I. Introduction
On June 24, 2022, the U.S. Supreme Court issued its much-anticipated decision in Dobbs v. Jackson Women’s Health Organization,[1] upholding a Mississippi ban on pre-viability abortions and overruling Roe v. Wade[2] and Planned Parenthood of Southeastern Pennsylvania v. Casey,[3] once the twin pillars of the Court’s abortion jurisprudence.[4] Although the decision ostensibly “return[ed] the issue of abortion to the people’s elected representatives,” as “the Constitution and the rule of law demand,”[5] it was immediately clear that the decision completely reoriented the reproductive rights landscape, imposing broad consequences on women and pregnant people throughout the country.[6]
Given all of the hubbub surrounding Dobbs, there was less discussion of the other consequential decisions that the Roberts Court handed down in October Term 2021. But if the media understood Dobbs as exemplary of the “[w]ar on women,”[7] it completely overlooked what I term the Court’s ascendant “jurisprudence of masculinity.” From cases expanding the scope of gun rights,[8] free exercise of religion,[9] and property rights,[10] the Court in recent years has cobbled together a jurisprudence that prioritizes, both explicitly and implicitly, men’s rights, even as it diminishes and constrains women’s rights.
This Address proceeds in five parts. Part II lays a foundation for what follows by considering three cases from the Court’s most recent term: Dobbs v. Jackson Women’s Health Organization,[11] New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[12] and Kennedy v. Bremerton School District.[13] As it explains, taken together, these three decisions suggest the Court’s solicitude for certain constitutional rights over others. Rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely. On this account, Part II concludes that the Court not only privileges rights that are “coded” male but that in doing so, prioritizes the exercise of constitutional rights by men. Taken together, this suggests an emerging jurisprudence of masculinity.
Part III pivots to consider the contours of this ascendant jurisprudence of masculinity. As it explains, the Roberts Court’s jurisprudence of masculinity goes beyond expressing a preference for constitutional rights that code male or that are likely to be exercised by men. It recasts the legal landscape in which constitutional rights are exercised to provide maximum solicitude for the protection and exercise of men’s rights. Specifically, the jurisprudence of masculinity enlists the legal landscape for the protection and prioritization of men’s rights by reorganizing the public–private divide, recasting the nature of men’s (and women’s) bodies, and recharacterizing the relationship between the state, rights, and regulation.
Part IV considers the Roberts Court’s originalist orientation in engendering a jurisprudence of masculinity. As it explains, the Court’s commitment to originalism is selective and itinerant. And indeed, the selectiveness and inconsistency of originalism enables the jurisprudence of masculinity. Specifically, the Roberts Court’s originalism focuses narrowly on certain founding moments while ignoring the histories that undermine—or challenge entirely—a particular vision of constitutional rights. This selectivity allows the Court to interpret the Constitution, its text, and history in ways that prioritize and protect men in their exercise of constitutional rights while willfully ignoring the history that might support women’s claims for constitutional protection and rights.
Part V briefly explores the consequences and implications of the Court’s fidelity to a jurisprudence of masculinity. As Part V explains, in casting itself as arbiter and protector of men’s rights, the Court necessarily leaves the protection of women and their rights to the political process. To be sure, the prospect of a demosprudence of womanhood might seem an appealing counterpoint to a jurisprudence of masculinity. However, this prospect is decidedly less attractive given that the Court, again through its decisions, has facilitated the distortion and disruption of the processes of democratic deliberation. These Court-cultivated distortions of the democratic landscape make it more difficult for women to participate as equal citizens in, and to achieve the codification and protection of their rights and interests through, the political process. Part VI briefly concludes.
II. Men’s Rights and Women’s Wrongs
This part briefly rehearses the facts of the three cases that exemplify the Court’s solicitude for the protection and practice of men’s rights and its deep skepticism of women’s rights. Having described the circumstances and holdings of each case, it considers the way in which the three cases coalesce around what I term a “jurisprudence of masculinity”—that is, the Court’s solicitude for rights that are coded “male” and an understanding of men as uniquely endangered and deserving of judicial solicitude and protection.
A. Dobbs v. Jackson Women’s Health Organization
On June 24, 2022, the Supreme Court announced its much-anticipated decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.[14] Because “[t]he Constitution makes no express reference to a right to obtain an abortion” and “a right to abortion is not deeply rooted in the Nation’s history and traditions,” the Court determined that it was within its authority to reconsider both Roe and Casey.[15] Noting that “stare decisis is ‘not an inexorable command,’” particularly in the context of constitutional adjudication, the Dobbs majority overruled both precedents on the ground that they were “egregiously wrong and deeply damaging.”[16]
The logic of the Dobbs decision was relatively straightforward. In keeping with its apparent interest in originalism,[17] the Dobbs majority focused first on whether the text of the Constitution specifically provided a right to abortion.[18] Having concluded that the right to choose an abortion is not explicitly enumerated in the Constitution’s text,[19] the majority then turned to whether such a right, if unenumerated, was deeply rooted in the nation’s history and traditions.[20] The majority then canvassed the history of abortion criminalization in the United States, which, despite the selectivity of its statutory sample, it took as conclusive evidence that a right to abortion was not deeply rooted in the history and traditions of the United States.[21]
The majority then pivoted to consider whether a right to abortion might proceed from an individual’s “freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy,’” concluding that “[w]hile individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with [these] thoughts.”[22] On this view, the majority underscored a distinction between liberty—that is, “[l]icense to act on the basis of [one’s] beliefs”—and ordered liberty, which “sets limits and defines the boundary between competing interests.”[23] Although women and pregnant people may have their own views about whether and how to assume the obligations and responsibilities of parenthood, or even about whether and how a pregnancy will affect their health and lives, these concerns cannot be prioritized over the prospect of “potential life” and the state’s ability to determine “how abortion should be regulated.”[24] Put differently, pregnancy transforms a once-autonomous individual into a vessel onto which the state may project its preferred understanding of ordered liberty.
Critically, the Dobbs Court’s crabbed understanding of liberty and its terrain is selective, targeting women and their right to govern their own bodies. As the following parts make clear, when it comes to other rights and other bodies, the Roberts Court has been decidedly more solicitous.
B. New York State Rifle & Pistol Ass’n, Inc. v. Bruen
New York State Rifle & Pistol Ass’n, Inc. v. Bruen was the Court’s first major Second Amendment decision in more than a decade.[25] In 2008, the Court, in District of Columbia v. Heller, concluded that, despite its text, the Second Amendment’s protections were not confined to militia service and instead enshrined an individual right to keep and bear arms in the home for purposes of self- or home-defense.[26] Two years later in McDonald v. City of Chicago, the Court determined that this vision of the Second Amendment was applicable to the states through the Fourteenth Amendment.[27]
Heller and McDonald heralded a profound shift in the Court’s interpretation of the Second Amendment.[28] However, in Bruen, the Court went even further, invalidating New York’s concealed-carry permitting regime, which required those seeking an unrestricted license to carry a concealed handgun to demonstrate “proper cause.”[29] In so doing, Bruen interpreted the Second Amendment broadly to endorse a right to bear arms in and outside of the home, laying a foundation for individuals to carry firearms in public.[30]
Under the New York law challenged in Bruen, a license is required to carry a concealed firearm in public. Prior to Bruen, in order to receive a license to carry a concealed firearm in public, a gun owner had to establish that “proper cause exists” for such a license.[31] Though no New York statute defines “proper cause,” the state courts have determined that proper cause exists only where the gun owner can “demonstrate a special need for self-protection distinguishable from that of the general community.”[32] To satisfy this “special need” requirement, the gun owner must produce evidence “of particular threats, attacks or other extraordinary danger to personal safety.”[33]
In reviewing the challenged New York permitting regime, Justice Clarence Thomas, who wrote for a 6–3 majority in Bruen, emphasized that the Court’s inquiry would be rooted in originalist methods—that is, focused on the “Second Amendment’s text and historical understanding.”[34] Accordingly, in reviewing contemporary gun control regulations, the Court must consider whether the challenged regulation “addresses a general societal problem that has persisted since the 18th century.”[35] If the Founders had not encountered the problem or had “addressed [it] . . . through materially different means, that [] could be evidence that a modern regulation is unconstitutional.”[36] While the majority conceded the existence of “‘longstanding’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,’” it rejected the State’s argument that the challenged permitting regime functioned as a “‘sensitive-place’ law.”[37] New York’s definition of “‘sensitive places’ . . . include[d] all ‘places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.’”[38] But, in the majority’s view, this definition defined the landscape for state regulation of the Second Amendment “too broadly.”[39] “Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”[40]
But it was not simply that history precluded New York from effectively denominating metropolitan areas as “sensitive places” appropriate for state regulation of firearms, it was that “[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.”[41] According to the Bruen majority, the right to “bear arms,” as discussed in Heller, “refers to the right to ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”[42] On this account, despite its acknowledgment of state laws that historically limited the carrying of weapons in public,[43] Heller’s understanding of the term “‘bear’ naturally encompasses public carry.”[44] Indeed, on the majority’s telling, “[t]o confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.”[45] If Heller understood the Second Amendment to protect the right to keep and bear arms in the home, its logic now extended beyond the home to the public sphere.
As a number of commentators have observed, taken together, Heller and McDonald effectively constitutionalize the common law Castle Doctrine.[46] Reflecting the understanding that “a man’s house is his castle,”[47] the Castle Doctrine grants an individual attacked in his own home the right to use deadly force without first making an effort to retreat to safety.[48] But if Heller and McDonald reified the (quite novel) view that the Second Amendment constitutionalizes the notion that a man’s home is his castle, then Bruen expands the physical boundaries of the “castle” beyond the home and its curtilage to include the broad expanse of the public sphere.
C. Kennedy v. Bremerton School District
On the majority’s telling, the facts of Kennedy v. Bremerton School District are the stuff of Jimmy Stewart movies—a small-town “everyman” who, according to the Court, follows his conscience only to be besieged by an ever-encroaching state bent on reining him in.[49] Hired in 2008 to serve as a part-time assistant coach for the Bremerton High School (BHS) varsity football team and head coach for the junior varsity team, Kennedy was tasked with standard coach duties—“[a]ccompany[ing] and direct[ing]” student-players at home and away games, conducting practice sessions, organizing transportation to games, and being “[r]esponsible for player behavior both on and off the field.”[50] These duties also included “‘supervising student activities immediately following the completion of the game’ until the student[-players] were released to their parents or otherwise allowed to leave.”[51]
In addition to undertaking these duties, Coach Kennedy went further. After his hiring in 2008, he routinely led and participated in locker room prayers with student-athletes in attendance, a practice that he did not defend at the high court.[52] He also began a regular practice of kneeling on the fifty-yard line to pray “at the conclusion of each game.”[53] While Kennedy maintained that he initially prayed alone,[54] over time, a majority of the team began participating in the postgame prayer circle, with the numbers varying from game to game.[55] In time, Kennedy’s prayers “evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with ‘overtly religious references,’ which Kennedy described as prayers, while the [student-]players kneeled around him.”[56] In time, Kennedy’s postgame prayers evolved to include locker room prayers as well.[57]
Once alerted to Kennedy’s activities, the school district instructed him to discontinue his locker room and postgame prayers.[58] And while Kennedy complied with regard to the locker room prayers with student-athletes, he nevertheless persisted with regard to the postgame midfield prayers.[59] Indeed, recognizing the interest in the dispute, Kennedy invited others to join him at prayer, which drew increased media coverage.[60] Concerned that Kennedy’s continued practice of holding postgame prayers violated students’ religious freedom rights, created a safety risk at games, and exposed the school district to an Establishment Clause challenge, the school district placed Kennedy on administrative leave.[61]
Kennedy brought suit, arguing that the school district’s actions violated his First Amendment rights to free exercise of religion and free speech.[62] In a 6–3 decision that split along ideological lines, a majority of the Court agreed that the school district’s disciplinary actions violated Kennedy’s rights to free exercise of religion and free speech.[63] With regard to the free exercise claim, the majority concluded that Kennedy demonstrated that he was engaged in the sincere exercise of his religious beliefs[64] and that the school district’s policies restricting his conduct were neither neutral nor generally applicable, as required under extant First Amendment jurisprudence.[65]
Kennedy’s free speech claim, the majority explained, turned on the question of whether Kennedy “offer[ed] his prayers in his capacity as a private citizen, or did [the prayers] amount to government speech attributable to the District?”[66] In the majority’s view, Kennedy’s prayers were not “speech ‘ordinarily within the scope’ of his duties as a coach” because his prayers were private and, as such, could not be considered government speech.[67] In reaching this conclusion, the majority emphasized that despite Kennedy’s status as a school employee, his prayers had occurred “[d]uring the postgame period when . . . coaches were free to attend briefly to personal matters.”[68] Though Kennedy’s prayers took place on school property—“the field of play”—with students and other school personnel in close proximity, the majority nonetheless concluded that his actions were not undertaken in “the scope of his duties as a coach.”[69] Instead, despite its very public character and Kennedy’s employment as a public school employee, the prayers were “private speech, not government speech.”[70]
The majority also breezily dismissed the school district’s concerns that suspending Kennedy was necessary to “avoid a violation of the Establishment Clause.”[71] Reading the Free Exercise Clause, Establishment Clause, and Free Speech Clause as “complementary”[72]—and repudiating as “abandoned” Lemon v. Kurtzman,[73] the long-standing test of state “‘endorsement’ of religion”[74]—the Kennedy majority maintained that the school district’s desire to avoid violating the Establishment Clause had improperly prioritized antiestablishment principles ahead of free exercise values.[75] Indeed, the majority seemed skeptical that the school district’s Establishment Clause concerns were authentic and not manufactured.[76] As it explained, the school district “effectively created its own ‘vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,’ placed itself in the middle, and then chose its preferred way out of its self-imposed trap.”[77]
Without a doubt, Kennedy was a consequential, if somewhat overlooked, decision. Not only did the Court reconfigure the contours of its free exercise and government speech jurisprudence, it insisted that the Lemon test for determining impermissible state entanglement with religion had been “abandoned,”[78] which will likely hobble future efforts to enforce the Establishment Clause. As a consequence of the Court’s ruling, if state officials act on Establishment Clause concerns, they now perversely run the risk of violating the Free Exercise Clause.
D. A Jurisprudence of Masculinity
In assessing October Term 2022, media commentators understandably focused on the Dobbs decision and the rapidly changing legal landscape surrounding reproductive rights. While Bruen and Kennedy received substantial media attention, most of the coverage focused on the two decisions and their impact within their respective doctrinal siloes.[79] On this account, Bruen, which was announced on the heels of two major mass shootings,[80] called into question a range of gun control efforts aimed at limiting public carrying of firearms and accelerated debates over gun safety.[81] Likewise, Kennedy was primarily discussed in terms of its likely impact in resuscitating the pitched debate over school prayer.[82]
By contrast, few saw the three cases as implicating each other. And while Dobbs had obvious consequences for the recognition and exercise of women’s rights, few discussed Kennedy and Bruen in terms of their import for expanding the rights of men.
These oversights are regrettable because, when read in tandem, these three cases clearly go beyond their doctrinal moorings to give shape to a jurisprudence that can tell us much about the Roberts Court’s approach to gender and the understanding and exercise of constitutional rights. As I maintain, these three cases reveal the Roberts Court’s strong preference for protecting and vindicating rights that code “male” while dismissing the prospect of rights that code “female.” In addition, these cases reveal an understanding of men as aggrieved and embattled rights bearers who require—and deserve—the Court’s protection.
