenged by RBG in the Reed brief, 52, 53, 60; in Goesaert v. Cleary opinion, 29; in Hoyt v. Florida opinion, 32–33; in Muller v. ­Oregon opinion, 24–25; in Shelby County v. Holder opinion, 114; in United States v. Virginia dissent, 76–77; Wetlaufer on, 13 Collins, Patricia Hill, 100 color blindness: conservative embrace of, 80, 81–82; Roberts, in Shelby County v. Holder opinion, 111 Columbia Law School, 20, 30 Columbia University: sex discrimination lawsuit at, 37 Condit, Celeste, 22, 82, 120, 121, 138n90 conservative constitutionalism: vs. progressive constitutionalism, 78–79; in Scalia’s VMI dissent, 73–77. See also legal classicism Constitutional Accountability Center, 80 contraception, access to, 46, 98 Cornell University, 30 coverture: common law of, 9 Craig v. Boren, 57, 64, 66, 135n9 Crenshaw, Kimberlé, 8, 12, 100, 109 Darwinism and sec­ond-­­class status of women, 14, 19, 22, 24–25, 127–28n13, 127n3 Davidson, Cathy, 34 Davis, Angela, 24 Declaration of Sentiments (Stanton), 48 Delgado, Richard, 109 de Onís, Kathleen, 100

Index / 163 discursive privilege: disruption of, 101, 109 dissent, 118, 121–22; Burwell v. Hobby Lobby, 98; Gonzales v. Carhart, 85, 86, 98; read aloud, 84–87, 98, 111, 116; Shelby County v. Holder, 111, 116 divine ordination of sex discrimination, 5, 6–7, 9, 43, 67 Dodson, Scott, 29–30 domestic violence, 30. See also reproductive rights: of abuse victims Dowd, Nancy, 12 Due Process Clause, 124n21, 126–27n2 Eastman, Mary, 50 Eaton, Mary, 108 economic privilege, 8, 14, 24, 36 Ede, Lisa, 104 Eighth Circuit Court of Appeals, 86 Eisenstein, Zillah, 4, 7 Epps, Garrett, 85–86 Epstein, Cynthia Fuchs, 104 equality: doctrine of, 68, 81; as rationale for reproductive rights, 16, 84–102, 103–4 Equal Protection Clause, 124n21; and claims of sex discrimination, 8; and commitment to antisubordination, 72; Franklin on, 58; and Goesaert v. Cleary opinion, 29; and rational basis test, 63; and Reed v. Reed, 15, 55, 61; and United States v. Virginia, 15, 63, 65; and progressive constitutionalism, 80. See also Harper v. Virginia Board of Elections Erickson, Nancy, 26 essentialism: feminist legal theory, 12, 41, 108, 126n52, 143n19 estate administration: Idaho statute on, 39 excluded and marginalized persons: access to abortion, 95–97; and feminist jurisprudence, 12; RBG’s commitment to, 78, 82, 107–8; RBG’s United States v. Virginia opinion, 69–73; Scalia chides RBG for attention to, 76; and traditional voice of the law, 77, 109; voices of, and the Constitution, 79; voices of, and the law, 125n46 exclusionary scripts, 33–37 extralegal voices and evidence: RBG’s use of in Reed brief, 51; role in shaping

Ameri­can law, 117, 119; R. Siegel on, 60, 145n74; and women’s citizenship, 11 family leave, paid, 58, 103 FBI (Federal Bureau of Investigation), 113 feminist jurisprudence, 2, 11; alternative fields of argument in, 97–102; language of, 55–61; and law as instrument of patriarchy, 87–88; and need for alternative language, 11–18, 40; need for emphasis on context, 51, 95, 97; and RBG’s judicial voice, 104–110; rhetorical form of, 89; rhetoric of context, 47–52; role of anti­ subordination in, 46–47, 78; role of linguistic dissent in, 104; and the “woman question,” 11–12. See also antisubordina­ tion: RBG’s commitment to; Baer, Judith: on feminist jurisprudence; responsiveness; skepticism feminist legal scholars: criticism of RBG, 81, 134n109 feminist legal theory: attention to marginalized voices, 12, 40, 59, 100–102, 109; ­essentialism in, 12, 41, 108, progress in, 13, 108. See also essentialism Ferguson, Robert: features of judicial opinion, 3, 7; on judicial voice, 97, 101, 120; on the law’s presumption of neutrality, 90; monologic voice of traditional legal discourse, 4 Ferris, Sarah, 99–100 fetal personhood, 92, 94, 99 Fifteenth Amendment, 111, 113, 114 Fineman, Martha, 12, 52 Finley, Lucinda: on legal language, 107, 108– 9; masculinist perspective of legal language, 4; men’s understanding of women and the law, 49; on rhetoric of abstraction in the law, 7; on rhetoric of universality in the law, 107; on traditional voice of the law, 3, 50, 51 Fisher v. University of Texas, 82 Flexner, Eleanor, 50 Florida: women and jury service. See Hoyt v. Florida Fourteenth Amendment, 124n21; and Lochner v. New York, 127n10. See also Due Process Clause; Equal Protection

