Justice Ginsburg, Feminism, And Grutter

Today’s liberals have added a new twist to the old adage that politics makes strange bedfellows. Now, even when liberals sleep alone their current opinions toss and turn fitfully in the same bed with their own earlier opinions, just as their opinion today on this matter rests uncomfortably, if at all, next to their opinion today on that matter. I refer, of course, to Justice Ginsburg’s dissenting opinion in Gonzales v. Carhart>, the recent decision upholding the ban on partial birth abortions.

I have had a number of occasions — recently, here, and earlier, here, here, and here — to discuss the schism between “difference” feminists, who believed women needed and deserved protective legislation to shield them from the harshness of competitive capitalism and who thus opposed the Equal Rights Amendment from its introduction in 1923 into the late 20th Century, and “equality” feminists, who believed that equality required treating women the same as men and who thus opposed protective legislation and supported the ERA. With the emergence of the National Organization of Women, the equality feminists routed their old opponents and so thoroughly dominate modern feminism that their former opponents are barely remembered.

Justice Ginsburg, as you all know, embodies — indeed, represents the very essence of — modern equality feminism, a fact that shines through and even dominates her Gonzales v. Carhart dissent. Some examples [most citations omitted]:

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” “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.” Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” 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.


Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

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. Compare, e.g., Muller v. Oregon, 208 U.S.. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“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. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U.S.. 515 , n.12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U.S.. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Justice Ginsburg, in short, rejects “difference” feminism and its embrace of “protective legislation” root and branch. How, then, does she — and if she can’t say, because she’s on the Court, how do her ideological sisters and supporters — square that admirable commitment to equality with her (or their) support for affirmative action policies that award preferences to women based on their gender alone? She, of course, did not take part in the debate over the Michigan Civil Rights Initiative, but my posts cited above (and others) provide in some detail the arguments that feminists and women in powerful positions all offered in opposition to MCRI and in support of continued preferential treatment of women. If Justice Ginsburg disagreed with these views, she’s would be the only prominent feminist in America who did so.

Nor is Justice Ginsburg’s support for today’s version of protective legislation, i.e., preferential treatment for women, the only inconsistency in her opinion. Hans Bader of the Competitive Enterprise Institute notes another in a comment he posted to SCOTUSBLOG (April 18, 12:43PM):

The dissent makes a big deal over the fact that the court supposedly did not give deference to the factual findings of the trial courts, which is generally required under Rule 52 of the Federal Rules of Civil Procedure.

But each of the dissenters in the partial-birth abortion case have refused to give any deference to trial court findings of fact in cases with a different ideological coloration.

For example, they gave no deference to the factual finding of the trial judge in the Grutter v. Bollinger race-based-affirmative action case, in which they voted to uphold a racial quota in admissions.

The trial judge in Grutter found that the University of Michigan Law School was using a racial quota, based on unchallenged evidence that enrollments of minorities remained essentially fixed from year to year at a number that was much higher than a race-neutral consideration of minority applicants’ grades and test scores would have produced.

That factual finding was entitled to deference and to not being reversed except for clear error, under Rule 52 of the Federal Rules of Civil Procedure.

The Supreme Court even granted review on the Rule 52 question, which was an obvious ground for affirming the trial court’s decision.

But the justices never even addressed Rule 52.

Each of the dissenters in the partial-birth abortion case voted to reverse the district court’s decision that the University of Michigan Law School was using a racial quota, without even alleging any clear error on the trial court’s part that would justify refusing to defer to its finding as required by Rule 52.

In addition, recall that in Grutter the University of Michigan argued that the racial preferences it offered to minorities were not discriminatory because they did not injure many whites (or presumably Asians or other non-preferred minorities). As I quoted here, from what was then available on a University of Michigan web site:

Q: Does the University’s consideration of race hurt a white student’s chances of getting into the University?

A: No. The numbers of minority applicants are extremely small compared to the numbers of white students who apply to the University. The Law School, for example has for the last 10 years had an average offer rate of 29 percent for Caucasian applicants, and 26 percent for African American applicants. Out of the fall 2002 entering class of 352, only 21 are African American. Similarly, of the approximately 24,000 applications received each year for admissions to the College of Literature, Science & the Arts, only about 1,800 come from underrepresented minorities. It is not mathematically possible that the small numbers of minority students who apply and are admitted are “displacing” a significant number of white students under any scenario.