1. Men’s Rights v. Women’s Rights
The prospect of rights that “code” male and female is perhaps inevitable in our constitutional order. After all, as Professor Mary Anne Franks explains, a preoccupation with (white) men’s rights and privileges “permeates the creation, interpretation, explication, and execution of the Constitution.”[83] On this account, the rights enshrined in the Bill of Rights—like the First Amendment and Second Amendment rights credited in Kennedy and Bruen—were initially drafted and ratified with the expectation that they would be exercised by (white, property-owning) men.[84] Indeed, it was not until the disruption of the Reconstruction Amendments and the Nineteenth Amendment that constitutional text even contemplated the possibility of bodies other than those of white men being rights bearers.[85] And even then, after the ratification of the Nineteenth Amendment, the Court, through a series of cases probing the constitutionality of sex-based discrimination, still had to read women into the Constitution’s guarantee of equality.[86]
It is not just that these rights were drafted and ratified with the expectation that they would be exercised by white, male property owners; it is that the critical decisions about which rights to explicitly protect in the Constitution were made by white, male property owners. Relatedly, the methodology that the Court deploys—indeed, demands—in Bruen, and to a lesser extent, Kennedy, is one that is consistent with the nation’s traditions and takes direction from Founding-Era examples and analogues.[87] This backward-looking interpretive approach similarly orients the inquiry around the expectations and decisions of white, male property owners—the men who were the political decision-makers at the Founding and the only persons included in the political process and the polity.
With all of this in mind, it is unsurprising then that the exercise of rights like the right to keep and bear arms and the right to free exercise of religion and free speech code “male,” while other rights, like the right to abortion, code “female.”
Of course, the association of these rights with a particular gender may also have a biological and sociological component. The association of the right to abortion with women’s rights clearly proceeds from the historical association of pregnancy with women. Moreover, robust protection for reproductive rights has long been a pillar of the Women’s Rights Movement,[88] and earlier Courts have discussed such rights as inextricably linked to women’s equality and equal participation as citizens in society.[89] With all of this in mind, it is hardly surprising that the actual and imagined rights bearers in Dobbs are largely women. And critically, their exercise of the right to choose an abortion will result in avoiding a social status—motherhood—that is typically associated with (and indeed, has defined for legal purposes) womanhood.[90]
Likewise, although the text of the Second Amendment is gender-neutral, the association of gun rights with men is no doubt influenced by the fact that, as an empirical matter, men are more likely to own and use guns than women.[91] Relatedly, when women do use guns—particularly in the context of domestic violence or other abuse—they are less likely to get the benefit of legal defenses, such as the Castle Doctrine and Stand Your Ground laws, that have developed in support of gun owners and their rights.[92]
First Amendment protections for speech and religion, like Second Amendment protections, are gender-neutral in theory, though not necessarily in practice. Indeed, much ink has been spilled on the degree to which protections for free speech have historically been deployed to sanction men’s activities and pleasures—and to silence objecting women and minorities.[93] To this end, free speech principles have been deployed to protect Nazis[94] and the use of pornography in the home[95] while silencing women objecting to sexual harassment and assault in workplaces.[96] Similarly, the Court’s understanding of free speech coalesces around fora where men are more likely to be the speakers and wield authority. For example, in Citizens United v. FEC, the Court offered a novel reading of free speech principles to invalidate campaign finance regulations and authorize a wider range of corporate political speech.[97]
And critically, although the First and Second Amendments are nominally gender-neutral in their application, when the Roberts Court speaks to these rights it is often in circumstances where the rights bearer in question is a man. In Kennedy, the clash of the First Amendment’s two religion clauses is precipitated by a male high school football coach’s decision to pray openly on the fifty-yard line.[98] In Bruen, the litigants were also men—New York gun owners who were denied the desired concealed-carry permit.[99]
But it is not simply that the litigants in these cases were men. It is that the Court’s understanding of who might exercise these rights is dominated by men, both real and imagined. For example, both the Bruen majority and Justice Alito, in a concurring opinion, discuss the exercise of gun rights in ways that clearly contemplate men as the rights bearers in question. At the Bruen oral argument, Justice Alito bemoaned the prospect of “ordinary hard-working, law-abiding people” forced to brave an urban landscape replete with criminals brandishing “illegal guns.”[100] Who exactly were these “ordinary law-abiding citizens who feel the need to carry a firearm for self-defense”?[101] According to Justice Alito, they included “people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes.”[102]
Tellingly, most of the “hard-working” commuters of Justice Alito’s imagining are likely to be men—janitors, doormen, and dishwashers.[103] Likewise, in his majority opinion in Bruen, Justice Thomas recounts a history in which southern states thwarted Black men seeking to exercise their Second Amendment rights, rendering these freedmen vulnerable to racialized violence in the postbellum era.[104]
2. Discrete and Insular Majorities?
Justice Thomas’s depiction of freedmen in the postbellum area presages another aspect of the Court’s solicitude for men’s rights. Not only does the Roberts Court seem especially receptive to the recognition—and expansion—of “male” rights and the men who lay claim to them, the Court imagines these men as uniquely vulnerable to the restriction—and even the recission—of their rights.
Consider the Court’s disposition of 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Court took up the question of the collision between the First Amendment’s protections for free exercise of religion and state-level antidiscrimination laws.[105] The case involved a Christian baker, Jack Phillips, who refused to provide wedding cakes for same-sex weddings in defiance of Colorado’s public accommodations law, which prohibited business owners from discriminating on the basis of sexual orientation.[106]
In the end, the Court never resolved the question of whether the First Amendment trumps civil rights protections for LGBTQ persons.[107] Instead, the Court concluded that the Colorado Civil Rights Commission had failed to review Phillips’s claims with the neutrality to which he was entitled and, in so doing, had exhibited “hostility” to religion in violation of the First Amendment.[108] Although the Court decided Masterpiece Cakeshop on First Amendment grounds, the decision recalled the Court’s equal protection doctrine of unconstitutional animus.[109] Specifically, the Masterpiece majority concluded that, in reviewing Phillips’s claims, the state Commission acted with “hostility to a religion or [a] religious viewpoint.”[110]
I raise the Court’s disposition of Masterpiece Cakeshop because of its novel inversion of the doctrine of animus to vindicate and protect the rights of Jack Phillips. As I have elsewhere argued,[111] the Masterpiece Cakeshop Court’s deployment of animus to protect Jack Phillips, a straight, white, and Christian man, flies in the face of the traditional equal protection hierarchy articulated in Carolene Products Footnote Four.[112] Under the logic of Footnote Four, more searching judicial scrutiny is appropriate—indeed, required—in circumstances where the state is restricting the exercise of fundamental rights and where those seeking to exercise those rights are discrete and insular minorities who lack the political power to vindicate their interests through majoritarian politics.[113] Later cases, such as U.S. Department of Agriculture v. Moreno, offered a gloss on this principle, insisting upon more skeptical judicial scrutiny in circumstances that evince “a bare . . . desire to harm a politically unpopular group.”[114]
And while straight, white, and male Protestants are not generally among the traditional account of “politically unpopular groups” or “discrete and insular minorities,” the Masterpiece Cakeshop Court understood Phillips in precisely those terms. Indeed, in resolving the case, it figured Phillips, whose alleged discrimination of a same-sex couple had given rise to the dispute, as the actual victim of discrimination.[115]
The Court’s disposition of Masterpiece Cakeshop accords with its treatment of the women litigants in other contexts in which religious freedom clashed with antidiscrimination norms. Consider the Court’s disposition of Our Lady of Guadalupe School v. Morrissey-Berru, a set of two consolidated cases concerning the scope and substance of the “ministerial exception” to federal antidiscrimination laws.[116] In the two cases, women teachers at parochial schools separately filed suit against their employers on the grounds that they had been discharged in violation of federal laws prohibiting discrimination in employment.[117] Kristen Biel, one of the plaintiffs, alleged that, after requesting a leave of absence to undergo treatment for breast cancer, her parochial school employer declined to renew her contract for the upcoming school year.[118] The second case involved Agnes Morrissey-Berru, a lay elementary teacher at a parochial school, who was “asked [] to move from a full-time to a part-time position” and whose contract was later not renewed.[119] Morrissey-Berru filed suit, arguing that the renewal decision was undertaken so that the school could replace her with a younger teacher.[120]
Just as the Masterpiece Cakeshop majority appeared more concerned for Jack Phillips’s religious freedom than for the prospect of discrimination against LGBTQ persons seeking wedding cakes, the Court in Our Lady of Guadalupe was more solicitous of the prerogatives of religious employers than the prospect of discrimination against the two female employees—or the prospect of insulating religious employers from the ambit of federal antidiscrimination laws more generally. Indeed, the 7–2 decision appeared to expand the scope and substance of the ministerial exception, rendering it applicable to a wide range of employees simply because the religious employer deemed the employees’ work “ministerial” in nature.[121] Critically, the Court’s decision in Our Lady of Guadalupe helps to insulate religious employers from a wide range of employment discrimination claims—from the disability and age discrimination claims lodged by the Our Lady of Guadalupe plaintiffs to sexual harassment claims.[122] And, as the National Women’s Law Center argued in its amicus brief in Our Lady of Guadalupe, the expansion of the ministerial exception could have profound implications for women and women of color who are employed by religious institutions and their affiliates.[123]
On one level, the comparison between Masterpiece Cakeshop and Our Lady of Guadalupe suggests the ways in which religious liberty serves as both shield and sword in subordinating other values. Indeed, the Court’s inattention to the prospect of the discrimination that Biel and Morrissey-Berru faced—and its limited discussion of the two women at the heart of the disputes—is startling when juxtaposed with its tender treatment of Jack Phillips in Masterpiece Cakeshop. Under the majority’s watchful eye, Phillips is recast from a Christian business owner refusing to serve certain customers to a beleaguered minority crushed by the state’s antidiscrimination mandate.
Critically, this juridical recasting is echoed in the Court’s discussion of the rights bearers—both actual and imagined—in Bruen and Kennedy. In both cases, the litigants are white men, yet the Court imagines them in the posture of political minorities—besieged by, and at the mercy of, the state.[124] Put differently, the Court is able to rationalize ruling for the dominant class by recasting individual litigants within that class as aggrieved and beleaguered underdogs. Rather than reflect on its consolidation of considerable power in the class as a whole—Christian evangelicals, gun owners, and men—the Court instead focuses myopically on individual rights bearers who are improbably figured as utterly powerless against the leviathan of the state.[125] In Bruen, the rights bearer is imagined as either a beleaguered working man, who must resort to arming himself as a matter of personal safety,[126] or as a thwarted citizen for whom the state’s restriction of the right to bear arms will render him powerless against senseless violence.[127] In both cases, the state renders the rights bearer vulnerable and powerless—exactly the posture of the “discrete and insular” minorities who are the special subjects of judicial protection in Footnote Four. And in a peculiar bit of juridical alchemy, the Court renders this vulnerability a source of strength by using it to underwrite the expansion of Second Amendment rights.
In Kennedy, it is not only that the praying coach is figured as a beleaguered victim wrongly denied the exercise of his First Amendment rights but also that the Court appears entirely oblivious to the minority groups whose interests were actually impacted by the coach’s conduct. Meaningfully, a number of community members objected to the coach’s midfield prayers, including non-Christian student-players who, because of Kennedy’s role as an authority figure in the school community, felt pressured to participate, as well as community members who objected to what they viewed as the school’s endorsement of Christianity.[128] The Kennedy majority barely addresses these objections, insisting that “[t]he evidence cannot sustain” such claims of coercion.[129]
Instead, it was left to the dissent to note for the record that Bremerton School District served a community that “is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated.”[130] The point was obvious: In treating Kennedy like a minority in need of the Court’s protection, the majority had overlooked the pluralistic religious character of the Bremerton community and the objections of groups that, in historical practice, would be considered religious minorities.
To be clear, men, who dominate every branch of government and are overrepresented in the ranks of corporate America and industry,[131] are in no danger of becoming a minority group.[132] But that is how the Roberts Court and its jurisprudence of masculine grievance understands them—as beleaguered and besieged. By contrast, the women who wish to secure and exercise their rights to make decisions about their bodies find no quarter with this Court. Instead, they are told to vindicate their interests through the political process.[133] On this account, the Roberts Court’s posture appears somewhat disingenuous. Although sex has been denominated a quasi-suspect classification for purposes of equal protection doctrine,[134] and women are grossly underrepresented among the ranks of state and federal legislators, state governors, and the state and federal judiciary,[135] the Dobbs majority insists that women are equipped with the wherewithal to recover their reproductive rights in the political process. As Justice Alito explains, in the manner of a self-evident truth and with no acknowledgment of the Court’s role in distorting the infrastructure of democracy,[136] “[w]omen are not without electoral or political power.”[137]
The foregoing part introduced the notion that the Roberts Court has, through its recent decisions, given rise to a jurisprudence of masculinity that is characterized by the recognition and expansion of rights that are coded “male” and extreme judicial solicitude for those men who wish to claim those rights. By contrast, the jurisprudence of masculinity offers no quarter to women, who are compelled to vindicate their rights to bodily autonomy in the distorted landscape of majoritarian politics.
But, meaningfully, the jurisprudence of masculinity goes beyond prioritizing men and their rights in the constitutional order. As the following part explains, the jurisprudence of masculinity operates by fundamentally recasting core assumptions in constitutional law in ways that privilege and prioritize men.
III. Constitutionalizing Men
This part examines the contours of the Roberts Court’s jurisprudence of masculinity. As it explains, the jurisprudence of masculinity operates by disrupting or reordering constitutional law’s assumptions about rights and the forces that threaten the exercise of rights. In this regard, the jurisprudence of masculinity is not simply about prioritizing rights that code “male” and protecting men. It is about recasting the legal imaginary in ways that privilege men and the exercise of their rights.
With this in mind, the following sections consider the ways in which the jurisprudence of masculinity reconstitutes the traditional understanding of the public–private divide, recharacterizes the understanding of bodies, and reconceives state regulatory power.
A. Reconstituting the Public–Private Divide
Liberal democratic theory posits a society divided between two separate spheres—the public and the private spheres, each with its own role and activities.[138] The private sphere refers to the area of activity that is presumptively beyond the legitimate bounds of the state.[139] On this view, the private sphere includes the home and the family, as well as religious institutions—entities that are viewed as insulated from state regulation—and gives rise to a degree of “private autonomy which government is bound to respect.”[140] By contrast, the public sphere is that area of activity that is legitimately subject to state regulation.[141] In liberal democratic theory, because the public sphere is characterized by self-interest, hierarchy, and competition, state regulation is necessary to order the tension between these individual impulses.[142]
As such, the public–private dichotomy fashioned the public sphere as the proper sphere of state regulation.[143] The private sphere, in contrast, stood apart from the state, market, and regulation—indeed, the home and the church were often explicitly figured as havens or sanctuaries from the travails of the public sphere.[144]
Meaningfully, the traditional public–private divide also had a gendered cast.[145] The public sphere was the realm of men, the state, and the marketplace, while the private sphere was the realm of women, the home, and other private institutions.[146] The Court itself appeared to constitutionalize this division of law’s landscape. In 1872’s Bradwell v. Illinois, Associate Justice Joseph Bradley noted this gender divide and enshrined it in the annals of the U.S. Reports.[147] As he put it,
[C]ivil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman . . . . The constitution of the family organization, 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.[148]
The Roberts Court’s ascendant jurisprudence of masculinity turns this traditional configuration of the public and private on its ear. No longer is the public sphere solely the domain of men and masculine pursuits. Instead, under the logic of the jurisprudence of masculinity, the public–private dichotomy is reconfigured such that men—and more particularly, men’s bodies—are deemed improper subjects of state regulation and are thus rendered coextensive with the private sphere. Kennedy is exemplary of this dynamic. The Kennedy majority leans into the notion of a separation of church and state—to the extent that such a divide insulates Coach Kennedy’s conduct from the school board’s regulatory impulses.[149]
And to be clear, it is the Court’s understanding of Kennedy’s conduct that facilitates the transmogrification of the space that he occupies from public to private. As the Kennedy majority announces repeatedly, although Kennedy, a school official, is located on the football field—school property—he is engaged in quiet prayer on his own personal time.[150] These conditions, the majority insists, render Kennedy’s prayers private, rather than government, speech;[151] and more importantly, it renders the football field part of the private sphere, insulated from state regulation for as long as Kennedy is at prayer. On this account, the fact that an individual is engaged in prayer transforms space, regardless of its public ownership, into something akin to a church—that is, private space unsuitable for public regulation.