164 / Index Clause; exclusionary scripts; Fourteenth Amendment equal protection law; Fourteenth Amendment progress; Privileges and Immunities Clause Fourteenth Amendment equal protection law: Cary on RBG and histories of discrimination, 80–81; critics of RBG’s approach, 59; race-­conscious vision of, 82; RBG and principle of antidiscrimination, 56; and Reed v. Reed brief, 103; and United States v. Virginia opinion, 103 Fourteenth Amendment progress: criticized by Scalia, 77; expressed by RBG in the Reed brief, 15, 52–55; and Gonzales v. Carhart dissent, 88; RBG and United States v. Virginia, 62–83; in RBG’s United States v. Virginia opinion, 69–70, 72–73; and US Constitution, 79–80, 115– 16; White v. Crook defense of, 54 Frank, Jerome, 33 Frankfurter, Felix: Goesaert v. Cleary opinion, 27–29, 54, 57; on progressive constitutionalism in United States v. Dege, 54; rejection of RBG as clerk, 30; separate spheres, 34 Franklin, Cary: on RBG and histories of discrimination, 80–81; on Supreme Court and Equal Protection Clause, 58; on United States v. Virginia opinion, 63, 68, 81 free­dom of contract, 21, 126–27n2 Freedom Summer, 112 Frelinghuysen, Senator: on nature of women, 43 French, Amy Holtman, 26–27, 28 Frontiero v. Richardson, 46, 66 Fuller, Margaret, 50, 60 Gans, David, 114 gender neutrality, 40, 41, 45 gender stereotypes: challenged by RBG’s Reed brief, 55–57 General Federation of Women’s Clubs (GFWC), 128n402 German Federal Constitutional Court, 54 Ginsburg, Ruth Bader: confirmation hearing, 77–78, 80, 91; criticism of, 59, 105–6, 117, 134n109; as cultural icon, 105, 116, 122;

early life and education of, 20, 29–30; headlines/popu­larity, 121; nomination to Supreme Court, 62, 78 Glenn, Cheryl, 104 Glenn, Evelyn Nakano, 24 Goesaert, Margaret, 129n43 Goesaert v. Cleary, 14, 19, 26–30, 129n43; based on “antiquarian” male attitude ­towards women, 45; press response, 27; RBG on, as precedent, 53–54. See also Frankfurter, Felix: Goesaert v. Cleary opinion; rational basis test Gonzales, Alberto (Attorney General), 86 Gonzales v. Carhart dissent (Ginsburg), 16– 17, 84–102; alternative field of argument in, 97–102; and differences in women’s lived experiences, 95; equality rationale in, 103–4 Gonzales v. Planned Parenthood Federation of America, 86 government interest. See rational basis test Grand Laundry (Portland, OR), 21 “grandparent brief.” See Reed v. Reed brief (Ginsburg) Greenhouse, Linda, 56, 85 Griffin, Cindy, 93 Grimke, Sarah, 46 Griswold, Erwin, 20 Grossman, Joanna, 32 Guinier, Lani, 111–12, 119 Gunn, Joshua, 120 Halva-­Neubauer, Glen A., 99 Harlan, John Marshall: Hoyt v. Florida majority opinion, 31–33, 45–46, 88; Plessy v. Ferguson dissent, 98; separate spheres, 34 Harnett, Mary, 38 Harper v. Virginia Board of Elections, 54 Harris, Angela, 12, 100, 108 Harris v. McRae, 96 Harvard Law Review, 20 Harvard Law School, 11, 20, 30 Harvard University: Clarke on admission of women, 67 Hasian, Marouf, Jr., 22, 82, 120, 121, 138n90 Hatcher, Jessamyn, 34 Henderson, Lynn, 92 Henderson, Nia-­Malika, 121

