Monday, July 07, 2014
Male Justices Don't Vote Based On Their Gender
It probably would not have occurred to the Founding generation (although Abigail Adams might have thought of it) that some day there would be women serving as judges and even as Justices of the Supreme Court. When Sandra Day O’Connor became the first of her gender to be named to the court in 1981, America had a lively debate over whether a woman would vote differently because of her different life experience. She insisted at the time, and later, too, that it did not shape her view of the law. Some other women judges have disagreed.
There was a tinge of gender stereotyping in that debate, as it is not at all common to analyze how male Justices vote as men. The discussion has come up again each time a new female member joined the Supreme Court, and then, too, some observers have wondered anew what difference it would make.
[O]ne can read the dissenting opinion [in granting an injunction to Wheaton College], written by Justice Sonia Sotomayor, in the most intensive search for gender motivation, and it is simply not there. Indeed, the complaint of the dissenters was that the majority had abused the court’s judicial power, and had undertaken to invent new legal mechanisms on its own to support its desired outcome, to expand religious objections to public law. That is a gender-neutral dispute, and it goes to the heart of how a judge views the proper role of courts.
One can, of course, assume that the women dissenters were voting their gender, because only they, among the nine Justices, were in a class with the workers whose access to birth control was at issue. But that kind of assumption is precisely what gender stereotyping has always been about.
And Judge STFU:
In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.
To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.
No, no, no, male decisions are objective, chicks are all about empathy and emotion. Everybody knows that.
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"One can, of course, assume that the women dissenters were voting their gender, because only they, among the nine Justices, were in a class with the workers whose access to birth control was at issue. But that kind of assumption is precisely what gender stereotyping has always been about."
Um, no; one can assume a group of elderly male Catholics find sex "icky" and "birth control" an uncomfortable subject for due consideration and also see no reason not to make women face the consequences of sexual congress (with little regard given to medical reasons for contraception other than consequence-free sex), and that this predisposition guides their determination to fashion an outcome favorable to their particular (and peculiar) religious conviction (more peculiar because the Green family is wrong, the contraceptives complained of are not abortifacients, and the determination of that is not a theological matter (Alito's argument on that point is flat out weird, even for Opus Dei; and because unlike the Catholics on the bench, the Greens have no reason to belief as a matter of their faith that birth control is improper, nor, in general, do they).
There's a lot going on in Burwell, most of it extra-legal and wholly inappropriate, and to add to the analysis the idea that five elderly men ruled on a matter very important to women without giving any consideration to that fact (the Green's religious ideas overrule those of their employees because the Greens are the employers; how paternalistic is that?) is not to engage in some kind of gender stereotyping.
Nice try at building a straw man, though.
Posted by: Rmj | Jul 7, 2014 9:50:57 PM
One can, of course, assume that the women dissenters were voting their gender, because only they, among the nine Justices, were in a class with the workers whose access to birth control was at issue.
Or as my wife would put it, "because only they, among the nine justices, have any clue as to what their decision might mean in the real world." Of course, my wife's husband (namely me) is a person who, when all the brouhaha over Sotomayor's "wise Latina" remarks occurred, felt that a "wise Latina" is 100% EXACTLY what SCOTUS needs (not that Sotomayor is always 100% in touch with everyday reality either, but at least she tries and views being in touch with reality and making wise decisions based on that understanding as something that can and should at least be her "brand").
As I, with some background in computers and AI am wont to point out -- if making judicial decisions is something completely divorced from human experience, how come we don't save a ton of money on judges' salaries, pensions, indirect costs, etc. by replacing judges with computers? We have human judges because human experience is important in making judicial decisions. And those who complained about "women justices judging as women and not being objective" are missing the point: 50% or so of humans are women and hence women's experiences matter in making judicial decisions!
Posted by: DAS | Jul 8, 2014 1:20:57 PM