In a similar vein, the logic of Bruen also results in the reorganization of the public–private divide and a reconfiguration of space. As discussed above, the Court’s earlier Second Amendment decisions, Heller and McDonald, effectively constitutionalized the Castle Doctrine by insisting that the right to keep and bear arms was especially robust and inviolate in the context of the home and home defense.[152] Bruen extends this logic beyond the physical boundaries of the home to the public sphere, and in so doing, suggests that, insofar as the exercise of Second Amendment rights is concerned, there is no boundary separating the home from the public sphere. Men are literally at home in the world—and possessed of the right to bear arms there.
Bruen’s transmogrification of the public sphere into a private sphere insulated from the prospect of state gun control regulations is rooted in the majority’s concerns for men’s safety (and their vulnerability). As discussed above, both Justices Thomas and Alito emphasized a link between robust gun rights and individual safety.[153] According to Justice Thomas, historically, one’s ability to exercise Second Amendment rights could literally mean the difference between a safe and dignified existence or being the victim of racialized terror.[154] Similarly, on Justice Alito’s telling, current threats from “illegal” guns and random violence mean that hardworking commuters must be able to exercise their Second Amendment rights or risk their personal safety when commuting on public transportation.[155] Although they imagine different threats—one racialized and historic, one contemporary and unrelenting—both the Bruen majority opinion and Justice Alito’s concurrence understand the threat to personal safety—men’s safety—as so profound that it may transform the public sphere into an extension of the home, allowing the exercise of gun rights unimpeded by state regulation. Basically, if men are endangered, then there is no distinction between the home—the Castle—and the public sphere.
While Kennedy and Bruen make clear that the public sphere may be transformed into a private refuge for praying or gun-toting men, the possibilities of such sanctuary are more elusive for women after Dobbs. In stark contrast, under Dobbs, women have few sanctuaries from state regulation.[156] Meaningfully, in Dobbs, the transmutation of space works in the opposite direction from Kennedy and Bruen, transforming the private sphere into public space suitable for state regulation. Prior to Dobbs, cases like Griswold v. Connecticut[157] and Eisenstadt v. Baird,[158] in tandem with Roe and Casey, rooted reproductive rights in the understanding of constitutional privacy—the idea that the individual occupied a zone of privacy into which the state could not intrude unduly.[159] In overruling Roe and Casey, the Dobbs majority forecloses on the promise of privacy. Indeed, in direct contrast to Bruen and Kennedy, which saw the public sphere yield to the expansion of the private sphere, Dobbs insists on the recission of the private sphere in favor of an expansive public sphere where the state’s regulatory authority is robust.
But meaningfully, the reconfiguration of the public–private divide is not a simple inversion. This reconfiguration goes beyond merely expanding men’s privacy and rendering women’s intimate lives subject to public regulation. Taken together, Bruen, Kennedy, and Dobbs are a recharacterization of the rights themselves. If the private sphere once offered women a small sliver of rights pertaining to their bodily autonomy, the Court’s jurisprudence of masculinity reconfigures the meaning of privacy entirely. Not only do men now have access to the private sphere, but the right of bodily autonomy protected in the private sphere is recast in the vernacular of gun rights, speech rights, and religious freedom. In this reconfigured private sphere, these First and Second Amendment protections are recast as protections for bodily autonomy—men’s bodily autonomy. In a world where men—and their bodies—are vulnerable and embattled, these new protections envelop male rights bearers in the mantle of privacy, rendering them secure from state regulation and the dangers it presents.
B. Recharacterizing Bodies
Critically, the jurisprudence of masculinity does not simply reconfigure the public–private divide and recast quintessentially public spaces as private merely because men are present; it also recharacterizes bodies, insulating some from the state’s regulatory impulses while exposing others to the full force of state surveillance and regulation.[160] And meaningfully, in recasting bodies, the jurisprudence of masculinity gives primacy to the male body, which is recast as either a castle or temple—the living embodiment of traditionally private institutions.
This impulse is perhaps most obvious in Kennedy, where the majority opinion insists that Coach Kennedy’s prayers are private conduct and speech, constitutionally insulated from state regulation, even though they are the actions of a public employee that occur on public property.[161] In sequestering Kennedy’s prayers from public regulation, the Court not only transforms the public space of the football field (and Kennedy’s employment as a public servant) into nominally private conduct, it also makes clear that the privacy to which Kennedy is entitled is incident to his praying body. Put differently, by the Kennedy majority’s logic, so long as Kennedy is engaged in the “sincere” act of prayer at a time reserved for his personal pursuits,[162] the conduct—and the body engaged in that protected conduct—are insulated from public regulation. In this regard, the wall between church and state goes beyond merely protecting Kennedy’s sacred conduct: it renders his body and the space it occupies as a literal temple or church—sacred, private, and beyond the aegis of the state.[163]
An even more surprising alchemy occurs in the context of the Second Amendment. Under Bruen’s logic, it is not simply that a man’s home is his castle but that even public spaces, like the New York City subway, can be viewed as an extension of the home and castle when the safety of the individual male rights bearer is threatened (or merely imagined as threatened).[164] Critically, the transformation of public spaces, like the subway, into private spaces unsuitable for state regulation does not simply depend on the fact of a threat to the rights-bearing body. This transformation proceeds, at least in part, from the understanding that the rights-bearing (male) body—and its interest in personal safety—is coextensive with the private sphere. If a man’s home is his castle, then he must be free to be at home—that is, safe in his person. As such, a man’s “castle” is wherever he is, allowing him to be at home in the world.
Meaningfully, there is no such succor or solicitude for the rights of women and pregnant persons. Indeed, in Dobbs, the pregnant body is rendered coextensive with the public sphere. No longer insulated by the prospect of the constitutional privacy that Roe and Casey made available, the pregnant body is even more obviously an object of public interest, properly subject to state regulation.[165]
While it is true, as Justice Kavanaugh reminds us, that the Court’s decision in Dobbs does not end abortion entirely, but merely returns the issue to the states for democratic deliberation,[166] these assurances seem less comforting when viewed from the vantage point of the transformed public–private divide. Justice Kavanaugh is certainly right that, by its terms, Dobbs “does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion.”[167] But his insistence on Dobbs’s limitations belies the truth of a transformed—and expanded—public sphere. Although so-called blue states may continue to make abortion available, individuals wishing to exercise these rights must affirmatively seek out these enclaves where constitutional privacy still exists. Because their pregnant bodies have been denominated as suitable for public regulation, individuals in inhospitable states must flee the unrelenting publicness of their home jurisdictions in search of the privacy that may be available in another state.[168] Put differently, women must actively pursue privacy—it is not incident to their persons. For praying or gun-toting men, by contrast, there is no need to actively seek privacy. Constitutional protections, and the privacy that underwrites them, are coincident to, and proceed from, the very fact of men’s bodies.
C. Reconceiving the State
The jurisprudence of masculinity completely reorients the landscape of constitutional rights, distorting the traditional public–private divide and recasting male bodies as the living embodiment of the private sphere. But this is not all. Even as it reconfigures the spatial landscape of constitutional theory and the bodies that occupy it, the jurisprudence of masculinity also reimagines the state and state regulation.
1. The State as Antagonist
In both Kennedy and Bruen, the state is figured as an over-encroaching irritant, thwarting men in their exercise of their constitutional rights to wield a gun or pray in public. On this account, the Court’s vindication of constitutional rights restores the proper equilibrium by underscoring the limits of the state’s authority, even as it vests the male body with the authority to transform space and engender constitutional protections.
The state as irritant is perhaps the most generous depiction of the dynamic that Kennedy and Bruen produce. Some might argue that in both cases, the state is depicted as not simply irritating but wholly antagonistic to the exercise of individual rights. This articulation of the relationship between the state and the male rights bearer (and the Court) is perhaps most clearly depicted in Justice Alito’s Bruen concurrence. There, Justice Alito paints a picture in which the exercise of Second Amendment rights is urgent and necessary because of the state’s failures. As Justice Alito recounts, “[o]rdinary citizens frequently use firearms to protect themselves from criminal attack.”[169] Although Justice Alito does not elaborate in his concurrence, at the Bruen oral argument, he made clear that the state’s failure to adequately police crime cultivated the conditions in which ordinary, “law-abiding citizens” were compelled to take up arms to protect themselves.[170] As Justice Alito suggested at oral argument, New York City had so failed to adequately police the flow of illegal firearms into the public sphere that the daily commute of “ordinary people” was transformed into a life-threatening gauntlet.[171]
Indeed, on Justice Alito’s telling, the state’s regulatory impulse was entirely misplaced. Rather than exercising its police power to impose order and protect public safety from the impact of criminals “walking around the streets” with “illegal guns,” the state’s regulatory might was directed instead at law-abiding citizens, who were required to demonstrate a “special need” for a concealed carry license.[172] Justice Alito’s point was straightforward: the state was actively thwarting rights whose exercise was in fact made necessary by the state’s abdication of its regulatory duties. And meaningfully, the Court’s response to this failed state landscape is to credit an expansive vision of the Second Amendment—and in doing so, enable men to take over—indeed, retake—these essential state functions.[173]
The Kennedy majority’s depiction of the Bremerton School District also evinces an obvious disdain for an antagonistic state. In this case, as in Bruen, the majority makes clear that the state’s regulatory energies are misdirected. In Kennedy, the school district, concerned about a possible Establishment Clause challenge[174] and the prospect of students feeling tacitly coerced to participate in the prayer sessions,[175] directed Kennedy to cease praying at the conclusion of each game. In reviewing these rationales, the Kennedy majority is deeply skeptical of the school district’s actions and reasoning. The school district’s Establishment Clause concerns are, in the majority’s view, overblown—the result of the district’s willful blindness to Kennedy’s protected free exercise rights.[176] Indeed, the majority suggests that the entire dispute between Kennedy and the school district is a “self-imposed trap”—the product of the district’s own misguided machinations.[177]
The majority is equally dismissive of the school district’s concerns about student coercion, suggesting that these concerns were merely “a backup” rationale the school district “suppl[ied]” in the event its Establishment Clause concerns proved unavailing.[178] As the majority put it, “[n]ow, [the school district] says, it was justified in suppressing Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray.”[179] On this account, the school district’s concerns are neither sincere nor warranted but manufactured and overstated.
But critically, it is perhaps the majority’s account of the school district’s actions that is overstated. As the dissent notes, the Kennedy majority misstates critical facts that underlie the dispute, mischaracterizing the nature of the state’s actions against Kennedy.[180] According to the dissent, the majority neglects the district’s sincere concerns that Kennedy’s conduct was posing a security risk and was otherwise disruptive. As the dissent maintains, “[t]he record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer at the same time and location.”[181] This was not an isolated incident but a long-standing practice that Kennedy continued, in defiance of official instruction to desist. “The Court ignores this history”[182] and “the severe disruption to school events” that Kennedy’s conduct caused.[183] By limiting its analysis to the Establishment Clause concerns that the school district formally enumerated in its briefs, the majority’s conclusions are not just “divorced from the context and history of Kennedy’s prayer practice,”[184] they paint the state with the brush of doctrinairism.
2. The State as Agnostic or as Ally
While the Court in Kennedy and Bruen regards the state—and state regulation—as an antagonist, thwarting men in the exercise of their constitutional rights, in other contexts, the Court is far more solicitous of the state and its regulatory efforts. In Dobbs, in the context of abortion rights, the Court is not skeptical of the state at all. Indeed, the state is a much-welcomed ally in the project of regulating pregnant bodies and reinforcing gender hierarchies.
The conception of the state as an ally in regulating—and restricting—abortion is evident in the closing paragraphs of the Dobbs majority opinion. Having laid waste to almost fifty years’ worth of abortion jurisprudence, the Dobbs majority turns to the legal standard that will govern future challenges to abortion restrictions.[185] According to the majority, because abortion may not be considered a fundamental right, “rational-basis review is the appropriate standard for such challenges.”[186] As any first-year law student will attest, rational basis review is the standard of review that is most deferential to the state, with courts reviewing challenged laws with a “strong presumption of validity.”[187]
On this account, when states enumerate their rationales for restricting—or prohibiting—abortion, federal courts will view such restrictions generously, secure in the knowledge that the state is an ally in promoting:
[R]espect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.[188]
Meaningfully, though, the state is not simply an ally to the project of restricting reproductive rights. Indeed, the recission of reproductive rights might be understood as a part of a more comprehensive effort to reinforce and entrench gender hierarchies and the cause of masculinity. The Dobbs Court’s perfunctory consideration of an equal protection rationale for abortion rights is exemplary of this impulse. For some time, scholars, commentators, and courts have maintained that the Equal Protection Clause of the Fourteenth Amendment, as much as that Amendment’s Due Process Clause, furnishes a doctrinal home for the abortion right.[189] The argument was also raised in two amicus briefs filed in Dobbs.[190] Despite the argument’s extensive roots in legal scholarship and jurisprudence, the Dobbs majority gave it only glancing consideration.[191] The fact that, in effacing almost fifty years of abortion precedents, the majority was unwilling to seriously entertain the prospect of women’s political and social equality is telling. Despite arguments that abortion laws reinstated and entrenched well-worn sex role stereotypes that consigned women to the home and motherhood, the Dobbs majority stalwartly refused to engage the possibility that such laws were rooted in an effort to maintain traditional gender hierarchies. And in refusing to engage this possibility, the majority further consolidated the power of such hierarchies.
The majority’s dismissive treatment of plausible equal protection arguments makes clear that “the state” goes beyond the individual jurisdictions that may choose to regulate—or restrict entirely—abortion. As the foregoing discussion suggests, the Court itself is an arm of “the state.” And the Court, in its opinion in Dobbs, has done more to facilitate the regulation of abortion than perhaps any other state actor to date. From overruling Roe and Casey to insisting that future courts generously credit proffered rationales for restricting abortion access, the Court has proven itself to be a valuable ally of the anti-choice project, paving the way for hostile jurisdictions to regulate abortion out of existence.
But if the Court is an ally to this regulatory project, part of its allyship lies in its agnosticism to it. To understand this aspect of the relationship between the jurisprudence of masculinity and the Court’s rendering of the state, some context is in order. In retrospect, the Court’s decision overruling Roe and Casey was foretold in its disposition of Whole Woman’s Health v. Jackson,[192] the first in a series of challenges to Texas SB 8, a Texas state law that prohibited abortion at just six weeks of pregnancy.[193] Under the logic of Roe and Casey, which, at the time, were still good law, Texas SB 8 was plainly unconstitutional.[194] Indeed, if subject to traditional federal court pre-enforcement review, SB 8 likely would have been invalidated on the merits, as had been the case with other pre-viability abortion bans.[195]
The problem, of course, was that SB 8 differed significantly from other pre-viability abortion bans. Unlike other pre-viability bans, whose enforcement was left to state officials, SB 8 was consciously crafted to relieve state officials of responsibility for the law’s enforcement.[196] Instead, responsibility for enforcing the law was delegated to private persons who were authorized to sue anyone who participates in or facilitates an abortion.[197]
Purposely engineered to evade federal court review, SB 8’s vigilante-style enforcement mechanism did just that. In an emergency appeal to the Supreme Court on the eve of the law’s effective date, the five members of the Court who would later vote to overturn Roe and Casey allowed the patently unconstitutional law to go into effect on the ground that, because of the novel enforcement scheme, the challenge was nonjusticiable.[198] When SB 8 went into effect on September 1, 2021, it shuttered abortion access in the second-largest state in the Union, sending people of reproductive age fleeing to neighboring jurisdictions to exercise what was, at least for the moment, still a constitutionally protected right.[199]
The brazenness with which five members of the Court condoned an obvious effort to avoid federal review of a constitutional right and allow an unconstitutional law to go into effect was—and continues to be—breathtaking. Indeed, the Court’s actions vis-à-vis SB 8 can be rationalized only with the understanding that these five Justices would eventually eviscerate the right entirely in Dobbs.