Index / 165 heteronormativity, 4, 6, 7, 14, 24, 35, 36, 95 higher education: women’s exclusion from, 66–67 Hofstadter, Richard, 127–28n13 Holmes, Oliver Wendell, 53–54 Hoyt, Gwendolyn, 30–31 Hoyt v. Florida, 14, 30–33; attempt to overturn, 42; RBG on, in Reed brief, 45–46; role of women in majority opinion, 88; and traditional voice of the law, 19–21 Human Rights Campaign, 121 Ibsen, Henrik, 47 Idaho law: and Reed v. Reed case, 39, 44, 56, 63 Illinois (state): labor-­standards laws in, 126– 27n2; women as lawyers in, 5 Illinois Supreme Court, 5 inevitability: in Bradley’s Bradwell v. Illinois concurring opinion, 7; as central to judicial opinion genre, 128n20; Frankfurter in Goesaert v. Cleary opinion, 27; in Muller, Goesaert, and Hoyt opinions, 22– 23. See also patriarchal bias of the law: and posture of inevitability intact dilation and extraction, 138–39n8 intermediate level of review: and ACLU Women’s Rights Project, 60; and Craig v. Boren, 57, 64, 66; and RBG’s United States v. Virginia opinion, 66; United States v. Virginia dissent, 75 Ivie, Robert, 118 Jacobs, Michelle, 12 Jamieson, Kathleen Hall, 4 “Jane Crow and the Law” (Murray and Eastman), 42, 50 Janeway, Elizabeth, 50, 132n47 Jefferson, Thomas, 42–43 Jencks, Christopher, 68 Jordan, Gwen Hoerr, 5, 8 jury service: Kerber on, 31; and women, 14, 30–32 Kanowitz, Leo, 50 Kennedy, Anthony: and Fisher v. University of Texas dissent, 82; and VMI, 136n16; on women and abortions, 89–90, 96, 107

Kenyon, Dorothy, 42 Kerber, Linda, 31, 55, 58, 99 King, Martin Luther, Jr., 114, 119 Knizhnik, Shana, 20, 116 Korematsu v. United States, 135n8 Kraditor, Aileen, 50 Kupetz, Karen, 62, 65, 69 labor-­standards laws. See free­dom of contract; Illinois (state): labor-­standards laws in; maximum-­hour laws; men: and labor-­standards laws; Progressive movement; women: and labor-­standards laws; women: and overtime work Langford, Catherine, 98 Law, Sylvia, 91–92 law education: RBG on sexism in, 36 Lawrence, Charles B., 5 Lawrence, Charles R., III, 109 lawyers: women as, 5, 10 Ledbetter v. Goodyear Tire & Rubber Co., 84 legal classicism, 9 legal discourse: and conservative constitutionalism, 73–77; objectivity, abstraction, and closure, 3; patriarchal bias of, 4–5; RBG’s challenge to, 13–14; Wetlaufer on, 11, 40 Lewis, John, 111 Lewis, William, 119 LGBTQ women: and separate spheres, 35 liquor traffic: regulation of, 29 Lithwick, Dahlia, 18, 83 Littleton, Christine, 51 Lochner v. New York, 21, 26, 127n10 Lockwood, Belva, 10 logic of whiteness, 4, 14, 24, 36, 50, 109 Lucaites, John Louis, 22, 82, 120, 121, 138n90 Lunsford, Andrea, 104 MacKinnon, Catharine, 12, 91, 125n51 Magruder, Benjamin, 126–27n2 Maher v. Roe, 96 Mansfield, Arabella, 5 Mansfield, Walter, 53 Man’s World Woman’s Place ( Janeway), 50 marriage equality, 58, 103, 121 Marshall, Thurgood, 38, 62, 79, 105 Martin, Emily, 56, 61

