The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind?
Rose, Leslie M., Duke Journal of Gender Law & Policy
[T]he law lives through language and we must be very careful about the language we use. (1)
Law students learn the law and the language of the law from casebooks--casebooks filled with Supreme Court opinions. So, for example, when students begin Constitutional Law they will read Chief Justice John Marshall's influential 1803 opinion in Marbury v. Madison and learn that:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.... [The] government of the United States has been emphatically termed a government of laws, and not of men. (2)
Continuing through the Constitutional Law text about 500 pages, law students will read Lochner v. New York, written 100 years after Marbury, and discover that:
In every case that comes before this court, therefore, [the] question necessarily arises: Is this a fair, reasonable and appropriate exercise of the [police power], or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? (3)
Jump ahead another century to Melendez-Diaz v. Massachusetts, (4) an important case from the 2008 Supreme Court Term, (5) likely to appear in future casebooks. Here, students will be confronted with a description of a constitutional right framed in language that excludes women:
The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so.... It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. [Citations omitted.] There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. (6)
What students learn from these opinions may not be limited to what the authors intended. They will learn that "male" is the norm, (7) even in the world of law, and they might wonder if Marbury and Lochner were even intended to apply to women, since both cases predate female suffrage. (8) Marbury and Lochner reflect their historical time in their use of masculine pronouns to refer to all people. However, today, when clarity and precision are paramount in legal writing, and more than half of today's law students are women, the Supreme Court should be embracing gender-neutral language.
Most modern legal writing texts and style manuals recommend that writers use gender-neutral language. (9) Gender-neutral language is achieved by avoiding the use of "gendered generics" (male or female nouns and pronouns used to refer to both men and women). For example, gender neutrality could be achieved by referring to "Members of Congress," rather than "Congressmen," and by changing a few words in the previous quotation from Melendez-Diaz:
"The defendant always has [the] burden of raising a Confrontation Clause objection; statutes simply govern the time within which the [defendant] must do SO." (10)
As this article demonstrates, most members of the United States Supreme Court still use male-gendered generics regularly. This practice freezes the Court in the non-inclusive and imprecise writing style of Marbury and Lochner and perpetuates a style of communication that no longer suits the needs of modern practice.
Most of the advice on gender-neutral writing is directed at lawyers and law students; it emphasizes that this technique is part of good advocacy and effective communication with the reader--usually a judge. (11) This advice applies equally to judges. (12) Despite these recommendations, the practice is not universal among legal writers. …