Feminist Judgments: Rewritten Opinions of the United States Supreme Court

By Luker, Trish | Law & Society Review, December 1, 2017 | Go to article overview

Feminist Judgments: Rewritten Opinions of the United States Supreme Court


Luker, Trish, Law & Society Review


Feminist Judgments: Rewritten Opinions of the United States Supreme Court. By Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford (Eds.). New York: Cambridge University Press, 2016.

This collection of feminist rewritings of U.S. Supreme Court decisions is the most recent contribution to the burgeoning field of feminist judgments projects that have already emerged in a number of common law jurisdictions, including Canada, England/Wales, Northern/Ireland, Australia, and New Zealand. While feminist jurisprudence and feminist activism has led to demonstrable changes in legislative law reform, there is less evidence of the impact of feminism in legal decisionmaking. These projects are motivated by the belief that bringing feminist perspectives to legal decision-making can make a difference to the outcome, as well as the reasoning, treatment of evidence and experience of witnesses. They aim to show that "systemic inequalities are not intrinsic to law, but rather may be rooted in the subjective (and often unconscious) beliefs and assumptions of the decision makers" (5).

In this collection, 25 U.S. Supreme Court decisions have been rewritten to incorporate feminist methods and perspectives. From an initial list of 60 cases, Kathryn Stanchi, Linda Berger, and Bridget Crawford settled on 25 that they describe as "the most significant gender justice cases decided by the court from the passage of the final Civil Rights Amendment in 1870 to the summer of 2015" (3). They called for authors to rewrite each of the decisions from a feminist perspective. A further group of authors have provided short commentaries to contextualize the cases and comment on the approaches taken.

The introduction provides a very useful account of the project's methodology and identifies common feminist themes that emerged in the rewritten decisions. Some authors have rewritten the decision so that they arrive at a different outcome; however, others have used feminist methods to change rhetorical conventions or relied upon alternative legal rules, framed issues differently or presented other rationales for the decision. The authors were not required to write decisions that persuaded the other justices. The editors point out that the volume contains 15 re-imagined majority decisions, four concurring opinions, five dissenting opinions, and one partial concurrence/dissent. The majority opinions are almost equally divided between those that change the ruling and those that changed to reasoning but not the ruling.

As with the other feminist judgments projects, the editors left it to the authors of the rewritten decisions to bring their own vision of what they meant by feminism. However, they identified their own approach to feminism as "a movement and perspective historically grounded in politics, and one that motivates social, legal, and other battles for women's equality ... We believe that 'feminism' is not the province of women only, and we acknowledge and celebrate the multiple, fluid identities contained in the category 'woman'." (3). Feminist methods employed by contributing authors include the use of feminist practical reasoning, narrative feminist method, breaking rhetorical conventions and widening the lens. The editors identify the use of feminist theories: formal equality, anti-subordination/dominance feminism, anti-stereotyping, multi-dimensional theories, such as anti-essentialism and intersectionality, autonomy and agency, all of which they elaborate upon with reference to the rewritten cases.

In the second chapter, "Talking back: From feminist history and theory to feminist legal methods and judgments," Berta Esperanza Hernandez-Truyol provides a valuable framework for the collection by outlining the historical, theoretical, and methodological context of feminist history and theory. She identifies and explains the key waves and branches of U.S. feminism and elaborates on feminist legal methods. There is also a brief history of women in the U. …

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