166 / Index Mary Baldwin College, 65, 70 Matsuda, Mari J.: on abstraction and detachment in the voice of the law, 111; on outsider jurisprudence, 12, 126n56; on traditional voice of the law, 36, 109 maximum-­hour laws, 21, 126–27n2, 127n7 Medicaid funding for abortions, 96 Meese, Edwin, 83 men: and labor-­standards laws, 21; rights of, and abortion law, 92; and VMIs men-­only admissions policy, 15, 62–63, 64–65, 66, 77 Michigan Liquor Control Commission, 26 Mill, John Stuart, 50 Miller, Samuel, 5–6 Minersville School District v. Gobitis, 98 minimal scrutiny. See rational basis test Minor v. Happersett, 10 Mississippi: voter registration systems, 113; women and jury service, 30 monologic voice of traditional legal discourse, 3–4, 7, 14, 34, 36, 82, 90, 121 Morris, Richard, 73 motherhood: cultural understanding of, 59 “mothers of the race” rhetoric, 23–24, 35 Muller, Curt, 21 Muller, Goesaert, and Hoyt precedents: RBG on, in Reed brief, 45, 53–54; and traditional voice of the law, 33, 36 Muller v. Oregon, 21–26, 127n7; Bradley on role of women, 88; and Darwinism, 14, 19, 127–28n13; irrelevant to issues in Reed v. Reed, 45; RBG on, in Reed brief, 53 Murray, Pauli: cited in Reed brief, 42, 60. See also “Jane Crow and the Law” (Murray and Eastman); “Negro Woman’s Stake in the Equal Rights Amendment, The” (Murray); racism and sexism: Murray on connection between Myrdal, Gunnar, 131n20 National Women’s Law Center, 38 National Women’s Trade Union League (NWTUL), 128n402 “Negro Woman’s Stake in the Equal Rights Amendment, The” (Murray), 50 neutrality, 87–91, 106, 109

New Right, 78–79 New York (state), 127n10 New York Herald, 48 New York Times, on Goesaert v. Cleary decision, 27 “Notorious RBG” meme, 1–2, 116, 122 Noun, Louise, 51 Obama, Barack, 110 Obergefell v. Hodges, 121 objectivity: in Bradley’s Bradwell v. Illinois concurring opinion, 6–7; in Muller v. Oregon opinion, 22 O’Connor, Sandra Day, 83, 136n16 Oregon Supreme Court, 127n7 outsider jurisprudence, 12–13, 117, 126n56. outsider voices. See extralegal voices and evidence overtime work. See women: and overtime work Palme, Olaf, 55 partial-­birth abortion, 138–39n8 Partial-­Birth Abortion Ban Act of 2003, 86, 88, 96 patriarchal bias of the law: Bradley’s rhetoric and, 6–7; in cases denying women equal citizenship stature, 7, 88; chivalrous concern for women, 47– 48; and posture of inevitability, 23; and precedents for sex discrimination, 14– 15, 40; RBG’s challenge to, 1–2, 38, 87–88; and RBG’s Reed brief, 10, 15, 41–47; reaffirmed in Roe v. Wade, 85–86; Scalia’s endorsement of, 73–77; and traditional voice of the law, 4–5, 83; in the twentieth century, 33; in United States v. Virginia, 65–69 pay-­discrimination lawsuit at Rutgers University, 37 Pelosi, Nancy, 110–11 Peratis, Kathleen, 60 personhood. See fetal personhood; women: personhood of Personhood USA, 99 physicians: women as, 10 Planned Parenthood v. Casey, 88, 89, 92, 97 Plessy v. Ferguson, 42, 98