The Court’s agnosticism to abortion rights—and its fidelity to the jurisprudence of masculinity—is further evident in the Dobbs majority’s treatment of the reliance interest in abortion rights. Under Planned Parenthood of Southeastern Pennsylvania v. Casey, in determining whether to break with past precedent, federal courts must “gauge the respective costs of reaffirming and overruling a prior case,”[200] including whether overruling a past decision “will upend substantial reliance interests.”[201] In Casey, a plurality of the Court refused to overrule Roe, in part because “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”[202]
In stark contrast to the Casey plurality, the Dobbs majority professes ignorance of any reliance interests that might flow from judicial recognition of a right to abortion. As it explained, “[t]raditional reliance interests arise ‘where advance planning of great precision is most obviously a necessity.’”[203] But according to the Dobbs majority, abortion does not implicate traditional reliance interests “because getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.’”[204]
Having determined that “concrete reliance interests are not present here,” the Dobbs majority then proceeded to discredit Casey’s acknowledgment of those individuals who had “organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail,” as well as Casey’s recognition that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”[205] According to the Dobbs majority, such concerns were too intangible and inchoate to satisfy the requirement of a “concrete” reliance interest. Indeed, on the majority’s telling, such “generalized assertions about the national psyche”[206] contrasted substantially with “concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[207]
The majority’s casual dismissal of women’s reliance interests in the availability of abortion as intangible is entirely consistent with a vision of the state as agnostic. It is also entirely consistent with the jurisprudence of masculinity and its solicitude for constitutional rights that are coded male. As the Dobbs majority underscores, women’s concerns about their ability to control their reproductive capacities and participate meaningfully in society as equal citizens are too amorphous and inchoate to be considered in the stare decisis calculus. Indeed, such concerns are less weighty and concrete than the reliance interests developed in the context of “property and contract rights”[208]—two sets of rights that historically have been coded as male.[209]
Taken together, the Court’s disposition of the SB 8 challenge, coupled with its disdain for women’s reliance interests, suggests the Court’s agnosticism—willful blindness—to the prospect of the exercise of women’s rights. In this regard, the jurisprudence of masculinity not only reconceives the state as an ally in limiting the rights of women but also actively casts the Court (and courts) as an ally. Through both its decisional law, and its agnosticism of established precedent and the reliance interests with which those precedents are associated, the Court has facilitated—and indeed, engendered—a climate in which women’s rights are the subject of skepticism and suppression.
As this part has explained, the Roberts Court’s jurisprudence of masculinity goes beyond simply crediting the rights of men at the expense of women’s rights. It fundamentally recasts the legal landscape to reorder the distinction between public and private space, to recharacterize the relationship between bodies, regulation, and space, and to reconceive the relationship between the courts, citizens, and the state. As the next part maintains, the Court’s fidelity to a jurisprudence of masculinity is neither natural nor inevitable but rather proceeds from the Court’s commitment to a selective understanding of originalism and originalist methodologies.
IV. Engendering Originalism
“History, which interprets the past to understand the present and confront the future, is the least rewarding discipline for a dying species.”
—P.D. James, The Children of Men[210]
Some onlookers would argue that the Roberts Court’s disposition of Dobbs, Kennedy, and Bruen is not guided by a preference for men over women but rather evinces a robust commitment to neutral principles of constitutional interpretation—namely, originalism. Originalism has been described as “a family of constitutional theories” rooted in two core ideas—that the meaning of constitutional text is fixed and does not change over time and that “the original meaning of the constitutional text is binding” and serves to limit the prerogatives and preferences of unelected judges.[211] In divining the meaning of constitutional text, the originalist may look to the intent of the Framers and ratifiers, as well as the public meaning of terms at the time of drafting and ratification.[212]
Viewing Bruen, Dobbs, and Kennedy through an originalist lens, their outcomes are perhaps more obviously comprehensible. The Dobbs majority opinion is a self-conscious, originalist enterprise that considers the status of abortion regulation at common law and at the Founding and interrogates historic attitudes toward abortion.[213] After canvassing a history in which women did not participate directly in the body politic, and in which their identities as citizens largely were mediated through marriage and motherhood,[214] the Dobbs majority concludes that the Fourteenth Amendment cannot sustain the abortion right.[215]
Bruen and Kennedy might also be understood as evincing originalist methods. In Bruen, the majority engages in detailed historical analysis that, despite contrary evidence, invariably arrives at the conclusion that the Founders—and indeed, even their common law progenitors—happily would have assented to the public carrying of firearms.[216] When presented with historical evidence that would contradict this conclusion, the Bruen majority blithely reminds us that “not all history is created equal.”[217] Kennedy is less self-consciously originalist in its methodology, though its discussion of the interaction between the relevant First Amendment Clauses reflects originalism’s influence.[218] Further, the Kennedy majority dismissed the Lemon test, long the arbiter of Establishment Clause violations, as “ahistorical” and “atextual.”[219] In lieu of the Lemon test, the Kennedy majority pointed to “[a]n analysis focused on original meaning and history” that accords with the tenets of originalism.[220]
It is hardly surprising that an interpretive method that prioritizes the Founding and the Founders’ intent yields gendered outcomes. Indeed, gendered outcomes and hierarchies seem to follow ineluctably from the methodology that the Court is using—and that it now imposes on lower courts. The recent district court decision in United States v. Perez-Gallan[221] is exemplary of this impulse. There, a district court, relying on Bruen, struck down as unconstitutional a federal statute prohibiting firearm possession by those subject to restraining orders related to domestic violence.[222] In so doing, the court observed that “consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence” were “glaringly absent from the historical record.”[223]
Similarly, in United States v. Rahimi,[224] the Fifth Circuit invalidated a federal statute that prohibited individuals subject to civil restraining orders for domestic violence from possessing a firearm. In keeping with Bruen, the government identified a range of historical analogues that sought to disarm classes of individuals believed to be dangerous to support the view that the challenged statute was constitutionally sound.[225] The Fifth Circuit, however, concluded that these historical analogues were inapposite.[226] As the court explained, historic laws aimed at “disarming ‘disloyal’ or ‘unacceptable’ groups” were principally concerned with “the preservation of political and social order, not the protection of an identified person from the threat of ‘domestic gun abuse.’”[227] Judge James Ho, who joined the Fifth Circuit’s judgment in Rahimi, wrote separately to note that not only did the disarmament of those subject to civil domestic violence restraining orders lack historical analogues, “there are additional reasons why disarmament based on civil protective orders should give us pause.”[228] Judge Ho continued, noting that civil protective orders, which are often sought by women against male partners, “are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger.”[229] On this account, civil remedies aimed at reducing the threat of domestic violence are inconsistent with the Second Amendment not only because such remedies did not exist at the time of the Founding but because, modernly, they do not address an actual threat sufficient to justify their imposition on Second Amendment rights.
As some commentators have noted, these kinds of outcomes seem preordained under Bruen’s originalist logic.[230] After all, a retrospective analysis that prioritizes the Founding, a time when women were not entitled to participate in the political process and when the state condoned domestic violence, is hardly conducive to upholding a restriction on firearm possession by those involved in domestic violence.[231] In this regard, Perez-Gallan and Rahimi, and their inattention to the conditions of democratic deficit that existed at the time the Second Amendment was drafted and ratified, are paradigmatic of the impact and import of the Court’s jurisprudence of masculinity.
To be sure, those who subscribe to originalism as an interpretive method likely would balk at the prospect of a jurisprudence of masculinity. On this telling, the outcomes in Dobbs, Bruen, and Kennedy are not about gender politics but can be explained by a casual review of constitutional text and the history that undergirds it. Accordingly, the difference in the outcomes in these three cases is self-evident—and self-evidently correct—because the latter two cases vindicate rights that are clearly enumerated in the text of the Constitution and reflect interpretations that are consistent with the original intent of the Framers.[232] In the same vein, the outcome in Dobbs is not dictated by gender politics but by the fact that a right to abortion was never contemplated by the Framers at the Founding.
Of course, the distinction between enumerated and unenumerated rights is not without a gendered valence. As discussed earlier,[233] enumerated rights—that is, the rights enshrined in the Bill of Rights—were conceived of and drafted by a group of all-male and all-white property holders as hedges against the prospect of a tyrannical state. Given that the individuals assumed to be interacting with the state at that time were explicitly understood to be men, it is hardly surprising that these enumerated protections tend to code male and reinforce gender hierarchies. At the time of the Founding, these rights, many of which explicitly concern property and contract interests at a time when women lacked the ability to hold property or execute contracts, were essential to protecting and preserving men’s power over their property interests (whether real or chattel).
Relatedly, unenumerated rights tend to code female. In the Court’s jurisprudence, the rights that have emerged as the paradigmatic examples of unenumerated rights are the rights of intimate life—that is, the right to marry, the right of parents to raise their children in the manner of their choosing, the right to procreate, the right to live among family members, and the right to privacy—and its off-shoots, the right to contraception and the right to abortion.[234] These were the rights that protected the home and family—historically the province of women—from the vicissitudes of the state.
This is not to say that there is no textual support in the Constitution for unenumerated rights. Indeed, the Ninth Amendment, one of the Bill of Rights guarantees, makes clear that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[235] Despite the Ninth Amendment’s explicit contemplation of unenumerated rights, modernly, there has been considerable skepticism of such rights.[236] While enumerated rights are understood as “fundamental” rights entitled to the most robust constitutional protections, for the Roberts Court, unenumerated rights are considered fundamental only if they are rooted in the nation’s history and traditions or in the Framers’ understanding of ordered liberty.[237] Under this rubric, which again prioritizes history and tradition, it is hardly surprising that unenumerated rights of heart and home face such deep-seated skepticism and antipathy.[238] These are the rights that are likely to be invoked by those who would not have been counted among the body politic at the Founding.
And while originalism fetishizes the Founding, this era is not the only moment of constitutional significance. And while some scholars may argue that constitutional moments abound,[239] we can at least agree that the drafting and ratification of the Reconstruction Amendments in the wake of the Civil War is another moment of deep significance in constitutional interpretation. Thus, while it is true that attention to the intent and understanding of the Founders can tell us something about constitutional text and its proper interpretation, it cannot tell us everything. Attention to other moments of constitutional significance—Reconstruction, for example—might enhance our understanding of the Constitution and its text more generally.
The Reconstruction Amendments were drafted and ratified in the wake of the Civil War with explicit antislavery and abolitionist underpinnings.[240] The Thirteenth Amendment was intended to both abolish the institution of slavery and prevent its revivification in other forms,[241] while the Fifteenth Amendment sought to make citizens of newly freed Black men by giving them the vote and making them the political equals of their white counterparts.[242] The Fourteenth Amendment was broader still. It was consciously intended to grant the various attributes of freedom and citizenship to the formerly enslaved, including formerly enslaved women. To do so, Section 1 of the Fourteenth Amendment provided sweeping protections for a full complement of fundamental rights and guaranteed equal citizenship for the formerly enslaved.[243] In introducing the amendment in the Senate in 1866, only a year after the Civil War’s conclusion, Senator Jacob Howard underscored its mission “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”[244]
To be sure, the Fourteenth Amendment’s guarantees were not unmoored from the Founding period and the 1787 Constitution. As its drafters acknowledged, the Fourteenth Amendment’s broad guarantee of fundamental rights was rooted in the Declaration of Independence’s acknowledgment of “certain unalienable Rights,”[245] as well as the Ninth Amendment’s insistence that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[246] Put simply, the Amendment was intended to enshrine in constitutional text the values of the Declaration of Independence and to underscore the view that certain rights and values were so fundamental that they need not be explicitly stated in constitutional text but rather proceeded from the document’s broad understanding of the principles of liberty and equality.
With this in mind, the Fourteenth Amendment’s protections for fundamental rights and equal citizenship were painted in broad brushstrokes with the terms “liberty” and “equal protection of the laws” reflecting the central interest in casting off enslavement and protecting the fledgling freedom of the formerly enslaved. But despite the broad terminology, the debates over the Amendment, and the public discourse surrounding its drafting and ratification, made clear what these terms encompassed. In providing constitutional protections for new citizens transitioning from enslavement, the drafters of the Fourteenth Amendment consciously contemplated and cataloged the attributes that distinguished the citizen from the slave.[247] Unlike the enslaved, citizens controlled their own labor. Citizens were able to contract civilly recognized marriages and raise their children in the manner of their choosing.
As the drafters of the Fourteenth Amendment acknowledged, these basic freedoms—marriage, bodily autonomy, and family integrity—were understood broadly as fundamental human rights that had been wholly absent in the lives of the enslaved.[248] Not only did enslaved persons lack control over their labor,[249] they also lacked control over their bodies. They could be whipped, tortured, or overworked.[250] As chattel, they could be sold at an owner’s whim.[251] Their intimate relationships were ineligible for state recognition in civil marriage. They lacked any semblance of family integrity and were utterly at the mercy of their masters and slavery’s economy.
Accordingly, the drafters of the Reconstruction Amendments infused their understanding of these new constitutional texts with these concerns for family integrity and bodily integrity. For example, the drafters of the Thirteenth Amendment regarded “the rights of a husband to his wife—the marital relation,” “the right of a father to his child—the parental relation,” and “the right of a man to the personal liberty with which he was endowed by nature and by God” as “great fundamental natural rights” that “you cannot take away.”[252] When the abolition of chattel slavery failed to address these concerns—southern states responded by enacting Black Codes designed to reinstate core attributes of enslavement[253]—these principles were channeled into the Fourteenth Amendment.[254] During the debates over the Fourteenth Amendment, Senator John Sherman underscored the importance of securing family and bodily integrity for newly freed Blacks.[255] After all, the trappings of freedom and citizenship would always be elusive “[w]here the wife is the property of the husband’s master, and may be used at will” and “where children are bred, like stock, for sale.”[256] On this view, “no act of ours can fitly enforce their freedom that does not contemplate for them the security of home.”[257]
Critically, the prospect of “security of home” had particular salience for newly freed Black women. It was clearly understood, both in congressional debates and in the popular discourse of the time, that, for enslaved women, the bodily autonomy that characterized freedom and citizenship was not simply about control of one’s labor. It necessarily involved eliminating the prospect of the sexual coercion, sexual violence, and forced reproduction that were endemic to slavery.[258]
To be sure, these aspects of slavery would have been well-known to the members of the Reconstruction Congress and the broader public. Abolitionist texts routinely highlighted the sexual economy of slavery and the indignities visited upon Black women. In pondering the nature of freedom, Uncle Tom’s Cabin, Harriet Beecher Stowe’s antislavery tome, which was the most popular book of the antebellum period, spoke of “the right of a man to be a man, and not a brute; the right to call the wife of his bosom his wife, and to protect her from lawless violence.”[259] Stowe’s reference to “lawless” violence no doubt referred to rape—the unlawful carnal knowledge of a woman who was not the perpetrator’s wife—and the forced reproduction that were routine aspects of enslaved women’s lives.[260] In her 1861 autobiography, Harriet Jacobs, a former slave who was forced to bear her master’s child, made the point more delicately. “Slavery is terrible for men[,]” she wrote, “but it is far more terrible for women.”[261]
This is all to say that principles of liberty and equality, and these broad concerns about the bodily integrity of enslaved men and women, infused the debates over the Fourteenth Amendment. To be clear, an originalist understanding of the Fourteenth Amendment and its guarantees must acknowledge the Amendment’s roots in the denunciation of “slavery, and the measures designed to protect it,” as “irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure.”[262] This is why the Roberts Court’s originalism, which does not meaningfully engage the history of Reconstruction and its relationship to the Founding and the present, is so puzzling. Justice Thomas’s originalist account of the interaction between the Second and Fourteenth Amendments is exemplary of this confusion.
