Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Rhetoric and the Law

RUTH BADER GINSBURG’S LEGACY OF DISSENT

RHETORIC, LAW, AND THE HUMANITIES

SERIES EDITORS

Clarke Rountree

EDITORIAL ADVISORY BOARD

A. Cheree Carlson

Kirsten K. Davis

Trevor Parry-Giles

Marouf Hasian Jr.

William Lewis

Francis J. Mootz III

Sean Patrick O’Rourke

Eileen A. Scallen

Edward Schiappa

Omar Swartz

Colin Starger

Gerald B. Wetlaufer

David Zarefsky

RUTH BADER GINSBURG’S LEGACY OF DISSENT

Feminist Rhetoric and the Law

KATIE L. GIBSON

The University of Alabama Press

Tuscaloosa

The University of Alabama Press

Tuscaloosa, Alabama 35487-0380

uapress.ua.edu

Copyright © 2018 by the University of Alabama Press

All rights reserved.

Inquiries about reproducing material from this work should be addressed to the University of Alabama Press.

Chapter 4 is derived in part from a previously published article: In Defense of Women’s Rights: A Rhetorical Analysis of Judicial Dissent, Women’s Studies in Communication 35 (2012): 123–37.

Typeface: Caslon and Miller

Cover image: Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States; photo by Steve Petteway, Collection of the Supreme Court of the United States

Cover design: Michele Myatt Quinn

Library of Congress Cataloging-in-Publication Data

Names: Gibson, Katie L. (Katie Lorayne), 1976– author.

Title: Ruth Bader Ginsburg's legacy of dissent : feminist rhetoric and the law / Katie L. Gibson.

Description: Tuscaloosa : The University of Alabama Press, 2018. | Series: Rhetoric, law, and the humanities | Includes bibliographical references and index. Identifiers: LCCN 2017035686| ISBN 9780817319786 (cloth) | ISBN 9780817391751 (e book)

Subjects: LCSH: Ginsburg, Ruth Bader. | Women judges—United States—Biography. | Judges—Untied States—Biography. | Dissenting opinions—United States. | Feminist jurisprudence—United States—History.| Women's rights—United States—History. | Feminist theory—History.

Classification: LCC KF8745.G56 G53 2018 | DDC 347.73/2634—dc23

LC record available at https://lccn.loc.gov/2017035686

Dedicated with love to Nate, Owen, and Grayson.

Contents

Introduction. The Patriarchal Voice of the Law:

Generic Scripts and Bradwell v. Illinois

1. Judicial Rhetoric and Women’s Place:

The Legal Precedent of Separate Spheres

2. Advancing a Language of Feminist Jurisprudence:

Reed v. Reed and Ruth Bader Ginsburg’s Grandparent Brief

3. Shifting the Boundaries of Equal Protection:

Justice Ginsburg’s Defense of Progressive Constitutionalism in United States v. Virginia

4. Confronting the Boundaries of Abortion Jurisprudence:

Justice Ginsburg’s Equality Rationale in Gonzales v. Carhart

5. Ruth Bader Ginsburg’s Legacy of Dissent:

Feminist Contributions and Democratic Promise

Notes

Bibliography

Index

Introduction

The Patriarchal Voice of the Law

Generic Scripts and Bradwell v. Illinois

Ruth Bader Ginsburg has reshaped the language of American jurisprudence. Since the early 1970s, Ginsburg has led the most profound attack on sexist law in the history of the United States.¹ Her legal advocacy has confronted the patriarchal voice of the law and pointedly challenged an entrenched genre of legal language that silences the voices and experiences of American women and undermines their equal citizenship stature. On the United States Supreme Court, Justice Ginsburg continues to challenge the traditional scripts of legal discourse to insist on a progressive vision of the Constitution and to demand a more inclusive and democratic law. Ruth Bader Ginsburg’s lifelong effort to reshape the language of American law has had profound consequences—she has shifted the rhetorical boundaries of jurisprudence on a wide range of fundamental issues, from equal protection to reproductive rights. Put simply, Nina Totenberg recently remarked, she changed the way the world is for American women.² Indeed, many court observers consider her impact on American law to be greater than that of any living judge.³