Index / 167 po­liti­cal motives and the judiciary: and Gonzales v. Carhart opinion, 89–90 poor women. See reproductive rights: of poor women Post, Robert, 78, 79–80 precedent, 52, 53 preclearance requirement (Voting Rights Act, Section 5), 110, 112, 113 President’s Commission on the Status of Women, 51 Pressman, Carol, 58 privacy framework for abortion law: reframed as right of equality. See reproductive rights: and privacy vs. equality privilege, 23–24 Privileges and Immunities Clause, 5, 6, 124n21. See also conservative constitutionalism; progressive constitutionalism progressive constitutionalism, 79, 80, 115–16. See also conservative constitutionalism Progressive movement, 21 protective oversight of women: perceived need for, 25, 36, 43, 128n40 race-­conscious vision of equal protection law, 82–83 racial discrimination: in Ala­bama, 113; court majority’s failure to consider history and context of, 17, 111, 112; history of, 113–14; and language of the law, 4, 6, 14, 24, 35– 36, 95, 109; and Plessy v. Ferguson, 42; and RBG’s feminist jurisprudence, 103; RBG’s insistence upon visibility of, 111– 12; and suspect classification, 131n20 racism and sexism: Murray on connection between, 42 Radice v. New York, 25 rational basis test, 127n10, 135n8; and classification of women, 57; and Goesaert v. Cleary, 27–28; and levels of scrutiny, 63 Ray, Angela, 10 Reagan, Ronald, 78, 83 reconstructive feminism, 59, 108 Redding, Savana, 107 Reed, Richard Lynn, 39 Reed, Sally, 15, 39–40, 44 Reed v. Reed, 10, 15, 38–61; Burger opinion, 57; mentioned in VMI opinion, 69; and

rational basis test, 57, 63; unanimous decision in, 39, 55 Reed v. Reed brief (Ginsburg), 15; alternative rhetoric of, 103; challenge to gender stereotypes, 55–56, 58; and his­tori­cal context of women’s equal citizenship stature, 36, 80–81; rhetoric of, and feminist jurisprudence, 55–61; skepticism, rhetoric of, 41–47, 56, 58; table of ­authorities, 50–51 Rehnquist, William, 62, 78, 136n16 Reno, Janet, 63 reproductive rights: abortion restriction ­reframed by RBG as sex discrimination, 87–91; of abuse victims, 96, 97, 107– 8; of adolescent women, 95, 96; of poor women, 95–97, 101, 107–8; and privacy vs. equality, 87, 91–94; and woman-­as-­ mother concept, 35, 93. See also abortion jurisprudence; abortion law; abortion law cases; abortion restriction; equality: as rationale for reproductive rights responsiveness: RBG’s rhetorical commitment to, 60, 89, 119; in RBG’s United States v. Virginia opinion, 73, 79; RBG’s use of in Reed brief, 52–55 rhetorical action: vs. antirhetorical stance of traditional legal discourse, 82, 119–21, 138n90; described, 117; as pathway between court and citizenry, 83; Shelby County v. Holder dissent, 113; and situated nature of jurisprudence, 88–89 rhetorical genres, 3–4, 120, 123–24n10 Rhode, Deborah, 71 Richards, Cindy Koenig, 10 Riesman, David, 68 Ritchie, Joy, 105 Ritter, Gretchen, 59 Roberts, John: appointment to Supreme Court, 84; Shelby County v. Holder opinion, 109–10, 111–13, 114 Roberts court: 2007 decisions, 84–85; RBG’s challenges to, 83, 84–85, 116 Roe v. Wade: and privacy framework, 91–92; problematic rhetoric of, 85–86, 87, 92, 99; universal rhetoric of, 95 Ronald, Kate, 105 Rorty, Richard, 2, 104

168 / Index Rosenburg, Rosalind, 24 Rubinson, Robert, 3, 23, 90 Rutan v. Republican Party of Illinois, 77 Rutgers University, 36–37, 39 Safford Unified School District v. Redding, 107 Sail’er Inn, Inc. v. Kirby, 43 Salon (website), 86 sameness/difference paradigm, 71–72, 73–77 Santayana, George, 112 Scalia, Antonin: criticism of progressive constitutionalism, 77; United States v. Virginia dissent, 16, 73–77, 79, 82, 136n16 school integration plans, 82 scrutiny: levels of, 63, 72, 135n8, 136n36. See also intermediate level of review; rational basis test; skeptical scrutiny; strict scrutiny; suspect classification Second Sex, The (Beauvoir), 50 Seidenberg, Faith, 51 Seneca Falls Convention, 48, 50 separate spheres: in Bradley’s Bradwell v. ­Illinois concurring opinion, 6–7, 8; and Goesaert v. Cleary, 26–27, 29; and Hoyt v. Florida opinion, 31; and language of Darwinism, 127–28n13; RBG on, in Reed brief, 43–45, 53–55, 57–58, 132n47; Tocqueville on, 131–32n23; in traditional voice of the law, 19–37; and VMI mission, 64. See also LGBTQ women: and separate spheres; logic of whiteness; working-­class women sex-­based classification: considered a suspect class, 55–56, 68, 131n20; in Craig v. Boren, 135n9; how to evaluate, 72; and levels of scrutiny, 61, 63; RBG on, in Reed brief, 47; rooted “in the aggregate,” 75–76; and traditional voice of the law, 33 sex-­blind formal equality, 59–60, 81, 105–6 sex discrimination: as abortion restriction, 87–91; and Equal Protection Clause, 8; framed as benign and protective, 43; heightened level of scrutiny for, 57, 64, 65–66, 69, 136n36; history of, documented in Reed brief, 42–43; Kerber on, 58; Muller, Goesaert, and Hoyt as prece­dents for, 14–15, 19–21, 40. See also