And in that same post I quoted from Judge Bernard Friedman’s district court opinion in Grutter, discussing the evidence offered by University of Michigan expert witness Dr. Stephen Raudenbush:

In Dr. Raudenbush’s view, a “race-blind” admissions system would have a “very dramatic,” negative effect on minority admissions but only a slight effect on non-minority admissions, due to the vastly greater number of non-minority applicants.

As I noted, what Michigan argued is that “there is no discrimination because there’s not much of it….”

Justice Ginsburg apparently agreed, because she voted to uphold not only the Michigan law school’s soft and fuzzy preferences in Grutter but also the undergraduate college’s hard, numerical, 20 point racial bonus to preferred minority applicants in Gratz.

Now compare her view on determining the class of discriminatees in her partial birth abortion dissent:

Casey makes clear that, in determining whether any restriction poses an undue burden on a “large fraction” of women, the relevant class is not “all women,” nor “all pregnant women,” nor even all women “seeking abortions.” Rather, a provision restricting access to abortion, “must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction.” Thus the absence of a health exception burdens all women for whom it is relevant — women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk.

For some reason, however, Justice Ginsburg did not believe that an admissions policy discriminating in favor of blacks, Native Americans, and selected Hispanics “must be judged by reference to those [applicants] for whom it is an actual rather than an irrelevant restriction,” i.e., those applicants who would have been admitted had they been members of one of the preferred racial or ethnic groups. (My post linked most recently above provides an estimate, based on Michigan’s own data, of those numbers.)

Finally, two days ago I noted (here) that Maureen Mahoney, Michigan’s lawyer in Grutter, has just asked the Supreme Court to reconsider one of its recent opinions in another case. “Since then,” an article about that case noted, “Justice Samuel A. Alito Jr. has replaced O’Connor, who gave the court majority its crucial fifth vote” against Mahoney’s client. I concluded that

[n]ow any future litigant hoping to reverse Grutter can cite Michigan’s own lawyer in that case for the propriety of asking the Court to reconsider a recent, controversial decision.

Apparently Justice Ginsburg also has no principled objection to overturning recent decisions of which she disapproves. As she noted in her dissent:

Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” …. A decision so at odds with our jurisprudence should not have staying power.

This not even thinly veiled invitation to a future court, “differently composed” from the one on which she is now in the minority, to overturn Gonzales v. Carhart (an invitation endorsed by University of Chicago law professor Cass Sunstein here) can also be cited by any future litigants hoping to overturn Grutter.


Now that I’m well astride my “inconsistency” hobby horse, Professor Cass Sunstein’s OpEd linked above deserves a bit more attention.

In it he celebrates Justice Ginsburg’s jettisoning of Roe v. Wade’s tenuous reliance on the emanations and penumbra of the right to privacy in favor of clear and forthright reliance on the principle of equality.

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, to justify the right to abortion squarely in terms of women’s equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court’s argument was exceedingly weak. The Constitution does not use the word “privacy” anywhere, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit.

And everyone knew, even in 1973, that the debate over abortion had a great deal to do with women’s equality.


In this week’s case, Ginsburg, now the only woman on the court, attempted to re-conceive the foundations of the abortion right, basing it on well-established constitutional principles of equality….

Close followers of Professor Sunstein’s work, or even distant followers (or even non-followers who have encountered him only in various posts here, here, here, here, and here, to pick a few), are entitled to be a bit surprised at this enthusiastic support for Justice Ginsburg’s unsuccessful effort to have the Supreme Court, wielding its power of judicial review, overturn a statute passed by Congress because it conflicts with the “principle of equality.”

They are entitled to be surprised because Prof. Sunstein is perhaps the nation’s foremost advocate of what he calls judicial “minimalism,” judicial restraint that avoids reliance on sweeping, abstract principles to substitute the views of judges for the views of legislatures and even responsible private institutions.