Ruth Bader Ginsburg’s remarkable legal legacy rests upon her consistent and direct challenge to the law’s traditional voice. It is surprising, then, that Ginsburg’s voice of dissent has only recently gained appreciation from a broader American public. In 2013, a Tumblr likened Justice Ginsburg to the rapper Notorious B. I. G. and inspired a "Notorious RBG meme that transformed the eighty-year-old justice into a popular culture icon. The meme appeared on T-shirts, coffee mugs, and bumper stickers alongside punchy phrases like Fear the Frill and Can’t Spell Truth without Ruth. In response to Ginsburg’s rising popularity and new status as a badass gangsta Internet meme, Rebecca Traister designated RBG the most popular woman on the internet and cheered: Now, mercifully—finally—young people are creating a new vocabulary, a library of visual and aural iconography that warmly appreciates female power in not just its nubile, but also its senior, its brainy, its furious, and its professionally brawny forms."⁴ While a growing number of admirers are championing Justice Ginsburg’s female power and celebrating her voice of dissent today, Ruth Bader Ginsburg’s rhetorical legacy reveals that she has long articulated a sharp and strategic voice of judicial dissent.

This book looks deeply at Ruth Bader Ginsburg’s rhetoric to argue that one of her great contributions to American law is that she has boldly challenged the traditional boundaries of legal language to make way for a feminist jurisprudence and more democratic rule of law. Ruth Bader Ginsburg stands as an incredibly important figure in late-twentieth and early-twenty-first-century feminism. The following chapters offer a more complete understanding of her feminist legacy by detailing the unique contributions of her legal rhetoric. As Richard Rorty explains, A talent for speaking differently, rather than for arguing well, is the chief instrument of social change.⁵ Ruth Bader Ginsburg’s talent for speaking differently has revolutionized American law. Her rhetorical legacy has shifted the discursive borders of women’s citizenship and promised a more democratic law—for all those long excluded by the traditional scripts of legal discourse.

Legal Language as Genre: The Rhetorical Commitments of the Law

The voice with which the law speaks invites us to see the world in particular ways and constitutes rhetorical boundaries for imagining American citizenship. Years ago, James Boyd White urged legal scholars to investigate the law as a constitutive rhetoric.⁶ According to White, the traditional focus of legal criticism looked only to the material results of legal discourse—to the actual redistribution of assets, including property, money, and rights, that result from legal decisions. White urged instead a rhetorical focus that turned the attention of legal criticism back to the language of jurisprudence to investigate the nature of the community constituted in legal discourse.⁷ White asked: What voices does the law allow to be heard, what relations does it establish among them? With what voice, or voices, does the law itself speak? These are the questions with which rhetorical criticism would begin.⁸ This rhetorical study begins with similar questions. With each ruling it hands down, the court constitutes a landscape of sanctioned argument—a reservoir of rhetorical forms—that invites a particular way of seeing our world and imagining the scope of our constitutional community. The stories told, the metaphors employed, and the characterizations advanced through legal discourse announce rhetorical boundaries that shape the reasoning and imagination of citizens, legislators, and future courts when negotiating the rights and responsibilities of American citizenship. These rhetorical boundaries have been deeply problematic for advocates of women’s rights throughout US history. As Lucinda Finley explains, Since [legal] language has been crafted primarily by white men, the way it frames issues, the way it defines problems, and the speakers and speech it credits, does not readily include women.⁹ This is true; the community constituted through the language of the law—the voices heard, the experiences valued, and the perspectives affirmed—has long excluded many American citizens.

In her fight to enlarge the rhetorical boundaries of legal imagination, Ruth Bader Ginsburg has challenged the traditional voice of the law and defied the generic norms of legal discourse. Although the genre of legal rhetoric has been described in different ways, it is clear that the voice of the law is overwhelmingly shaped by linguistic commitments to objectivity, abstraction, and closure.¹⁰ These commitments work together in legal discourse to frame the law as antirhetorical—as a paradigm of closed discourse that operates independent of and above the politics of the citizenry. As Gerald Wetlaufer argues, Law is rhetoric but the particular rhetoric embraced by the law operates through the systematic denial that it is rhetoric.¹¹ Other scholars have described the the voice of the law similarly. Robert Ferguson, for example, describes the genre of judicial opinion as shaped by four distinguishing features: a monologic voice, an interrogative mode, a declarative tone, and a rhetoric of inevitability.¹² Robert Rubinson also argues that a monologic voice is characteristic of legal discourse. It is a rhetoric of closure, Rubinson tells us, consistently decontextualized, authoritarian, finalized, and dismissive of alternative perspectives.¹³ Wetlaufer echoes the observations of Ferguson and Rubinson and describes the rhetoric of the law as a set of linked rhetorical commitments: These include commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts.¹⁴ According to Wetlaufer, the discursive norms of legal discourse follow from an antirhetorical stance that is deeply entrenched in the discipline of the law.