In the majority opinion in Bruen, Justice Thomas seems to grasp the import of the Reconstruction Amendments in an originalist interpretation of the Second Amendment’s text. A large part of the majority opinion in Bruen—and indeed, a significant portion of Justice Thomas’s writing on the Second Amendment—is preoccupied with surfacing the relationship between the right to keep and bear arms and the understanding of citizenship at the Founding and during Reconstruction.[263] In Bruen, Justice Thomas engages in an extended historical analysis documenting the postbellum understanding of the right to bear arms, the efforts undertaken to prevent newly freed Blacks from exercising this crucial indicium of citizenship, and the horrific episodes of racialized violence that these efforts spawned.[264]
Justice Thomas’s effort to imbricate the history of the Second Amendment with a history of postbellum racial violence is not altogether unexpected. In 2010’s McDonald v. City of Chicago, he previewed many of the historical arguments deployed in Bruen.[265] In McDonald, Justice Thomas agreed with the majority that the Second Amendment had been incorporated as to the states, though he wrote separately to make the case that the Privileges or Immunities Clause of the Fourteenth Amendment was the better doctrinal home for incorporation.[266] In so doing, Justice Thomas specifically repudiated the logic of United States v. Cruikshank, an 1875 case in which the Supreme Court held that, despite the ratification of the Fourteenth Amendment, the Bill of Rights guarantees, including the Second Amendment’s right to keep and bear arms, did not apply to restrain private actors or state governments.[267]
Critically, the factual circumstances that gave rise to Cruikshank involved the Colfax Massacre of 1873, in which an armed mob of white militiamen slaughtered dozens of newly freed Blacks, many of whom were unarmed.[268] In his McDonald concurrence, Justice Thomas connected Cruikshank and its failure to protect the individual’s right to bear arms to the campaign of racialized violence waged against newly freed Blacks during Reconstruction and Redemption, straight through to Jim Crow and the racialized violence of lynching.[269] According to Justice Thomas, Cruikshank, which rejected the argument that the right to bear arms was a privilege or immunity of national citizenship, set the stage for decades of racial terrorism by “enabl[ing] private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery.”[270]
Justice Thomas’s meditation on the interaction between the Fourteenth and Second Amendments in McDonald and Bruen serves many purposes—both interpretive and political. As an initial matter, the history that Justice Thomas sketches underscores that Second Amendment rights are fundamental—and not, as he has argued vehemently, “a second class right.”[271] It roots the Second Amendment and its protections in two significant constitutional traditions—the Founding and Reconstruction. As importantly, Justice Thomas’s narrative also reinforces political tropes. It underscores the view, often trumpeted by groups like the National Rifle Association, that gun rights are civil rights.[272] As with Masterpiece Cakeshop and Kennedy, where white, male Christians were improbably figured as minorities victimized by societal discrimination,[273] here the historical narrative of thwarted gun rights unites the contemporary (white) gun owner with the past victims of racialized terror in their shared denial of Second Amendment rights. In so doing, Justice Thomas reinforces the trope of the state as antagonist—then, as now, thwarting the exercise of core civil rights and cultivating the conditions in which lawless violence may occur.
But even as this originalist narrative serves a range of purposes, it is woefully incomplete. Justice Thomas presents the history of the Second and Fourteenth Amendments as focusing on the rights of Black men. In McDonald, for example, he connects the history of the Colfax Massacre and the slaughter of freedmen to the racialized violence of the Jim Crow era and the lynching death of Emmett Till—all Black men.[274]
Justice Thomas is absolutely correct to focus on race, equality, and abolition in his originalist understanding of the Fourteenth Amendment and its implications for other constitutional rights. As his account of the Second Amendment suggests, the Reconstruction Amendments, and the Fourteenth Amendment particularly, were undergirded by an abolitionist ethos that sought to recast the slave as a citizen.[275] But as the history recounted here makes clear, Justice Thomas’s account of Reconstruction and the Reconstruction Amendments is selective, overlooking much. Indeed, his recounting of the Colfax Massacre is evidence of this selectivity. In McDonald, Justice Thomas foregrounds the newly freed Black men who were massacred by the marauding white mob. But he neglects to acknowledge that the victims of the Colfax Massacre were not limited to unarmed Black men but also included unarmed Black women, many of whom were violently raped and brutally murdered by the very same mob.[276]
To be clear, these omissions are not simply oversights; they are choices. Choices to ignore—and erase—the Black women who were also victimized because of states’ failure to honor the guarantees of the Reconstruction Amendments. More troublingly, the Roberts Court itself continues this project of omission and erasure in its approach to originalism and constitutional history. Not only does the Roberts Court’s originalism reify the history of the 1787 Constitution—a document literally drafted and ratified in conditions of democratic deficit—it is selective and itinerant in its understanding of constitutional history more generally. Indeed, originalism, as practiced by the Roberts Court and its adherents, completely overlooks the history and context that undergirds the Reconstruction Amendments.
The Dobbs majority’s engagement with constitutional text and history is exemplary of these failures. As discussed above, the history of Reconstruction and the Reconstruction Amendments makes very clear that the Amendments’ Framers were preoccupied with two concerns: (1) transforming the formerly enslaved into citizens; and (2) aligning the Founding values of fundamental freedoms and equality with the Constitution’s text.[277] As a consequence, the Framers of the Reconstruction Amendments spoke at length about the prospect of unenumerated rights, and they made clear that their understanding of liberty and equality required protecting and vindicating the bodily integrity of formerly enslaved men and women and ensuring the security of their homes and families.[278]
But this account of the Fourteenth Amendment and Reconstruction is utterly absent in the Dobbs majority opinion. Instead of focusing on what the Framers of the Fourteenth Amendment thought and understood when they were drafting the text at issue in Dobbs, the Dobbs majority’s originalism is stubbornly limited to the views of common law theorists like Sir Matthew Hale,[279] who popularized the marital rape exemption[280] and presided over the hanging of two women as witches,[281] and William Blackstone,[282] whose Commentaries on the Laws of England enshrined the principle of coverture that required married women’s identities and legal rights to be subsumed under the broader scope of their husbands’ identities.[283]
The reliance on these two men, as opposed to Thaddeus Stevens, Lyman Trumbull, or any of the other figures involved in the drafting and ratification of the Fourteenth Amendment is confounding, though not entirely surprising. This is the originalism that the jurisprudence of masculinity requires—and indeed, demands. To persist in the prioritization of (white) men and their rights, the pesky details of (Black) women’s enslavement and concerns about their bodily integrity must be put to the side and forgotten.
To be clear, originalism, on its face, knows no gender.[284] As an interpretive method, it relies entirely on the recounting of historical facts. But this acknowledgment reveals the lie—and the failings—of the Roberts Court’s originalism, which, like the jurisprudence of masculinity, is selective and outcome-driven. In the hands of the Roberts Court, “doing history” is not the careful excavation of empirical truths for the purpose of illuminating some contemporary issue. It is instead an expedition in which facts and sources will be cherry-picked and prioritized to serve a particular outcome—as it must be if it is to succeed in shrinking the constitutional landscape of women’s rights while expanding the terrain of men’s rights.
V. Jurisprudence and Demosprudence
If the Roberts Court has prioritized men and their rights, what constitutional avenues are left for women to vindicate their rights? Having foreclosed the prospect of jurisprudential protection for abortion as a fundamental right or as an indicium of women’s equality, the Dobbs majority invites women to seek succor in the political process. As Justice Alito explains, “[o]ur decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”[285] After all, he reminds us, “[w]omen are not without electoral or political power.”[286]
What does it mean, though, to require women to prosecute their interests in majoritarian politics? To compel them to seek the vindication of their rights through demosprudence,[287] rather than jurisprudence. In some respects, the prospect is rather appealing—at least as the Court’s conservatives have imagined it. In the years before a 6–3 conservative supermajority was cemented on the Court, its conservatives were often in dissent on critical “culture war” issues, like gay rights and same-sex marriage. In those separate writings, the Court’s dissenters waxed lyrical about the prospect of delegating the resolution of fraught questions to the democratic process. Democratic deliberation, they insisted, was preferable to the Court “imposing . . . [people’s] views in [the] absence of democratic majority will.”[288] Indeed, “[o]ne of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”[289] Instead, they may legislate more nuanced outcomes than the Court is able to produce through the blunt instrument of jurisprudence.
As importantly, the dissenters have insisted that resolving an issue through adjudication, rather than democratic deliberation, somehow deprives those invested in the issue of the pleasure of working hard to persuade their fellow citizens to adopt their preferred view. According to Justice Scalia, “public debate over same-sex marriage displayed American democracy at its best,” with “[i]ndividuals on both sides of the issue passionately, but respectfully, attempt[ing] to persuade their fellow citizens to accept their views.”[290] “Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”[291]
Perhaps there is something noble about persuading one’s fellow citizens of the rightness of one’s cause. But meaningfully, neither the Bruen majority nor the Kennedy majority seemed particularly concerned about usurping the fraught questions of gun control and public prayer from democratic processes, depriving the Bruen plaintiffs and Coach Kennedy of the satisfaction of convincing their fellow citizens of their need to publicly carry a gun or engage in public prayer. Indeed, in both cases, the Court seemed willfully blind to the prospect of democratic engagement and deliberation entirely. After all, New York’s concealed carry permitting regime was the product of democratic engagement and enactment in the state legislature.[292] Likewise, the school district officials that considered the issue of Coach Kennedy’s midfield prayers were democratically elected by, and represented, Bremerton’s citizens.[293] Despite these clear indicia of democratic engagement on these two fraught issues, the urgent interest in allowing the people to speak is absent in both Bruen and Kennedy.
Leaving the inconsistency in the Court’s interest in democratic deliberation to the side, what does it mean to take the Dobbs majority at its word? What does it mean to consign the recognition of women’s fundamental rights and equality to the political process? It is early days to be sure, but it seems clear that leaving abortion to the people is not the noble enterprise that the Court’s conservatives envisioned in their teeth-gnashing over sodomy and gay marriage. And perhaps that is because no actor has done more to distort the landscape of democratic deliberation—that is, to make it difficult for individuals to register their policy preferences at the ballot box—than the Court itself.
Consider the Court’s decision in Rucho v. Common Cause, in which it concluded that there was no workable formula for identifying impermissible partisan gerrymanders.[294] Lacking a workable formula, the Court declared the issue of partisan gerrymanders a nonjusticiable political question, removing the prospect of federal court oversight of state legislatures’ efforts to draw lopsided districting maps.[295] In the absence of federal court oversight, it is now incumbent on state courts and governors to rein in the legislature’s worst impulses.[296] Left unchecked, partisan gerrymandering allows political parties to consolidate their authority, cultivating the conditions in which more extreme laws are enacted and objecting voters have few opportunities to make their voices heard.[297]
The dangers of partisan gerrymandering in the effort to vindicate women’s rights, and abortion rights particularly, can be glimpsed in state-level post-Dobbs developments in Kansas and Indiana. In August 2022, both states considered the question of abortion rights at the state level, albeit through meaningfully different political mechanisms. In Kansas, a ballot initiative put to voters the question of whether existing abortion protections should be retained.[298] Kansans voted 58.97% to 41.03% to retain protections for abortion rights in the state constitution.[299] Just three days later, on August 5, 2022, the Indiana state legislature enacted one of the nation’s most restrictive abortion laws.[300]
The difference in outcomes in these two “red” states may be attributed to the vehicle by which constituents registered their policy preferences. In Kansas, voters could register their choices directly through the ballot initiative process, whereas in Indiana, constituents’ policy preferences were mediated through the mechanism of representative democracy.[301] One might argue that representatives’ natural instincts to satisfy the preferences of constituents is heightened—and indeed, distorted—in states like Indiana, where the state legislature reflects the impact of partisan gerrymandering.[302]
As importantly, the Roberts Court has allowed politicians to insulate themselves from the will of the people in other ways. In 2013’s Shelby County v. Holder, the Court invalidated the Voting Rights Act (VRA) preclearance formula.[303] Under the preclearance regime, states with a history of engaging in voting discrimination were required to first seek “preclearance” from a federal court or the Department of Justice before implementing any changes to their voting laws and rules.[304] After Shelby County, states were under no obligation to seek preclearance review, and as a consequence, many took more assertive steps to pass voting laws that might have discriminatory or suppressive effect on minority voters.[305]
The Court’s 2021 ruling in Brnovich v. Democratic National Committee[306] likely will exacerbate the impact of suppressive voting laws.[307] There, the Court further hobbled the embattled VRA by concluding that a law’s discriminatory effect, without more, will generally be insufficient to establish a violation of Section 2 of the VRA.[308] The Court’s decision in Brnovich compounds the impact of Shelby County by further narrowing the avenues under which discriminatory voting laws may be challenged.[309]
In October Term 2022, the Roberts Court is likely to continue its assault on the infrastructure of democracy and voting rights. In Merrill v. Milligan, the Court will consider whether Section 2 of the VRA can be a potent remedy for racial gerrymanders that dilute the voting power of racial minorities.[310] In Moore v. Harper,[311] it will determine—no doubt deploying its selective vision of originalism—whether Article I’s Elections Clause gives exclusive control over federal elections to state legislatures.[312]
This is all to say that it is likely not coincidental that the Court has consigned the issue of abortion and women’s rights to the democratic process at the very moment it is making American democracy less democratic. The Court has effectively turned the issue of abortion over to state legislators who, because of gerrymandering and voter suppression laws, “are increasingly removed from the voters’ will”—and “increasingly extreme on issues of reproductive rights and women’s self-determination.”[313] As a result, true democratic deliberation on the abortion question will be elusive.
But perhaps such an outcome is to be expected from a Court that “is itself a product of minority rule.”[314] The three Trump-appointed Justices who solidified the Roberts Court’s 6–3 conservative supermajority “were [all] confirmed by senators who collectively represented fewer people than the senators who voted against them.”[315] Moreover, those three Justices were appointed by a president who received fewer total votes than the opposing Democratic candidate.[316]
This is all to say that, given the Roberts Court’s efforts to hamstring democracy and democratic processes, its recent appeal to democratic deliberation in Dobbs comes up short.[317] If distorted democracy is the only recourse that women have for vindicating their rights and their status as citizens, they are already behind the eight ball. Indeed, compare this “demosprudence” and the prospect of women putting their rights and status as citizens to a majority vote—in multiple jurisdictions across the country—to the jurisprudence of masculinity, which figures men as beleaguered and besieged victims of the state who deserve both the law’s protection and the Court’s solicitude. The comparison is striking. And perhaps that is the point. The Court’s efforts to consign women’s rights to the demos is part and parcel of its efforts to construct and bolster a constitutional and electoral landscape by, for, and about men.
VI. Conclusion
I thought I understood his kind: the petty bureaucrats of tyranny, men who relish the carefully measured need of power permitted to them, who need to walk in the aura of manufactured fear, to know that the fear precedes them as they enter a room and will linger like a smell after they have left, but who have neither the sadism nor the courage for the ultimate cruelty. But they need their part of the action. It isn’t sufficient for them, as it is for most of us, to stand a little way off to watch the crosses on the hill.
—P.D. James, The Children of Men[318]
In 1992, alarmed at reports of Britain’s declining birthrate, famed British mystery writer P.D. James made a departure from her usual “whodunit” fare. Instead of crime scenes and red herrings, James conjured a profoundly dystopian landscape in which universal male sterility condemns the world’s human population to imminent extinction.[319] In the face of almost certain human extinction, the nation is now governed by dictatorial Warden Xan Lyppiatt, who governs with authoritarian zeal while nonetheless insisting that his government is a model of egalitarianism.[320]
When it was published in 1992, The Children of Men’s dystopian vision of 2027 seemed farfetched and fantastical. After all, such a potent cocktail of authoritarianism, human extinction, and reproductive control could only be the stuff of fiction. Today, however, the novel’s dystopian themes (and details) are, in many ways, unsettlingly familiar. At bottom, the 2027 of James’s imagining is a world in which men in high places call the shots, even as the health and well-being of the society below buckles under the weight of their judgments.
The Court’s October Term 2021 will always be remembered for the Court’s evisceration of Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and the constitutional right to abortion. But the full impact of this term goes beyond Dobbs and its impact on American women. As this Address explains, in other cases that have received far less attention than Dobbs, the Court has prioritized and privileged “male” rights and the men who seek to exercise them. In so doing, the Roberts Court has quietly sown the seeds of a jurisprudence of masculinity that prioritizes and protects men and their rights—even as it consigns women and their rights to the uncertainties of a distorted democracy.
To be sure, this jurisprudence of masculinity has been quietly percolating for some time in cases that have prioritized free speech, gun rights, and property rights. But October Term 2021 is perhaps notable in the degree to which these seemingly disparate jurisprudential threads came together to reveal a tapestry of rights for and about men.