“Judicial minimalism,” Sunstein has stated, “enhances democratic self-government by letting public debates stay in the political realm, rather than the court providing broad, sweeping judgments on contentious issues.” In a similar vein, as I quoted >here, Sunstein praised Justice O’Connor by asserting that minimalists like her “insist that social change should occur through the democratic process, not through the judiciary.” And here I quoted a discussion of Sunstein’s minimalist argument by Ohio Northern University law professor Scott Gerber, who wrote:

In One Case at a Time, published in 1999, Professor Sunstein argues for what he terms “judicial minimalism,” a theory of judicial review that limits the Court to the specific questions posed by a particular case and discourages it from handing down broad rulings with sweeping social consequences. Sunstein insists that the broad questions — whether abortion should be legal, the constitutionality of affirmative action, and so on — should be left for the people to decide through the process of “deliberative democracy.”

These are but a few of many, many examples — indeed, numerous books and articles filled with them — where Sunstein urges courts, especially the un-reviewable Supreme Court, to practice humility, to refrain from expelling contentious issues like abortion and affirmative action from the realms of both democratic politics and private choice by locking them out behind a wall of broad, abstract prinicples.

How odd, then, that now he lavishes such praise on Justice Ginsburg’s invocation of the “well-established constitutional principles of equality” to support her belief that her view — what she wishes were the Court’s view — of a controversial medical procedure should take precedence over the Congress’s contrary view, that the Court’s opinion should overturn the result of “deliberative democracy.”

But then, it is no odder than his view that those “well-established constitutional principles of equality” protect a particular, controversial medical procedure involving the violent destruction of either actual or potential human life from the deliberations of “deliberative democracy” even as those same principles, in his view, smile benignly on public institutions treating individuals differently (some better, some worse) because of their race or ethnicity.

Indeed, it is hard to escape the conclusion that, in his practice if not his theory, Prof. Sunstein’s vaunted judicial minimalism amounts to little more than urging courts not to interfere with the implementation of items on today’s liberal agenda.


Perhaps I should add that “minimalists” don’t always agree. For example, in his April 20 Los Angeles Times OpEd that I’ve just been discussing, Prof. Sunstein was very critical of Roe v. Wade’s reliance on the right to privacy. Let me quote him again:

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court’s argument was exceedingly weak. The Constitution does not use the word “privacy” anywhere, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit.

As I discussed here, however, a prominent advocate of Sunstein’s “minimalism” criticized bad “fundamentalist” conservatives (which he distinguished from the good, “minimalist” conservatives like Justice O’Connor) in a Wall Street Journal OpEd for — you probably guessed — rejecting the right to privacy!

They oppose Roe v. Wade, of course. But they also reject the right of privacy itself, arguing it lacks roots in the Constitution.

What I should have said is that “minimalists” don’t always agree … with themselves, since that Wall Street Journal OpEd was also written by Prof. Sunstein.

Say What? (1)

  1. mikem April 21, 2007 at 4:23 am | | Reply

    “Now, even when liberals sleep alone their current opinions toss and turn fitfully in the same bed with their own earlier opinions, just as their opinion today on this matter rests uncomfortably, if at all, next to their opinion today on that matter”

    My comment doesn’t do justice to your lengthy post, in fact I haven’t finished it yet. But I have to say that this sentence is simply outstanding in smartly and dryly describing the conflicts with which I see my liberal friends deal with increasing frequency. From issues like individual rights (now seen as objectively racist) to deliberately targeting civilians with violence (now seen as legitimate warfare by liberals) to MLK’s “nightmare” of a color blind society, to speech codes against “hate speech” such as calls to end racial and gender discrimination (chuckle). Liberals are constantly having to spin themselves in circles trying to justify that which they once condemned as an affront to civilized peoples. The thing is, with the help of a “sharp, confrontational press with excellent memory” they get away with doing it, politically. While we argue that outright discrimination against certain skin colors is wrong, the need to “dumb down” schools and lower qualifications in a whole slew of fields is now accepted with little grumbling by most of Americans. It’s the price we pay to bring “dignity” to specific minorities. I call it the bigotry of low expectations.

    Chuckle…and as you have noted in a later post, noticing affirmative action at work is now seen as racist.

    I don’t know whether to laugh or cry. I used to lament, if not cry. More lately I laugh, and appreciate my heritage.

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