Victoria Nourse
 
For years, good liberal men have debated the question of women’s rights as a question of constitutional text and, thus, of law itself.   Some men (including this blog’s author Jack Balkin) have argued for women’s rights, but many more good liberal men, have argued against women’s rights.   Very few men actually engage with feminist theory, an academic sidelight, increasingly arcane in a world where women are considered equal in theory, but remain unequal in fact.   Perhaps the Supreme Court’s decision in Dobbs, overturning Roe v. Wade, will finally wake up a few male and female law professors to the central importance of women in the “new” constitutional regime of 2023. 
 
In my own view, no one should see the Dobbs decision as solely about abortion, but about Professor Suk’s topic:  misogyny.  Originalism was a theory inspired by the hope to overturn Roe.  It was always about women, and the absence of women in law, as I explained in Slate, some time ago.   That legal theory—originalism—is now mired in violence, even if it never aspired to such infamy.  Originalism justified the violence of a President claiming “all executive power,” justified an attack on the Capitol giving the Vice President “all” power to change a presidential election, and not incidentally, has now justified the state imposition of forced pregnancy in Dobbs (even as academic proponents of originalism seek to distance themselves from the Court’s originalism).  Is it really a coincidence that the former President is under scrutiny for rape, or that two originalist Justices on the Court are alleged to have committed harassment and assault?  Misogyny, in various forms, has always been part of anti-democratic, authoritarian white supremacy movements in the United States, and it remains the silent backdrop of the Court’s most prominent legal theory.
 
All of that goes to explain why Professor Julie Suk’s contribution to this debate, After Misogyny, is exceedingly important in a world where young male and female law students are afraid for their lives but there are few feminists teaching at law schools.  Typically, younger scholars like Professor Suk herself or my soon-to-be colleague Professor Michele Goodwin are brought in for temporary stints at the top schools, to disguise the fact that those law schools see feminism as unimportant.  Why?  It is assumed, by male and female law professors alike, that there is equality in the law for women.  But, as Professor Suk explains, with a wide array of facts and figures, legal equality for women is a fiction.  It is certainly not true for the most vulnerable women, but it is also not true for F22-pilots who are raped but who cannot sue their attackers because of arcane immunity doctrines, or the black Harvard law students whose complaints are ignored.  As Professor Suk explains, the law has never really provided redress for women’s injuries because women’s injuries were not recognized, not seen, as injuries, but instead as willing participations, or worse, whining, in a world of unseen male entitlement.    
 
Professor Suk makes a major theoretical contribution by shifting the lens from debates about gender animus to questions of overentitlement and abuse of rights.   Her lens deserves serious amplification—hence the title of my contribution.   But before anyone gets there, there remains the inevitable hurdle of disbelief that misogyny is relevant to the law, once there are female Deans or an occasional woman allowed to teach high-status constitutional law.  The average law professor or lawyer will ask:  surely there are laws, after all this time, so why bother with feminist theory? 

One only needs to read the newspapers to know the answer to that question:  How many sexual assaults did it take before Harvey Weinstein was brought to justice in the criminal justice system?   Why didn’t his lawyer tell him he would lose his company if he continued in these exploits (precisely because there is no law, including tort law, that would yield such a result because the Supreme Court struck down the only federal law that might have accomplished it).    How many black women have to die in maternity wards for the legal and medical establishments to take action to stop “policing the womb,” as Michele Goodwin writes.  Or take a very simple case:  everyone was worried about police abuse because of George Floyd’s death, and rightly so, but did it ever occur to men to think that when a police officer commits sexual assault, as happens more often than you would think, a classic 14^th amendment violation by a state actor, state and federal immunity applies?  If nothing else, the #MeToo movement should have awakened all good people to the ways in which society has imbibed norms of male privilege.   Women have been left to a lawless shaming system of hashtags precisely because there is no adequate law for them to invoke.
 
