In 2012, Justice Ruth Bader Ginsburg made headlines by saying she hoped to see an all-female Supreme Court one day. “When I’m sometimes asked when there will be enough [women justices] and I say, ‘When there are nine,’ people are shocked,” she explained during a legal conference in Colorado. Nobody “ever raised a question” when nine men dominated the court, added the now-82-year-old, one of three women on the bench today.
If Ginsburg got her wish, what might that mean for America? And what if women had taken a majority of seats on the highest court a long time ago? That’s a question raised by dozens of feminist law scholars and lawyers across the United States who are putting together a new book, Feminist Judgments, in which they re-examine 24 of the most significant Supreme Court cases related to gender—dating from the 1800s to the present day—and rewrite the court’s final decisions as if they had been the judges.
More than 100 people applied to help write the book, which will be published sometime next spring, according to Kathryn Stanchi, a law professor at Temple University and one of three editors overseeing the project. All selected applicants agreed to follow an important rule: They could only base their revision on the legal precedent that bound the Supreme Court back when the case was first decided.
Some original rulings had little chance of surviving the rewrite.
- Geduldig v. Aiello: In this 1974 decision, an all-male court upheld a California statute that denied disability benefits to women with pregnancy-related disabilities. Lucinda Finley, a professor at the University of Buffalo who analyzed the case for Feminist Judgments, says she disagreed with Justice Potter Stewart, who had written for the majority that the California law did not constitute sex discrimination because it distinguished not between women and men but between “pregnant women and nonpregnant persons.”
- Harris v. McRae: The court in this 1980 decision upheld the Hyde Amendment, passed by Congress several years earlier to ban the use of federal funds for reimbursements of most abortion services under Medicaid. Leslie Griffin, a professor at the University of Nevada-Las Vegas who reviewed the case for the book, took issue with the ruling: “Animus against poor pregnant women motivated the amendment and cannot survive even rational basis review,” Griffin explains.
Feminist Judgments also re-examines decisions that at the surface level appeared to help women, but that also contained rationale later used to restrict their rights.
- Roe v. Wade: The landmark 1973 ruling on abortion declared unconstitutional a state law that banned abortions except to save a mother’s life. Rutgers School of Law professor Kimberly Mutcherson says that in her rewrite of Justice Harry Blackmun’s majority opinion, she agreed that the Fourteenth Amendment protects a woman’s right to terminate a pregnancy; but she diverged from Blackmun’s opinion by rejecting the trimester approach, in which states can regulate abortion after the first trimester and ban it completely after viability.
- Oncale v. Sundowner: The court found in this 1998 decision that same-sex sexual harassment could be actionable under Title VII of the Civil Rights Act; Ann McGinley, another professor from the University of Nevada who re-examined the case for the book, agreed but went a step further, noting that discrimination based on sexual orientation and gender identity could also be actionable under the law.
- Griswold v. Connecticut: This case came about after the executive director of the Planned Parenthood League of Connecticut was convicted under a state law that made it illegal to offer married people counseling or medical treatment related to birth control. In 1965, the Supreme Court ruled that the law violated sexual privacy rights for married couples. In Feminist Judgments, Laura Rosenbury, dean of the University of Florida’s Levin College of Law, says she “extend[ed] the scope of this liberty interest to all personal relationships between adults—whether married or unmarried and without regard to the adults’ sexual orientation.” She also pointed out that the Connecticut law violated equal protection for women by allowing the sale of condoms but not other types of birth control.
Stanchi says Feminist Judgments was inspired by similar projects in Canada and the United Kingdom, and that legal scholars in Ireland, Australia, and New Zealand are working on their own versions. The goal, she adds, is to demonstrate that it’s not “pie in the sky or outrageous” to protect women’s rights with the law of the land. “You can have feminist jurisprudence with the precedent that we have now,” she says. “We just have to view it differently.”