It is important to emphasize that rhetorical genres exist not simply as repetitive forms but also as social action, aimed toward particular goals that arise from recurring circumstances.¹⁵ As Karlyn Kohrs Campbell and Kathleen Hall Jamieson explain, Genres often exist in dynamic responsiveness to situational demands.¹⁶ In this way, the systematic denial that defines the form and the function of legal voice—the law’s rhetorical posture of certainty and objectivity—may be understood as a response to the unique constraints that legal practitioners face. For Ferguson, the monologic voice is the very type of the judiciary’s nonmajoritarian status in a democratic republic. Unelected and largely unaccountable, the speaking judge must always respond to the fundamental inconsistency of imposing a separate authority on the democratic process.¹⁷ Read through this lens, the monologic voice of objectivity, abstraction, and closure may be understood as sharply strategic. A conceit of autonomy and a posture of certainty shield the normative predilections of judges and legitimize the law in the face of countermajoritarian difficulty.

It is not surprising that feminist scholars have been critical of the traditional voice of the law. The generic scripts that deny that the law is rhetoric also serve to hide the biases of legal language and exclude the perspectives and experiences of a wide multitude of American citizens, including women. As Zillah Eisenstein explains, The language of the law silences women.¹⁸ The legal conventions of objectivity, abstraction, and closure are potent silencing scripts and have often served to protect and privilege a masculinist perspective by framing patriarchal logics as natural and neutral. Finley describes how the norms of legal language prop up a masculinist perspective. She writes: Legal language commands: abstract a situation from historical, social, and political context; be ‘objective’ and avoid the lens of nonmale experience; invoke universal principles such as ‘equality’ and ‘free choice’; speak with the voice of dispassionate reason; be simple, direct, and certain; avoid the complexity of varying, interacting perspectives and overlapping multi-textured explanations; and most of all, tell it and see it ‘like a man’—put it in terms that relate to men and to which men can relate.¹⁹

Driven by the rhetorical commitments to objectivity, abstraction, and closure, the traditional voice of the law has often served to defend an ideology of conservative constitutionalism and to protect the patriarchal status quo. Of course, these discursive commitments have also functioned to bolster a legal vantage point of interlocking privilege, propping up other logics of domination, like whiteness and heteronormativity, to narrow the scope of our constitutional community.

The patriarchal bias that is sheltered within the traditional voice of the law is plainly observed in the 1873 case of Bradwell v. Illinois—the first women’s rights case to come before the United States Supreme Court.²⁰ A close look at the rhetoric of Bradwell v. Illinois illustrates how the generic scripts of legal discourse prove deeply problematic for advocates of women’s rights and underscores the exclusionary dynamics of the law’s voice. An examination of Bradwell v. Illinois also makes plain what Ruth Bader Ginsburg was up against as she set out to constitutionalize the equal citizenship of American women and shift the rhetorical boundaries of the law.

Bradwell v. Illinois: Generic Scripts of Objectivity, Abstraction, and Closure

The first women’s rights case decided by the United States Supreme Court challenged a sex classification as a violation of the Fourteenth Amendment for the first time in US history.²¹ Myra Bradwell was a dedicated activist for women’s equality, and her life pushed at the boundaries of what was socially acceptable for women in the nineteenth century. She founded the Chicago Legal News, the first weekly law journal in the Midwest, and she used the pages of her successful paper to argue for women’s equal property and employment rights, to push for legal reforms, and to urge state officials to end discrimination against women. In 1869, Myra Bradwell applied for a state license to practice law in Illinois—three months after Arabella Mansfield became the first woman to be granted a state law license by Iowa. Bradwell passed the Illinois bar exam, but the state of Illinois refused to issue her a license to practice law because she was a woman: Illinois state law prohibited all women from practicing law. The Illinois Supreme Court upheld the state’s objection to Myra Bradwell’s licensure. Speaking on behalf of the Illinois Supreme Court, Chief Justice Charles B. Lawrence trumpeted a masculinist bias when he flatly reasoned: God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as almost an axiomatic truth.²²

Undeterred, Myra Bradwell took her case to the United States Supreme Court. Gwen Hoerr Jordan argues that Bradwell was one of the first women’s rights activists to immediately [perceive] the potential of the new Fourteenth Amendment to emancipate women.²³ Indeed, Myra Bradwell insisted that the Privileges and Immunities Clause of the Fourteenth Amendment barred sex discrimination in employment and protected her eligibility, even as a married woman, to practice law in the state of Illinois. Justice Samuel Miller wrote the opinion for the United States Supreme Court and denied Bradwell’s claim on the Fourteenth Amendment, arguing that the new amendment did not protect anyone’s right to practice law. Justice Miller cited a decision the court had handed down just two days earlier, in the Slaughterhouse Cases, which declared that the right to work in one’s chosen profession was not protected under the Fourteenth Amendment’s Privileges and Immunities Clause.²⁴