Professor Suk wants to get away from this focus on violence, although she recognizes it still exists.  For the classic liberal, Professor Suk provides an important, readable, account of how the law of equal protection has become a tool of misogyny.  My plea:  Well-meaning constitutionalists must stop teaching the law as if Ruth Bader Ginsburg triumphed.  Teaching the “gender-triumph” story (oh, my “intermediate” scrutiny), after Professor Suk’s intervention, should now be less attractive.  She continues to praise Justice Ginsburg for outsized contributions, when the truth is that Congress actually provided most of women’s real rights (think the 1964 Civil Rights Act etc, Equal Pay, Title IX, Pregnancy Discrimination Act, Family and Medical Leave Act.).   Importantly, however, Professor Suk shows how the gender-neutral vision of equal protection has allowed the men’s rights movement to sue to restore misogyny’s incidents and privileges.   I would go further to suggest, as Professor Suk knows, that the “gender triumph” story is a legacy of the 1970s and has little to do with today’s constitutional law.  It does little to tell the story of the Supreme Court for the past twenty years, which is a repeated story of hostility to women.   Since 2000, Congress in United States v. Morrison and the states in Castle Rock v. Gonzales have lost power to enforce laws protecting women, at the hands of the Supreme Court.  Dobbs is simply the highly salient result of a trend long simmering.

Professor Suk has a more subtle, and important point, to make about feminist theory.  She wants to shift away from the old “animus” framework toward one that recognizes “overentitlement” and “under-compensation.”  This is an important theoretical move.  Misogyny, she writes, is “most pervasive” when it involves no hatred or physical violence, something which is no doubt true.    She asks us to reimagine the abortion debate as one about society’s unjust enrichment.  Borrowing from events abroad in Ireland and Germany, she looks to a much-overlooked concept of the abuse of right—which should be invoked far beyond women in my humble view.   When one bans abortion, one causes the unjust enrichment of society (and all women and men) at the expense of some women, who are uncompensated for the burden of child birth, raising, and primary caregivers.    Interestingly, and consistent with Judge Guido Calabresi’s recent Ryan lecture at Georgetown, which emphasized the ways in which abortions bans failed to internalize the costs on those who impose such bans, Professor Suk  argues that we should experiment with the Fifth Amendment as a challenge to abortion as a coerced and physical occupation of a woman’s body.

Ultimately, Professor Suk wants institutional reforms that reset baselines of entitlement, including gender parity rules in democracy and other powerful institutions like corporate boards.   She offers timely examples from abroad, and experiments at home.   These are important contributions.   And, given her reframing of the debate as one of over-compensation and under-entitlement, they seem sound.  Unfortunately, we remain at a moment when these kinds of reforms are easily struck down by the current Court and blocked by a Congress that has come to see the word “quota” as an anti-American swear word, as Professor Suk knows.   My only complaint with this, as noted above, is that before anyone is willing to accept such change, they must see that the law continues to fail.  And, for that, students in constitutional law and elsewhere must be taught something other than the triumphalist vision of female equality that too often goes on in constitutional law classrooms.
 
My hope is that the Supreme Court’s return to 1868 in Dobbs will force good men and women to “begin anew,” as Hannah Arendt put it.   It is no coincidence that, recently, a Judge in Texas sought to end the least dangerous and violent way to terminate a pregnancy—the abortion pill—by returning the law to the 1870s Comstock Act.  It is no coincidence that the Fifth Circuit found that there is no “historical analogue” to restrictions on violent domestic violence offenders, so they have the right to have a gun to go on shooting sprees, literally encouraging violent offenders. 
 
Originalism, as I said at the start, has proven to be violent in fact even if that escaped the attention of its intellectual forebears.  We should have known this; after all the first great triumph of originalism was the embrace of that symbol of male power, the gun.  We should have known this because the legal point of originalism is to return the world to the common law of the 19^th century.  That is a much more violent world than our own, and it is a world in which women serve, and men rule.   Professor Suk’s structural reforms are a vision for the future, but no one should forget the urgency of the now, or the not-so-subtle eradication of women’s citizenship by the Supreme Court’s return to 1868, a day and age when women could not vote and when their existence dissolved into that of men.   Professor Suk is a subtle thinker, well versed in comparative constitutional law, but there is nothing subtle about today’s misogyny.
 
Victoria Nourse is Ralph V. Whitworth Professor of Law at Georgetown University Law Center. You can reach her by e-mail at Victoria.Nourse@law.georgetown.edu.