As the Court proceeds to October Term 2022, new cases will provide fresh ground for tilling the seeds of a developing jurisprudence of masculinity. The question of course is whether this “restless and newly constituted Court”[321] will see fit to continue the work of refashioning the constitutional order in men’s image.
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
Roe v. Wade, 410 U.S. 113 (1973); Dobbs, 142 S. Ct. at 2242, 2284.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Dobbs, 142 S. Ct. at 2242.
Dobbs, 142 S. Ct. at 2284 (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”).
Id. at 2243.
In thirteen states, “trigger laws,” which effectively ban abortions upon the Court’s decision to overturn Roe v. Wade, went into effect. See Elizabeth Nash & Isabel Guarnieri, 13 States Have Abortion Trigger Bans—Here’s What Happens When Roe Is Overturned, Guttmacher Inst. (June 6, 2022), https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned [https://perma.cc/8RQX-JCA6]. In a handful of states, “zombie laws,” pre-Roe abortion restrictions that were never repealed and remained on the books in a state of desuetude, may now be enforced to limit abortion access. See Shannon Muchmore, ‘Chaos’ from State Abortion Bans Going into Effect Will Have Legal, Criminal Implications for Providers, Healthcare Dive (June 24, 2022), https://www.healthcaredive.com/news/chaos-state-abortion-bans-roe-physicians/626013/ [https://perma.cc/EHK5-FWKW]. Other states have taken steps to clarify and strengthen abortion bans. And yet others will maintain abortion access and will codify the abortion right either in new laws or in state constitutional amendments. See Tracking the States Where Abortion Is Now Banned, N.Y. Times, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://perma.cc/E792-2CMH] (Dec. 30, 2022, 11:05 PM) (listing which states have banned abortion and which states have protected abortion). The momentum behind the shift in where reproductive health care will be available is also being accelerated by several major corporations such as Amazon, Disney, JPMorgan Chase, and Microsoft, which have already communicated and are examining policies to cover costs for abortions in other states. See Jacqueline Ganun & Dustin Jones, JP Morgan, Disney Join Wave of Companies That’ll Cover Employee Abortion Travel Costs, NPR (June 24, 2022, 2:14 PM), https://www.npr.org/2022/06/24/1107419127/jp-morgan-disney-companies-employee-abortion-travel-cost [https://perma.cc/33X3-QCWH]; Barbara Ortutay et al., Companies from Amazon to JPMorgan Pledged to Cover Abortion Travel Costs. But It’s Not Clear How and If They’ll Be Able to Do So, Fortune (July 5, 2022, 3:40 AM), https://fortune.com/2022/07/05/abortion-travel-costs-promised-by-companies-from-amazon-to-jpmorgan-may-be-hard-to-cover/ [https://perma.cc/HU8D-G2AB].
Michelle Moulton, War on Women Report: States Come for Abortion Care; 10 Anti-LGBTQ Bills; ‘Freedom’ Is Hypocrisy, Ms. Mag. (July 13, 2022), https://msmagazine.com/2022/07/13/supreme-court-post-roe-texas-abortion-care-clinics-shut-down-july-4-brittney-griner-russia-anti-lgbtq-education-period-tracking-apps-biden-women/ [https://perma.cc/3NZY-9KYY].
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (extending the Second Amendment right to keep and bear arms to the public sphere); McDonald v. City of Chicago, 561 U.S. 742, 767, 778 (2010) (concluding that the Second Amendment is incorporated as to state governments through the Due Process Clause of the Fourteenth Amendment); District of Columbia v. Heller, 554 U.S. 570, 627–28 (2008) (holding that the Second Amendment protects an individual right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home).
See, e.g., Shurtleff v. City of Boston, 142 S. Ct. 1583, 1593 (2022) (holding that the city violated a Christian group’s First Amendment rights when it denied a request to raise the group’s flag over City Hall); Carson v. Makin, 142 S. Ct. 1987, 2001–02 (2022) (holding that a state’s voucher program, which limited voucher use to secular private schools, discriminated against religious private schools in violation of the Free Exercise Clause); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2415–16 (2022) (concluding that a school district’s adverse actions against a football coach’s midfield prayers violated his rights to free speech and free exercise of religion); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2252, 2262–63 (2020) (holding that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the Free Exercise Clause of the Constitution); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2017–18, 2024–25 (2017) (holding that a state program that denied a grant to a religious school for playground resurfacing while providing grants to similarly situated nonreligious groups, violated the Free Exercise Clause).
See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2069, 2080 (2021) (holding that a state regulation that required agricultural employers to allow labor organizers to regularly access their property for the purposes of union recruitment constituted a per se taking under the Fifth Amendment); Knick v. Township of Scott, 139 S. Ct. 2162, 2167 (2019) (“A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it”); Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 601, 605 (2013) (holding that a water management district did not avoid the limitations of the unconstitutional conditions doctrine by conditioning approval of a land permit on the property owner’s mitigation of environmental damage).
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
Bruen, 142 S. Ct. 2111.
Kennedy, 142 S. Ct. 2407.
Dobbs, 142 S. Ct. at 2284 (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”).
Id. at 2244–45, 2253, 2262 (arguing that “in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions”).
Id. at 2262, 2265 (quoting Pearson v. Callahan, 555 U.S. 223, 233 (2009)) (concluding that stare decisis is “at its weakest when we interpret the Constitution” (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997))).
David Cole, The Supreme Court Embraces Originalism—and All Its Flaws, Wash. Post (June 30, 2022, 7:00 AM), https://www.washingtonpost.com/opinions/2022/06/30/supreme-court-originalism-constitution/ [https://perma.cc/EF9L-CHN2].
Dobbs, 142 S. Ct. at 2242 (“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . .”).
Id. at 2245 (“The Constitution makes no express reference to a right to obtain an abortion . . . .”).
Id. at 2245–46 (noting that to be recognized as an unenumerated right, those who claim a fundamental right to abortion “must show that the right is somehow implicit in the constitutional text”).
Id. at 2246–56 (analyzing common law prohibitions on abortion).
Id. at 2257 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
Id.
Id. (first quoting Roe v. Wade, 410 U.S. 113, 150 (1973) (emphasis omitted); and then quoting Casey, 505 U.S. at 852)) (noting that both Roe and Casey used the term “potential life”).
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022); see Jessica Gresko, Supreme Court Expands Gun Rights, with Nation Divided, AP News (June 23, 2022), https://apnews.com/article/supreme-court-guns-decision-58d01ef8bd48e816d5f8761ffa84e3e8 [https://perma.cc/E48T-E9U7].
District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008).
McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).
See, e.g., Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433, 1439–41 (2018) (discussing the shift in the Court’s approach to the Second Amendment).
Bruen, 142 S. Ct. at 2122–23 (quoting N.Y. Penal Law § 400.00(2)(f) (McKinney 2017)).
Id. at 2135.
Id. at 2122–23 (quoting Penal § 400.00(2)(f)).
Klenosky v. New York City Police Dep’t, 428 N.Y.S.2d 256, 257 (App. Div. 1980).
In re Martinek, 743 N.Y.S.2d 80, 81 (App. Div. 2002).
Bruen, 142 S. Ct. at 2121, 2131.
Id. at 2131.
See id.
Id. at 2133 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
Id. (quoting Brief for Respondents at 34, Heller, 554 U.S. 570 (No. 20-843)).
Id. at 2134.
Id.
Id.
Id. (quoting Heller, 554 U.S. at 584).
See Heller, 554 U.S. at 626, 629 (discussing various state courts’ prohibitions of concealed firearms in public and guns in “sensitive areas”).
Bruen, 142 S. Ct. at 2134.
Id. at 2134–35.
See, e.g., Eric Ruben, An Unstable Core: Self-Defense and the Second Amendment, 108 Calif. L. Rev. 63, 78 (2020) (“[J]udges rely on Heller’s emphasis on the acute need for self-protection within the home to apply stricter scrutiny to restrictions affecting home possession than to restrictions affecting public possession.”); C.D. Christensen, The “True Man” and His Gun: On the Masculine Mystique of Second Amendment Jurisprudence, 23 Wm. & Mary J. Women & L. 477, 524–25 (2017) (“Perhaps one immediate and particularly concerning implication of Heller’s reading of the Second Amendment, and McDonald’s incorporation of the same, is the potential for a constitutionalized Castle Doctrine defense . . . .”).
See 3 William Blackstone, Commentaries *288 (“[E]very man’s house is looked upon by the law to be his castle.”); 3 Edward Coke, The Institutes of the Laws of England *162 (“[A] man’s house is his castle . . . for where shall a man be safe, if it be not in his house?”).
See Jeannie Suk, The True Woman: Scenes from the Law of Self-Defense, 31 Harv. J.L. & Gender 237, 241–42 (2008).
Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2415–16 (2022). In addition to being cinematic, the facts of Kennedy are apparently in dispute, with the dissent chiding the majority for painting an incomplete and inaccurate portrait of the factual context that gave rise to this constitutional challenge. Id. at 2435 (Sotomayor, J., dissenting) (“As the majority tells it, Kennedy, a coach for the District’s football program, ‘lost his job’ for ‘pray[ing] quietly while his students were otherwise occupied.’ The record before us, however, tells a different story.” (alteration in original) (internal citation omitted)).
Id. at 2435 (second alteration in original).
Id.
The locker room prayers predated Kennedy’s tenure as a public-school coach, though he “subsequently began leading those prayers too.” Id. at 2434–36; see also Adam Liptak, Supreme Court Leans Toward Coach in Case on School Prayer, N.Y. Times (Apr. 25, 2022), https://www.nytimes.com/2022/04/25/us/politics/supreme-court-prayer-football-coach.html [https://perma.cc/S6FF-85KD].
Kennedy, 142 S. Ct. at 2416 (majority opinion) (“Like many other football players and coaches across the country, Mr. Kennedy made it a practice to give ‘thanks through prayer on the playing field’ at the conclusion of each game.”).
Id. (“Initially, Mr. Kennedy prayed on his own.”).
Id. (“But over time, some players asked whether they could pray alongside him. Mr. Kennedy responded by saying, ‘This is a free country. You can do what you want.’” (internal citations omitted)).
Id. at 2436 (Sotomayor, J., dissenting).
Id. (“The District also learned that students had prayed in the past in the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too.”).
Id. at 2416–17 (majority opinion).
Id. at 2437 (Sotomayor, J., dissenting).
Id. at 2418 (majority opinion); id. at 2434 (Sotomayor, J., dissenting); see also Sabrina Tavernise & Adam Liptak, The Supreme Court Considers a Football Coach’s Prayers, N.Y. Times: The Daily (Apr. 27, 2022), https://www.nytimes.com/2022/04/27/podcasts/the-daily/school-prayer-supreme-court.html? [https://perma.cc/9NKR-LCCH] (noting that Kennedy “publicized his dispute with the school district and drew attention to it, and crowds came and the press covered it,” and observing that the publicization of the dispute and the midfield prayers is “in tension with” Kennedy’s insistence “that this is purely private conduct”).
Kennedy, 142 S. Ct. at 2416–19 (majority opinion); id. at 2438 (Sotomayor, J., dissenting); see also id. at 2439 (Sotomayor, J., dissenting) (noting the school district’s concerns that Kennedy’s “conduct raised Establishment Clause concerns, because ‘any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given [his] prior public conduct, overtly religious conduct’” (alteration in original)).
Id. at 2419 (majority opinion).
Id. at 2415–16.
Id. at 2421–22 (“No one questions that he seeks to engage in a sincerely motivated religious exercise.”).
Id. (“Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule.” (citing Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878 (1990))).
Id. at 2424.
Id. (quoting Lane v. Franks, 573 U.S. 228, 240 (2014)).
Id. at 2425.
Id. at 2416, 2425.
Id. at 2424.
Id. at 2426–27.
Id. at 2426.
Id. at 2427; Lemon v. Kurtzman, 403 U.S. 602 (1971).
Kennedy, 142 S. Ct. at 2427 (maintaining that the courts below “overlooked” the many “shortcomings” that had prompted the Court to “long ago abandon[] Lemon” (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2080 (2019))).
Id. at 2431 (“Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.”).
Id. at 2426–27.
Id. at 2427 (emphasis added).
Id.
See, e.g., Adam Liptak, Supreme Court Strikes Down New York Law Limiting Guns in Public, N.Y. Times (June 23, 2022), https://www.nytimes.com/2022/06/23/us/supreme-court-ny-open-carry-gun-law.html [https://perma.cc/6SPL-3N3E] (discussing Bruen in the context of the gun rights and gun control debate); see also Robert Barnes & Ann E. Marimow, Supreme Court Finds N.Y. Law Violates Right to Carry Guns Outside Home, Wash. Post (June 23, 2022, 10:48 AM), https://www.washingtonpost.com/politics/2022/06/23/supreme-court-gun-control/ [https://perma.cc/B3TX-5WPL]; Adam Liptak, Supreme Court Sides With Coach Over Prayers at the 50-Yard Line, N.Y. Times (June 27, 2022), https://www.nytimes.com/2022/06/27/us/politics/supreme-court-coach-prayers.html? [https://perma.cc/8Q6S-ELEV] (discussing the holding in Kennedy in the context of school prayer).
Mary B. McCord, Uvalde, Buffalo and the Semiautomatic Weapons That Terrorize Us, N.Y. Times (May 25, 2022), https://www.nytimes.com/2022/05/25/opinion/uvalde-buffalo-semiautomatic-weapons.html [https://perma.cc/Q4FB-NNYX] (noting the Uvalde and Buffalo mass shootings and the Court’s anticipated decision in Bruen).
See Michael Waldman, The Most Dangerous Gun Ruling in History, at the Worst Possible Time, Wash. Post (June 23, 2022, 2:41 PM), https://www.washingtonpost.com/opinions/2022/06/23/bruen-supreme-court-gun-rights-dangerous/ [https://perma.cc/UPD8-AA76]; Jonah E. Bromwich, Federal Judge Blocks N.Y. Gun Law, Finding Much of It Unconstitutional, N.Y. Times (Oct. 6, 2022), https://www.nytimes.com/2022/10/06/nyregion/judge-blocks-ny-gun-law.html [https://perma.cc/2UGG-5EUR] (discussing a recent court ruling that, relying on Bruen, limits the reach of gun control restrictions).
See, e.g., Brett Geier & Ann E. Blankenship-Knox, When Speech Is Your Stock in Trade: What Kennedy v. Bremerton School District Reveals About the Future of Employee Speech and Religion Jurisprudence, 42 Campbell L. Rev. 31, 42–43, 48, 76–78 (2020) (predicting that a decision in favor of the public employee in Kennedy will lead to “potential coercion of religion upon students of public schools”); Pamela Paul, In the Face of Fact, the Supreme Court Chose Faith, N.Y. Times (July 17, 2022), https://www.nytimes.com/2022/07/17/opinion/kennedy-bremerton-supreme-court.html [https://perma.cc/TL8Q-7SR5] (noting that Daniel Mach, director of the ACLU’s program on freedom of religion and belief, thinks that “we are likely to see a lot more blatant religious favoritism by school officials who feel emboldened by the decision”); Ira C. Lupu & Robert W. Tuttle, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/ [https://perma.cc/6G9S-8Z85] (predicting that Kennedy will “embolden teachers and coaches” to “sponsor or offer prayers,” even if the schools themselves do not).
Mary Anne Franks, Book Talk: The Cult of the Constitution, 13 ConLawNOW 33, 34 (2021).
Mary Anne Franks, The Cult of the Constitution 6 (2019) (“The Constitution is first and foremost for white men.”). Of course, the coding of rights goes beyond their origins in a time when men dominated the political process. As Genevieve Lakier has observed in the context of the First Amendment, by insisting on formally equal treatment of all speakers, modern speech doctrine has yielded “a powerful sword for reinforcing the power of the propertied and a shield against government efforts at redistribution.” Genevieve Lakier, The First Amendment’s Real Lochner Problem, 87 U. Chi. L. Rev. 1241, 1245 (2020).
