For the Balkinization symposium on Julie Suk, After Misogyny: How the Law Fails Women and What to Do about It (University of California Press, 2023).
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.