Friday, August 08, 2014

Liptak and Ginsburg on Kennedy: Sexism Versus Homophobia? Or Formalism and Abortion Ambivalence?

by Michael Dorf

Earlier this week, a New York Times article by Adam Liptak used some recent remarks by Justice Ginsburg as an occasion to ask the question whether the current Supreme Court is more sympathetic to gay rights claims than to women's rights claims. Because four Justices on the current Court (Roberts, Scalia, Thomas, and Alito) tend to vote against both gay rights and women's rights, while another four (Ginsburg, Breyer, Sotomayor, and Kagan) tend to vote for both gay rights and women's rights, the real focus of the article is Justice Kennedy, who joins (indeed, leads) the liberals in voting for gay rights -- as the author of the majority opinions in Romer v. Evans, Lawrence v. Texas, and United States v. Windsor) -- while joining the conservatives in cases that work against women's rights -- most recently in Burwell v. Hobby Lobby, but also in Ledbetter v. GoodyearGonzales v. Carhart (the federal Partial Birth Abortion Ban Act case), and some other cases.

I spoke with Liptak on background before he wrote the article but at my request he didn't quote me. As a former law clerk to Justice Kennedy, I did not want to be quoted in a brief snippet that might be taken out of context by some readers as either expressing agreement with cases I think wrongly decided or as vindicating the tacit suggestion that Justice Kennedy is a sexist.

Even so, the article does include the one point I tried to emphasize in resisting the claim that Justice Kennedy is more receptive to gay rights claims than to women's rights claims. I suggested that the pattern was due to the fact that formal legal discrimination against women was mostly ruled invalid in the 1970s, whereas the gay rights cases coming before the Court in the last two decades involved formal discrimination on the basis of sexual orientation. And indeed, in the rare post-1970s cases when women present formal equality claims, Justice Kennedy has been receptive (as illustrated by his joining Justice Ginsburg's majority opinion in United States v. Virginia).

Put differently, Justice Kennedy believes in formal equality -- with respect to sex, sexual orientation, and, for that matter, race -- but he is only seeing formal equality claims with respect to sexual orientation, not sex. (He is sympathetic to formal equality claims of race discrimination, but those tend to be made by white plaintiffs challenging race-based affirmative action.) Liptak quotes my former colleague and law school classmate Suzanne Goldberg for more or less this point. She says that "the Court’s recent gay rights decisions seem to be catching up with women’s rights cases of earlier decades."

Nevertheless, Goldberg goes on to add that "we live in a society that now seems more receptive to gay rights than women’s rights generally," and Liptak offers some additional evidence that this appearance from the Court--and from Justice Kennedy in particular--is not simply a product of the different kinds of cases. In particular, he offers two sorts of evidence for this view of Justice Kennedy: personal and rhetorical. I think the personal evidence is highly speculative and the rhetorical evidence is real, but much less revealing than the article suggests.

Stripped of references to Justice Kennedy's opinions, here is the entirety of the personal evidence that Justice Kennedy lives in the present with respect to gay people but in the world of Ozzie and Harriet with respect to women. Liptak writes:
A Sacramento lawyer and lobbyist who still lived in the house he grew up in when President Ronald Reagan nominated him to the Supreme Court in 1987, Justice Kennedy is the product of a placid middle-class existence in which most women stayed within traditional roles.   . . . But Justice Kennedy, 78, has long had gay friends, and his legal philosophy is characterized by an expansive commitment to individual liberty.
To my mind, this is a puzzle posing as an explanation. It is pretty far-fetched to think that daily life in the capital of California in the 1960s and 1970s was untouched by the women's rights movement, so one must hypothesize further that Justice Kennedy existed in a bubble within the larger culture. But why was he willing to break out of his bubble to form friendships with gay people, but unwilling to break out of the bubble to see women in non-traditional roles?

The rhetorical evidence is somewhat more solid but it rests almost entirely on the portion of Justice Kennedy's majority opinion in Gonzales v. Carhart in which he credits "abortion-regret syndrome" as a justification for the government ban on so-called "partial-birth" abortion. Liptak quotes Justice Ginsburg's dissent in that case, in which she says that the majority opinion reflects "ancient notions about women’s place in the family.” He also cites a 2008 South Carolina Law Review article by David Cohen. Much of that paper crunches data to show (unsurprisingly) that Justice Kennedy was somewhat less sympathetic to women's equality claims than Justice O'Connor was. Cohen also makes an interesting argument that Justice Kennedy was least likely to vote in favor of women's equality when the particular claim involved women's relations with children, and more likely to uphold such claims for rights in the workplace or other public settings. But his only direct evidence of an archaic attitude is Justice Kennedy's language in Gonzales v. Carhart.

I am also troubled by the "abortion-regret" passage in Gonzales v. Carhart, but mostly for different reasons: 1) The passage admits that there is really no evidence that this is a real phenomenon but credits it anyway; and 2) even if women do come to regret certain categories of abortion because they were not properly informed about what those abortions involved, that would justify a full disclosure provision, not a ban. As for the rhetoric of the passage, I find it less indicative of sexism for three reasons.

First, like many Americans, Justice Kennedy is deeply ambivalent about abortion rights, especially with respect to late-term abortions. This comes through pretty clearly in his graphic description of the banned abortion procedure in Gonzales v. Carhart. Again, I find the underlying argument unpersuasive: as noted in the dissents, the methods of abortion that are permitted under the Act are equally grisly and no more protective of fetuses. But it's pretty clear that whatever archaic attitudes about women are expressed in the majority opinion in Carhart are mostly opportunistic; the case is less hostile to women's rights than it is indifferent to them.

Second, I'm not so sure that the Gonzales v. Carhart language really does trade in stereotypes. Justice Kennedy says: "Respect for human life finds an ultimate expression in the bond of love the mother has for her child." And then a couple of paragraphs later: "a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

That language combines fetus-focused concern about the banned procedure with a certain idealization of motherhood. It's true that it's invoked in the service of upholding an abortion restriction, but Justice Kennedy (in the joint opinion with Justices O'Connor and Souter) in Planned Parenthood v. Casey makes similar-sounding statements in support of reaffirming an abortion right:
The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
So yes, Justice Kennedy--on his own and in combination with other Justices--tends to write about women in abortion cases in romantic language, but doing so does not clearly correlate with his voting against abortion rights, much less with voting against women's rights more broadly.

Third, even if one reads Gonzales v. Carhart as trading in archaic stereotypes for the purpose of rejecting a sex equality claim, it is, after all, only one case. That fact is obscured in the Liptak article by the quotation from the Ginsburg dissent in Carhart without mentioning the case by name, by invoking the Cohen article, which cites only Carhart for its rhetorical points, and by then discussing Carhart directly as the "most memorable" and "most troubling" example of an ostensibly broader phenomenon. But there is no evidence of a broader phenomenon. There is just the one case, triple-counted in the Liptak article.

Finally, I don't want to be read as reflexively agreeing with the Justice for whom I clerked. I disagree with a great many votes that Justice Kennedy casts, in cases that involve women's rights as well as other kinds of cases, and I don't hesitate to criticize those votes. But I don't see much evidence in his opinions or elsewhere that he is driven by sex-role stereotypes.