See U.S. Const. amend. XIII, § 1 (abolishing slavery and involuntary servitude); id. amend. XIV, § 1 (conferring citizenship and protections for individual rights); id. amend. XV, § 1 (enfranchising Black men); id. amend. XIX (enfranchising women).
See Reed v. Reed, 404 U.S. 71, 76–77 (1971); Frontiero v. Richardson, 411 U.S. 677, 688, 690–91 (1973) (plurality opinion); Craig v. Boren, 429 U.S. 190, 191–92, 204, 210 (1976); see also Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev. 1323, 1333–34 (2006) (discussing the Court’s interpretation of the Equal Protection Clause to include protections for sex equality).
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131–32 (2022) (“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward.”); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022).
Bonnie Eisenberg & Marty Ruthsdotter, History of the Women’s Rights Movement, Nat’l Women’s Hist. All. (1998), https://nationalwomenshistoryalliance.org/history-of-the-womens-rights-movement/ [https://perma.cc/YYP5-2C7L].
See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”).
See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring).
See Kim Parker et al., America’s Complex Relationship with Guns, Pew Rsch. Ctr. (June 22, 2017), https://www.pewresearch.org/social-trends/2017/06/22/americas-complex-relationship-with-guns/ [https://perma.cc/V8RA-TJJ4].
See Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, 68 U. Mia. L. Rev. 1099, 1108–12 (2014).
See Franks, supra note 84, at 106–07 (arguing that the Court’s First Amendment jurisprudence has been transformed into “a tool of the most privileged and powerful members of society”); id. at 109 (maintaining that the Court’s First Amendment jurisprudence “promotes a simplistic orthodoxy built around the narrative of white, male victimhood, the mythology of the free market, and populist and often patronizing clichés to ensure that the interests of white, male, often extremely wealthy men are protected above all others”); Mary Anne Franks, Witch Hunts: Free Speech, #MeToo, and the Fear of Women’s Words, 2019 U. Chi. Legal F. 123, 124 (2019) (“While the politics of the most favored speech has shifted over time, what has remained largely constant is that free speech theory and practice has focused on men’s speech. There is a great irony here, as it is women’s speech that has been most feared, and thus extensively regulated, criticized, and prohibited throughout American history.”).
See Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977) (per curiam).
See Stanley v. Georgia, 394 U.S. 557, 558–59, 559 n.1 (1969).
See Franks, Witch Hunts: Free Speech, #MeToo, and the Fear of Women’s Words, supra note 93, at 139, 142.
Citizens United v. FEC, 558 U.S. 310, 365 (2010) (holding that the “Government may not suppress political speech on the basis of the speaker’s corporate identity”); see also Lakier, supra note 84, at 1245 (characterizing modern speech doctrine as “a powerful sword for reinforcing the power of the propertied and a shield against government efforts at redistribution”).
Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2415–16 (2022). To be sure, a number of landmark First Amendment challenges—from Sherbert v. Verner to 303 Creative LLC v. Elenis, which was argued in October Term 2022—have been brought by women litigants. See Sherbert v. Verner, 374 U.S. 398, 398–99 (1963) (discussing Adell Sherbert, “a member of the Seventh-day Adventist Church [who] was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith”); 303 Creative LLC v. Elenis, 142 S. Ct. 1106, 1106 (2022) (granting certiorari); Petition for Writ of Certiorari at 1, 303 Creative LLC, 142 S. Ct. 1106 (No. 21-476), 2021 WL 6118274 (discussing Lorie Smith, the appellant). More recently, high profile First Amendment challenges, including Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2252 (2020), and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2375–76 (2020), have featured women plaintiffs. One might argue that the selection of these litigants is purposeful—a deliberate effort to counteract the impression that the First Amendment is less protective of minority interests. Indeed, such concerns may also inform advocacy choices in First Amendment litigation. See Linda Greenhouse, Storytelling at the Supreme Court, N.Y. Times (May 21, 2020), https://www.nytimes.com/2020/05/21/opinion/supreme-court-religion-contraception.html [https://perma.cc/3KBG-PVAW] (discussing the oral argument in Little Sisters of the Poor, and noting that, because “the names of the parties are scarcely mentioned” in Supreme Court arguments, “it was striking to hear Paul Clement, the Little Sisters’ lawyer, refer during the argument to his client by name, again and again, and then again—a total of 13 times, by my count”).
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2124–25 (2022).
Transcript of Oral Argument at 67–70, Bruen, 142 S. Ct. 2111 (No. 20-843).
Id. at 66.
Id. at 67.
According to the Bureau of Labor Statistics, these professions are majority men. See Labor Force Statistics from the Current Population Survey, U.S. Bureau Lab. Stat., https://www.bls.gov/cps/cpsaat11.htm [https://perma.cc/59QD-4NYV] (last visited Jan. 8, 2023).
See Bruen, 142 S. Ct. at 2151 (“After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted.”).
See generally Masterpiece Cakeshop v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018).
See id. at 1723–25.
See id. at 1728–29.
See id. at 1729.
Id. at 1731 (“For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”); see also Church of Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520, 540–41 (1993) (discussing animus in the context of a religious exercise claim).
Masterpiece Cakeshop, 138 S. Ct. at 1731.
Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 281 (2018) (“In sharp contrast to earlier animus cases, where the object of the state’s antipathy was a historically disfavored group, like gay men and lesbians or a minority religious sect, the object of the state’s alleged antipathy in Masterpiece Cakeshop is Jack Phillips, an evangelical Christian and a white man who has denied goods and services to two gay men.”).
See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (noting that “[t]here may be a narrower scope for operation of the presumption of constitutionality when legislation” imposes on fundamental rights or evinces “prejudice against discrete and insular minorities”); see also Murray, supra note 111, at 282 (“With this in mind, cases like Masterpiece Cakeshop suggest the inversion of this traditional antidiscrimination narrative. The oppressed victim of discrimination is no longer the ‘discrete and insular minorities’ contemplated in Carolene Products, but rather religious objectors who were once trumpeted as a ‘moral majority,’ but now cloak themselves as ‘religious minorities’ in need of state protection. In this regard, Christian evangelicals are not simply making a conceptual claim about the amenability of their cause to antidiscrimination law. They are making what amounts to an empirical claim that their traditional morals no longer hold sway in majoritarian culture, transforming them into minorities who face discrimination and subordination in public life.” (citations omitted) (quoting Carolene Prods., 304 U.S. at 152 n.4)).
See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 74–77 (1980) (arguing that judicial review should serve to enhance democratic processes).
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
See Marc Spindelman, Masterpiece Cakeshop’s Homiletics, 68 Clev. St. L. Rev. 347, 417 (2020) (“How much did Masterpiece Cakeshop remind Craig and Mullins [the gay couple] that their legal rights under state law are readily displaced by the authoritative force of a worldview that, seemingly out of nowhere, decides that Phillips, despite his discriminatory refusal of service, was the real victim at the state’s hands in the case?”); Luke A. Boso, Rural Resentment and LGBTQ Equality, 71 Fla. L. Rev. 919, 973 (2019) (noting that “Justice Kennedy . . . sympathized with a Christian ‘victim’”); Murray, supra note 111, at 282 (“[C]ases like Masterpiece Cakeshop suggest the inversion of this traditional antidiscrimination narrative. The oppressed victim of discrimination is no longer the ‘discrete and insular minorities’ contemplated in Carolene Products, but rather religious objectors who were once trumpeted as a ‘moral majority,’ but now cloak themselves as ‘religious minorities’ in need of state protection.” (citations omitted) (quoting Carolene Prods., 304 U.S. at 152 n.4)).
Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020).
Id. (discussing the ministerial exception). Critically, the Court announced the “ministerial exception” to federal antidiscrimination laws in 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 178–79, 188 (2012), a case involving an Americans with Disabilities Act claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. The Court concluded in a unanimous opinion that federal discrimination laws do not apply to religious organizations’ selection of religious leaders. See id. at 190. Critically, the Court concluded that Perich performed ministerial duties and thus was within the scope of the ministerial exception. Id. at 190, 192.
Our Lady of Guadalupe, 140 S. Ct. at 2055, 2058–59. Biel passed away before the Supreme Court decided the case. Id. at 2058 n.6. Her estate pursued the claim against St. James School. Id. at 2058 & n.6.
Id. at 2056–58.
Id. at 2058.
Id. at 2066. As Justice Alito explained in the majority opinion, although the teachers’ formal employment titles “did not include the term ‘minister,’ and they had less formal religious training” than clergy, “their core responsibilities as teachers of religion were essentially the same.” Id. In dissent, Justice Sotomayor objected to this characterization, noting that the two teachers did not spend the bulk of their time providing religious instruction and when they did so, taught largely from workbooks. Id. at 2077–79 (Sotomayor, J., dissenting). Moreover, in considering whether an employee’s duties are “ministerial” for purposes of the exception, Justice Alito made clear that it is the employer’s characterization of the duties that is determinative. See id. at 2066 (majority opinion). In a statement that appeared to be a nod to the Establishment Clause and the prospect of unnecessary entanglement of courts with religious matters, the majority maintained that “[i]n a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.” Id. But see id. at 2076 (Sotomayor, J., dissenting) (observing that in determining that religious institutions are best positioned to decide whether an employee’s function is religious, the majority had “traded legal analysis for a rubber stamp”).
See, e.g., Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1241, 1246 (10th Cir. 2010) (relying on the ministerial exception to bar gender discrimination and hostile work environment claims brought under Title VII and the Equal Pay Act); Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 700–04 (7th Cir. 2003) (relying on the ministerial exception to bar claims of national origin and gender discrimination brought under Title VII).
See Brief for National Women’s Law Center et. al as Amici Curiae Supporting Respondents at 14, Our Lady of Guadalupe, 140 S. Ct. 2049 (Nos. 12-267 & 12-348), 2020 WL 1433942 (“Thus, the ministerial exception must be carefully cabined so as to not increase the already immense harms of sex discrimination in our nation’s workplaces. Additionally, women of color, women with disabilities, older women, LGBTQ women, and immigrant women would also face increased and compounded discrimination if the ministerial exception is not appropriately contained by this Court.”).
One might understand this as a revanchist jurisprudence of grievance that is coincident with the Roberts Court’s jurisprudence of masculinity. The Court imagines men—and in many cases, white men—as beleaguered and aggrieved minorities. See Leah M. Litman, Disparate Discrimination, 121 Mich. L. Rev. 1, 9 (2022) (noting a “narrative of victimization that Republican politicians and conservative commentators have occasionally embraced”). This recasting of men (and white men) as underdogs reflects a broader discourse of the New Right, percolating since the late 1960s, in which traditional white, male masculinity (and the political and social power it once conveyed) is imperiled by a range of social forces—from feminism to civil rights and gay rights. See generally David Savran, Taking It Like a Man: White Masculinity, Masochism, and Contemporary American Culture (1998) (providing a theoretical account of white, male identification with victimization since the 1950s); Jefferson Cowie, Nixon’s Class Struggle: Romancing the New Right Worker, 1969–1973, 43 Lab. Hist. 257, 260–61 (describing the Nixon Administration’s hopes to forge a new conservative majority based on the white, male working-class rage).
The Roberts Court’s brand of masculine grievance jurisprudence was presaged by an earlier case, Johnson v. Transportation Agency, 480 U.S. 616 (1987). There, Paul Johnson, who was passed over for promotion in favor of a female employee, brought a Title VII suit against his employer, the county transportation agency. In a 6–3 opinion, the Court held that the agency did not violate Title VII by taking a female employee’s sex into account and promoting her over Johnson, as the decision was made pursuant to an affirmative action plan directing that sex or race be considered for the purpose of remedying underrepresentation of women and minorities in traditionally segregated job categories and did not unnecessarily trammel rights of male employees or create an absolute bar to their advancement. Id. at 618–19, 634, 637–38, 641–42. The decision prompted a stinging dissent from Justice Scalia, who wrote: “[T]he only losers in the process are the Johnsons of the country, for whom Title VII has been not merely repealed but actually inverted. The irony is that these individuals—predominantly unknown, unaffluent, unorganized—suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.” Id. at 677 (Scalia, J., dissenting). In many ways, there is a straight line connecting Justice Scalia’s dissent in Johnson to the decisions in Kennedy and Bruen. The only difference is that now, these dissenting sentiments form the core of majority opinions.
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2158 (2022) (Alito, J., concurring) (“Some of these people [seeking concealed carry permits] live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities.”).
See id. at 2150–51 (majority opinion) (“After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted.”).
See Brief for Respondent at 13, Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (No. 21-418) (“[P]arents voiced complaints about Kennedy’s prayer practice. One player’s father was ‘very upset’ because his son felt ‘compelled to participate’ for fear that he ‘wouldn’t get to play as much.’”); Adam Liptak, Coach’s Prayers Prompt Supreme Court Test of Religious Freedom, N.Y. Times (Apr. 23, 2022), https://www.nytimes.com/2022/04/23/us/supreme-court-football-coach-prayer.html [https://perma.cc/A9A7-GH6F] (noting that “some residents opposed to prayer on the football field may have hesitated to speak out given the strong feelings the issue has produced”).
Kennedy, 142 S. Ct. at 2428–29.
See id. at 2435 (Sotomayor, J., dissenting) (citing Brief for Religious and Denominational Organizations et al. as Amici Curiae Supporting Respondent at 4, Kennedy, 142 S. Ct. 2407 (No. 21-418)).
Marina Zhavoronkova, Occupational Segregation in America, CAP (Mar. 29, 2022), https://www.americanprogress.org/article/occupational-segregation-in-america/ [https://perma.cc/ZU8F-M2PQ]. See generally Melissa Murray, Law School in a Different Voice, Women & L., Feb. 2020, at 131 (joint publication of the top sixteen law reviews) (discussing gender disparities in various sectors of public life).
This point deserves further elaboration. If Christian men are losing political battles in Colorado (Masterpiece Cakeshop), Washington (Kennedy), and New York (Bruen), it is not because they are disadvantaged in the political process. Indeed, as discussed later in this Address, some might argue that the political landscape has been distorted in ways that favor the interests of Christian evangelicals. See infra Part V. On this account, losing in the state legislature—whether because of the enactment of an antidiscrimination law or a gun control law—is meaningfully different from losing because of systemic discrimination or because of the impact of democratic distortion.
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277 (2022) (“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”).
See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (noting that sex-based classifications are “subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment”).
See Women in the U.S. Congress 2022, Ctr. for Am. Women & Pol., https://cawp.rutgers.edu/facts/levels-office/congress/women-us-congress-2022 [https://perma.cc/B8YR-Y3UL] (last visited Dec. 14, 2022) (noting that women comprise just 28% of the membership in the House of Representatives and 24% of the membership in the Senate); Women in State Legislatures 2023, Ctr. for Am. Women & Pol., https://cawp.rutgers.edu/facts/levels-office/state-legislature/women-state-legislatures-2022 [https://perma.cc/XX4U-JPUQ] (last visited Dec. 14, 2022) (noting that women occupy just 32.6% of state legislative seats); Women in Statewide Elective Executive Office 2022, Ctr. for Am. Women & Pol., https://cawp.rutgers.edu/facts/levels-office/statewide-elective-executive/women-statewide-elective-executive-office-2022 [https://perma.cc/SQV6-LEJQ] (last visited Dec. 14, 2022) (noting that nine of the fifty state governorships are held by women); 2022 US State Court Women Judges, Nat’l Ass’n Women Judges, https://www.nawj.org/statistics/2022-us-state-court-women-judges [https://perma.cc/5V9A-YQ74] (last visited Dec. 14, 2022) (noting that women account for just 34% of state judgeships in the United States); Democracy & Gov’t Reform Team, Examining the Demographic Compositions of U.S. Circuit and District Courts, CAP (Feb. 13, 2020), https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/ [https://perma.cc/5TTF-SYH3] (noting that only 27% of lower federal court judges are women); see also Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. (forthcoming 2023) (manuscript at 20–22) (on file with the Houston Law Review) (discussing these disparities).