Warren court: and sex discrimination; women sexual assault, 97 Shakespeare, William, 28, 112 Shelby County v. Holder, 17, 109–10, 110– 17, 119 Siegel, Neil: on inclusive reach of RBG’s reasoning, 134n108; on levels of scrutiny for equal protection cases, 72; on RBG and formal equality, 105–6; on RBG’s confirmation hearing, 77–78; on RBG’s constitutional vision, 71, 116 Siegel, Reva: on antisubordination vision of equality, 81; on extralegal voices, 60, 145n74; on progressive constitutional ­vision, 79–80; on RBG and equality argu­ments, 91, 93, 105–6; on Reagan Justice Department judicial appointments, 78 Sismondo, Christie, 28–29 skeptical scrutiny: in RBG’s United States v. Virginia opinion, 63, 65–69, 73, 103; term described, 66 skepticism: and context of patriarchal bias, 44; and racial discrimination, 111; RBG’s use of in Reed v. Reed brief, 41–47, 56, 58; RBG’s use of in United States v. Virginia opinion, 65–66, 68; Scalia’s challenge to, 74 Slaughterhouse Cases, 6 Smith, Priscilla, 87 social change and response of the law: in Bradwell v. Illinois, 9–10; in G ­ oesaert v. Cleary opinion, 29; in Gonzales v. Carhart dissent, 88; in Hoyt v. Florida opinion, 32–33; RBG on, in Reed brief, 60 sociological data and insight: Goesaert v. Cleary, 54; RBG’s use of in Reed brief, 47, 51 Sotomayor, Sonia, 117 Souter, David, 136n16 South Carolina: women and jury service, 30 speaking differently: RBG’s commitment to, 2, 14, 17–18, 104, 108, 118 Stanton, Elizabeth Cady, 48, 49, 60, 119 stare decisis, 52. See also precedent states’ rights, 94, 113, 114

Index / 169 Stenberg v. Carhart, 86 Stern, Mark Joseph, 116–17 Stevens, John Paul, 136n16 Stone, Harlan, 98 Strebeigh, Fred, 39 strict scrutiny, 56, 63–64, 66, 68, 69, 135n8 Strong-­Minded Women (Noun), 51 Strum, Philippa, 64 Subjection of Women, The (Mill), 50 Submissive Majority, The (Seidenberg), 51 Sullivan, Kathleen, 40 Sunstein, Cass, 93–94, 98 suspect classification: sex-­based classification as, 55–56, 68, 131n20; and strict scrutiny, 63, 135n8 Sutherland, George, 25 Tenth Amendment, 113 Thomas, Clarence, 136n16 Tocqueville, Alexis de, 42, 131–32n23 Totenberg, Nina, 1, 107 Traister, Rebecca, 2, 86 Truth, Sojourner, 49–50, 60, 119 US Constitution: Frankfurter on, 29; interpretation of, 114; and progressive constitutionalism, 79, 80, 115–16; as static document, 9 US Department of Labor, 51, 52 US Supreme Court: citizen action and, 121–22; conservative shift, 83, 84–85, 86; importance of diversity on, 117; RBG nominated to, 62, 78; as a rhetorical institution, 83; secular shift in the court’s rhetoric, 22. See also patriarchal bias of the law United States v. Carolene Products Co., 135n8 United States v. Dege, 54 United States v. Virginia (referred to as VMI ), 15–16, 62–83; decision, 136n16; responses to, 136n36; dissent (Scalia), 16, 73–77, 79, 82, 136n16 United States v. Virginia majority opinion (Ginsburg), 77–83; challenge to law’s traditional voice, 15–16, 78; cited in Gonzales v. Carhart dissent, 93; and inclusive vision of equal protection, 103; theme of progress in, 69–70, 88