Although the court’s majority opinion evaded the issue of sex discrimination, Justice Joseph P. Bradley seized the opportunity to write a concurring opinion that went far beyond the constitutional issues of the case to sanction a logic of separate spheres and advance an uncompromising view of American women as second-class citizens. The ideology of separate spheres operated upon assumptions of racial, economic, and heterosexual privilege that conflated womanhood with motherhood and championed a white domestic ideal. Despite the exclusionary nature of this logic, Justice Bradley defended the doctrine of separate spheres as a universal ideal and anchored the doctrine to the court’s jurisprudence of gender equality. Bradwell was the first of a long line of cases that would deny women protection against sex discrimination. A look at Justice Bradley’s concurring opinion demonstrates how the rhetorical commitments that have traditionally governed the language of the law—objectivity, abstraction, and closure—easily upheld the logics of separate spheres to undermine the full and equal citizenship of American women in the first women’s rights case to come before the United States Supreme Court.

Justice Bradley’s opinion announced a commitment to objectivity at every turn. He proclaimed that the court’s decision to uphold Illinois’s exclusion of women from the legal profession simply followed the laws of nature, submitted to the predeterminations of destiny, and respected the rules of God. Bradley argued that the fundamental privileges and immunities of citizenship have never guaranteed women the right to participate in every profession of civil life. On the contrary, he asserted, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.²⁵ Bradley insisted that it was not the decisions of legislators or the judiciary but the inherent nature of women—their timidity and delicacy—that disqualified the so-called weaker sex from a range of activities and occupations in the public sphere. The constitution of the family organization, he announced, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.²⁶ Bradley’s rhetoric demonstrates how the traditional voice of the law works to hide its patriarchal bias. Here, he points to the constitution of the family, to the divine ordinance, and to nature to frame the court’s decision as absolutely sound and wholly objective.

Justice Bradley’s declarative tone and rhetoric of inevitability, two features that Ferguson describes as central to the genre of judicial opinion, combine in his voice of objectivity to obscure the masculinist bias of his reasoning and to frame the court’s decision as legitimate and unquestionable. Ferguson explains, The one thing that a judge never admits in the moment of decision is freedom of choice. The monologic voice of the opinion can never appear to act on its own. It must instead appear as if forced to its inevitable conclusion by the logic of the situation and the duties of office.²⁷ The script of objectivity that shapes the traditional voice of the law certainly functions to safeguard the myth of the disinterested and apolitical judge. Beginning with Bradwell v. Illinois, this myth is particularly problematic in cases of women’s rights. Throughout the court’s history, the judicial voice of objectivity has called upon the topoi of God, of nature, and of science to undermine the full and equal citizenship of women while denying the law’s patriarchal bias. As Eisenstein puts it, Law as a politics is made invisible by the inevitability of nature. The rule of law through nature masks the hierarchy it seeks to protect.²⁸ In the closing lines of his opinion, Bradley reiterates, In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position.²⁹ And with that, Justice Bradley’s concurring opinion wrote the logic of separate spheres into the Fourteenth Amendment as an unquestionable and inevitable truth.

A rhetorical commitment to abstraction also shapes the traditional voice of the law. Recall Lucinda Finley’s point that legal language commands: abstract a situation from historical, social, and political context.³⁰ Bradley’s opinion follows this script of abstraction to make sweeping generalizations and to advance a singular understanding of the nature, destiny, and mission of women. The commitment to abstraction refuses to consider the life of the law in context and assumes that citizens can be properly conceptualized as generalities—that a singular and universal notion of woman, for example, will justly and equally serve all women. This universalization of woman, of course, takes place through a number of exclusions that exalt the racial, economic, and heteronormative privileges that underpin the ideology of separate spheres.

Justice Bradley’s abstract rhetoric advanced a characterization of woman-as-mother that refused to yield for those who did not fit within its confines. He argued, It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule.³¹ The rhetorical commitment to abstraction demands that the general rule governs all while rendering the lives and experiences of many women inconsequential and invisible. An often-quoted line from Bradley’s opinion announces: The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.³² There is no room to account for those who do not meet Justice Bradley’s characterization of proper womanhood. Katharine Bartlett points to the consequences: "The tendency to treat woman as a single analytic category has a number of dangers. For one thing, it obscures—even denies—differences among women . . . especially in race,