universality: Finley on, 107; and the law’s voice of finality and closure, 94–97. See also women of color: and presumed universality of women Up from the Pedestal (Kraditor), 50, 51 Virginia (state), women and higher education in, 66–67, 70 Virginia Military Institute (VMI): adversative method of education at, 64, 67, 70, 75; men-­only admissions policy, 15, 62– 63, 64–65, 66, 77; mission of, 64, 69, 76; RBG’s characterization of, 73; S ­ calia’s praise for VMI’s history and tradition, 74 Virginia Women’s Institute of Leadership (VWIL), 65, 70 VMI. See United States v. Virginia (referred to as VMI) Voting Rights Act of 1965 (VRA), 17, 109, 111, 112, 113, 114, 116 Warren, Earl, 79 Warren court: and sex discrimination, 33–34 Weinberger v. Wiesenfeld, 57 West, Robin, 78–79 “We the People,” understanding of, 18, 66, 73 Wetlaufer, Gerald: antirhetorical stance of legal discourse, 3, 90, 119; on rhetoric of closure, 13, 82; on rhetoric of the law and democracy, 20–21; and rhetoric of universality, 94; on the traditional voice of the law, 11, 40 White, James Boyd, 2, 36, 94 White v. Crook, 54 white women. See “mothers of the race” rhetoric; women: employment of Whole Women’s Health v. Hellerstedt, 100, 106–7 Wiesenfeld, Stephen, 57 Williams, Joan C., 59, 105 Williams, Wendy, 38 Woloch, Nancy, 21, 127n10 woman-­as-­mother concept: in Bradley’s Bradwell v. Illinois concurring opinion, 7–8; challenged by RBG in the Reed brief, 44; and Gonzales v. Carhart dissent, 93; and Muller v. Oregon opinion,

170 / Index 23–24; and patriarchal bias of the law, 96; RBG confronts, 35, 46, 100 Woman in the Nineteenth Century (Fuller), 50 “woman question”: asked by RBG in Reed brief, 55, 59; Bartlett on, 11, 40, 125n46; and Gonzales v. Carhart dissent, 100; and reproductive rights, 94, 96; and United States v. Virginia opinion, 81 “woman’s place” (phrase), 132n47 women: as beneficiaries of chivalrous concern, 47–48; democratic participation, 30, 33; economic citizenship, 51; employment of, 24; equal citizenship status of, 8, 10, 42–43, 72, 79, 93, 99; exclusion from higher education, 66–67, 70; female body and functions in life, 23, 25–26; generalizations about, 70; and labor-­standards laws, 21, 127n7; lived ­experiences of, as legal argument, 12, 106–7; and overtime work, 21; personhood of, 91–94, 99; and rhetoric of abstraction in the law, 8; “special physical organization” of, 23, 26, 32. See also jury service: and women; “mothers of the race” rhetoric; protective oversight of women: perceived need for; separate

spheres; sex discrimination; workforce participation of women; working-­class women Women and the Law (Kanowitz), 50 women of color: and broadening scope of the “woman question,” 59; employment, 24; and presumed universality of women, 23–24, 35, 95, 100–101; and rhetoric of abstraction, 8; and search for excluded perspectives, 12 women’s rhetorics, history of, 104–5 women’s rights: and antifeminist laws and policies, 13; and traditional voice of the law, 3. See also Seneca Falls Convention women’s rights cases: and the Roberts court, 84–85. See also abortion law cases Women’s Rights Law Reporter, 36 workforce participation of women, 5–6, 14, 34, 52–53, 132n31 working-­class women, 35 workplace harassment cases, 116 Wulf, Mel, 39 Wydra, Elizabeth, 80 Zeigler, Sara L., 99 Zellinger, Julie, 104