See infra Part V. See generally Murray & Shaw, supra note 135 (discussing the Court’s role in distorting the democratic landscape).
Dobbs, 142 S. Ct. at 2277.
For a discussion of the public–private divide, see generally Robert H. Mnookin, The Public/Private Dichotomy: Political Disagreement and Academic Repudiation, 130 U. Pa. L. Rev. 1429 (1982) (identifying the traditional divide between the public and private, and noting its relationship to the tension between individual rights and state power); J. Horwitz, The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423 (1982) (discussing role of the public/private distinction in liberal democratic theory).
See Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Nw. U. L. Rev. 825, 836 (2019) (describing the contours of the private sphere).
Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 93–94 (1980) (Marshall, J., concurring).
See Murray, supra note 139, at 835–36 (describing the public sphere of state regulation).
See Christopher Lasch, Haven in a Heartless World 38–39 (1975) (describing dichotomous liberal democratic world view as one in which an individual is “cold, [hard, and] unfeeling” in the public sphere but seeks “response” in the private [family] sphere).
Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1501–02, 1504 (1983).
Martha A. Ackelsberg & Mary Lyndon Shanley, Privacy, Publicity, and Power: A Feminist Rethinking of the Public-Private Distinction, in Revising the Political: Feminist Reconstructions of Traditional Concepts in Western Political Theory 216 (Nancy J. Hirschmann & Christine Di Stefano eds., 1996); see also Lasch, supra note 142, at 38–39.
See Suzanne A. Kim, Reconstructing Family Privacy, 57 Hastings L.J. 557, 569 (2006) (“The public-private dichotomy has historically been gendered, with the ‘public’ sphere traditionally being the realm of men and the ‘private’ sphere the realm of women.”).
Id. at 568–69.
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141–42 (1872) (Bradley, J., concurring).
Id. at 141.
See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2425 (2022).
Id. at 2415–16, 2425.
Id. at 2425, 2530.
See supra note 8.
See supra Section II.D.2.
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2151–52 (2022); see also McDonald v. City of Chicago, 561 U.S. 742, 858 (2010) (Thomas, J., concurring) (“[T]he right to keep and bear arms was essential to the preservation of liberty.”).
See Bruen, 142 S. Ct. at 2157–59 (Alito, J., concurring).
By returning the issue of abortion to the states, the Dobbs majority allows each state to determine its own policy regarding abortion. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277 (2022) (“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”). While the Court’s “decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion,” it does mean that those wishing to avail themselves of abortion services will be forced to affirmatively seek out that care in hospitable jurisdictions. See id. at 2305 (Kavanaugh, J., concurring).
Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965).
Eisenstadt v. Baird, 405 U.S. 438, 446, 453 (1972).
See Roe v. Wade, 410 U.S. 113, 152 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 896 (1992).
To be sure, the jurisprudence of masculinity’s recharacterization of men’s and women’s bodies is inextricably related to its reconfiguration of the public–private divide. But though the two are related, they are meaningfully distinct and warrant separate discussion and treatment.
See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2425 (2022).
Id. at 2421–22.
This insight raises questions regarding the Court’s characterization of Kennedy’s conduct as speech. If, as the majority insists, Kennedy’s prayers constitute purely private speech, with whom exactly is Kennedy communicating? At least part of the interest in protecting certain forms of speech stems from their perceived value to the receiving audience. One might reasonably wonder if the public interest in speech is absent in circumstances like Kennedy’s, where the speech in question is viewed as entirely private.
See Transcript of Oral Argument, supra note 100, at 68–70.
This theory of abortion as properly subject to public regulation may gesture toward the future of abortion regulation. Even before Dobbs, some scholars maintained that the Court could reason that abortion clinics are commercial enterprises, subject to federal regulation under the Commerce Clause, particularly if they involve the interstate transport of physicians, patients, and supplies. Such a theory could pave a path forward for federal legislation limiting abortion rights. See also Sylvia A. Law, In the Name of Federalism: The Supreme Court’s Assault on Democracy and Civil Rights, 70 U. Cin. L. Rev. 367, 410–11 (2002) (considering whether the Commerce Clause could provide authority for a federal abortion ban). See generally David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59, 59, 88, 95, 110 (1997) (same).
See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2305 (2022) (Kavanaugh, J., concurring) (“To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.” (emphasis omitted)).
Id. at 2305.
Notably, the right to travel, which Justice Kavanaugh referenced in his concurrence, is also unenumerated in the Constitution and may be subject to legal challenges in the coming years. See, e.g., Adam Liptak, The Right to Travel in a Post-Roe World, N.Y. Times (July 11, 2022), https://www.nytimes.com/2022/07/11/us/politics/the-right-to-travel-in-a-post-roe-world.html [https://perma.cc/4MGW-MUVM] (discussing uncertainties with regard to the right to travel for purposes of reproductive care).
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2158–59 (Alito, J., concurring).
Transcript of Oral Argument, supra note 100, at 66–67.
Id. at 68; see also Bruen, 142 S. Ct. at 2158 (“No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns, and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City.” (footnote omitted)).
Transcript of Oral Argument, supra note 100, at 69–70; Bruen, 142 S. Ct. at 2156.
This insight extends beyond the Court’s disposition of Bruen. The logic of men reclaiming control of a failed state might also be glimpsed in the effort to sack the Capitol on January 6, 2021, or in the failed attempt to kidnap Michigan governor Gretchen Whitmer. On this view, whenever the state is perceived as failing its constituents—whether in registering the results of an election or taking steps to address a global public health crisis—men are empowered to recoup control, often through the exercise of Second Amendment rights.
Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2436 (Sotomayor, J., dissenting) (“On September 17, the District’s superintendent sent Kennedy a letter informing him that leading prayers with students on the field and in the locker room would likely be found to violate the Establishment Clause, exposing the District to legal liability.”).
Id. at 2443 (“Kennedy’s prayer practice also implicated the coercion concerns at the center of this Court’s Establishment Clause jurisprudence . . . . This Court has recognized that students face immense social pressure. Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”).
Id. at 2426 (majority opinion) (“On the District’s account, it did not matter whether the Free Exercise Clause protected Mr. Kennedy’s prayer. It did not matter if his expression was private speech protected by the Free Speech Clause. It did not matter that the District never actually endorsed Mr. Kennedy’s prayer, no one complained that it had, and a strong public reaction only followed after the District sought to ban Mr. Kennedy’s prayer.”).
Id. at 2427.
Id. at 2428 (emphasis added).
Id. at 2428–29 (emphasis added).
Id. at 2434 (Sotomayor, J., dissenting) (identifying the various ways the majority has “misread[] the record”). It is also worth noting that the dissent took the unusual step of including photographic evidence from the record below to refute the majority’s account of the facts. Id. at 2436, 2438–39.
Id. at 2434.
Id. at 2434, 2436–37.
Id. at 2434.
Id.
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2283–84 (2022).
Id.
Id. at 2284 (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)).
Id. (citation omitted).
See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”); see also Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815, 819–20 (2007) (discussing a sex equality approach to reproductive rights); Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991, 1045–47 (arguing that abortion bans based on gender stereotypes violate the Equal Protection Clause); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 1016–17 (1984); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1319 (1991); Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 351 (1992); Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 16 (1992); Reva B. Siegel, Abortion as a Sex Equality Right: Its Basis in Feminist Theory, in Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood 43, 64–65 (Martha Albertson Fineman & Isabel Karpin eds., 1995) (surveying equal protection arguments advanced by leading legal scholars in the 1980s and early 1990s).
See Brief for United States as Amicus Curiae Supporting Respondents at 24, Dobbs, 142 S. Ct. 2228 (No. 19-1392) (“In addition, a woman’s ‘right to control [her] reproductive [life]’ is central to her ability to ‘participate equally in the economic and social life of the Nation.’” (quoting Casey, 505 U.S. at 856)); Brief of Equal Protection Constitutional Law Scholars Serena Mayeri et al. as Amici Curiae Supporting Respondents at 2, Dobbs, 142 S. Ct. 2228 (No. 19-1392) (“[T]he Equal Protection Clause supplies an additional, independent basis for the constitutional right to an abortion, and it forbids states like Mississippi from trampling on that right by passing laws like [the challenged abortion restriction].”).
Dobbs, 142 S. Ct. at 2245. In a short paragraph, the majority dismissed any equal protection arguments on the view that “[t]he regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’” Id. at 2245–46. (quoting Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)).
Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495–96 (2021).
Tex. Health & Safety Code Ann. § 171.204 (West 2021).
See Whole Woman’s Health, 141 S. Ct. at 2498 (Sotomayor, J., dissenting) (“The Act is clearly unconstitutional under existing precedents.”).
For examples of federal courts permanently enjoining state restrictions on medical procedures commonly used for pre-viability abortions, see, for example, Richmond Medical Center for Women v. Hicks, 301 F. Supp. 2d 499, 515 (E.D. Va. 2004), aff’d, 409 F.3d 619 (4th Cir. 2005); Summit Medical Associates v. Siegelman, 130 F. Supp. 2d 1307, 1314 (M.D. Ala. 2001); A Choice for Women v. Butterworth, No. 00-182-0CIV, 2000 WL 34403086, at *3 (S.D. Fla. July 11, 2000); Women’s Medical Professional Corp. v Voinovich, 911 F. Supp. 1051, 1063–64 (S.D. Ohio 1995), aff’d, 130 F.3d 187 (6th Cir. 1997).
Whole Woman’s Health, 141 S. Ct. at 2498 (Sotomayor, J., dissenting) (“To circumvent [caselaw that would require enjoining the Act], the Legislature took the extraordinary step of enlisting private citizens to do what the State could not.”).
Id.
Id. at 2495 (majority opinion) (per curiam).
See Claire Cain Miller et al., Abortions Fell by Half in Month After New Texas Law, N.Y. Times (Oct. 29, 2021), https://www.nytimes.com/interactive/2021/10/29/upshot/t
exas-abortion-data.html [https://perma.cc/2MRS-3ELV].Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992); see also Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harv. L. Rev. 308, 328 (2020) (discussing the Casey stare decisis factors).
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2276 (2022).
Casey, 505 U.S. at 856.
Dobbs, 142 S. Ct. at 2276 (quoting Casey, 505 U.S. at 856).
Id. (quoting Casey, 505 U.S. at 856).
Id. (quoting Casey, 505 U.S. at 856).
Id. at 2276 (quoting Casey, 505 U.S. at 957 (Rehnquist, C.J., concurring in judgment in part and dissenting in part)).
Id. (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)).
Id. (quoting Payne, 501 U.S. at 828).
For example, possession and labor are often proffered as the “justifications for [the] original acquisition of property rights,” but these justifications do not apply equally to women, nor to people of color, for whom labor historically has not led to property rights but rather has gone uncompensated. See Joseph William Singer, Re-Reading Property, 26 New Eng. L. Rev. 711, 713 (1992). Preferences for objectivity, rationality, and abstraction make clear contract law’s male orientation, as well. See Debora L. Threedy, Feminists & Contract Doctrine, 32 Ind. L. Rev. 1247, 1249–52 (1999). Notably, married women were unable to contract or retain property under the common law doctrine of coverture, perhaps facilitating the historic gendered perspectives of both fields. See Marylynn Salmon, Women and the Law of Property in Early America 14–16, 57 (1986).
P.D. James, The Children of Men 11 (Alfred A. Knopf, Inc. 1993) (1992).
See Lawrence B. Solum, Originalism, Legal Theory Lexicon (June 18, 2021), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_1.html. [https://perma.cc/RND5-LMFR].
See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863–64 (1989) (“Originalism . . . establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 10–11 (1971) (maintaining that, by narrowing the focus of judicial inquiry to the original meaning of the Constitution (or intent of its Framers), originalism limits the discretion of judges to impose their personal, subjective views of good policy).
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240–52, 2255–56 (2022).
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (“The constitution of the family organization, 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 . . . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.”); see also Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 981–91 (2002) (discussing the “virtual representation” of women in the period preceding the Nineteenth Amendment).
Dobbs, 142 S. Ct. at 2253–54.
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132–34, 2138 (2022).
Id. at 2136 (“[W]hen it comes to interpreting the Constitution, not all history is created equal.”).
See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2426 (2022) (“It is true that this Court and others often refer to the ‘Establishment Clause,’ the ‘Free Exercise Clause,’ and the ‘Free Speech Clause’ as separate units. But the three Clauses appear in the same sentence of the [First] Amendment . . . . A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”). The Kennedy majority’s understanding of the interaction between the Establishment and Free Exercise Clauses reiterates the view articulated by Judge Ryan Nelson in a dissent from the Ninth Circuit’s decision below. As Judge Nelson maintained, the Ninth Circuit majority’s decision ruling in favor of the school board “was wrong for a more fundamental reason: it leaps beyond the Establishment Clause’s original meaning to the detriment of free exercise rights.” Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 949 (9th Cir. 2021) (Nelson, J., dissenting), rev’d, 142 S. Ct. 2407 (2022).
Kennedy, 142 S. Ct. at 2421, 2247 (quoting Kennedy, 4 F.4th at 945–47, 946 n.3).
Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014) (“‘[T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”).
United States v. Perez-Gallan, No. PE:22-CR-00427, 2022 WL 16858516, at *2–8, *15. (W.D. Tex. Nov. 10, 2022).
Id. at *15.
Id. at *6.
United States v. Rahimi, No. 21-11001, 2023 WL 2317796, at *1 (5th Cir. Mar. 2, 2023).
Id. at *8.
Id. at *9.
Id.
Id. at *15 (Ho, J., concurring).
Id.
Reva B. Siegel, How “History and Tradition” Perpetuates Status: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901, 912–13, 919–20 (2023).
As one federal district court observed in the context of a Second Amendment challenge to a law disarming those previously convicted of a misdemeanor domestic violence offense, “[l]aws surrounding domestic violence have evolved, in part as women’s rights and roles in society expanded. The absence of stronger laws may reflect the fact that the group most impacted by domestic violence lacked access to political institutions, rather than a considered judgment about the importance or seriousness of the issue.” United States v. Nutter, No. 2:21-cr-00142, 2022 WL 3718518, at *2, *5 (S.D. W. Va. Aug. 29, 2022).
. Heller, which initiated the Court’s reevaluation of the right to bear arms, is celebrated by many as a “[t]riumph of originalism” for its alignment with the Framers’ values. Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 191 (2008). Importantly, though, others disagree with this conclusion, “observing that the Court . . . interpreted the Second Amendment in accordance with the convictions of the twentieth-century gun-rights movement and so . . . demonstrated the ascendancy of the living Constitution.” Id. at 191–92.
See supra note 84 and accompanying text.
See Obergefell v. Hodges, 576 U.S. 644, 663–64, 668–69 (2015).
U.S. Const. amend. IX.
See generally Jane S. Schacter, Unenumerated Democracy: Lessons from the Right to Vote, 9 U. Pa. J. Const. L. 457, 466, 470–73 (2007) (discussing skepticism of unenumerated rights).
See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (“[W]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” (citation omitted)).
To be sure, a majority of the Court has recognized the right to marry and the right to procreate as among “the basic civil rights of man.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). However, there has been considerable debate over whether the right to marry sanctions the selection of any marital partner and whether the right to procreate includes the right to not procreate. See Loving v. Virginia, 388 U.S. 1, 11–12 (1967); Baker v. Nelson, 409 U.S. 810 (1972), appeal dismissed; United States v. Windsor, 570 U.S. 744, 751–52 (2013); Obergefell v. Hodges, 576 U.S. 644 (2015).
See generally Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453 (1989) (discussing the constitutional moments of American history and the judicial effort to synthesize their meanings into modern constitutional law).
See Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 54–64 (2019) (discussing the abolitionist roots of the Reconstruction Amendments); see also Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values (1997) (discussing the abolitionist roots of the Reconstruction Amendments).
See U.S. Const. amend. XIII, § 1.
See id. amend. XV, § 1.
Id. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
Cong. Globe, 39th Cong., 1st Sess. 2766 (1866).
The Declaration of Independence para. 2 (U.S. 1776); see also Alexander Tsesis, The Declaration of Independence and Constitutional Interpretation, 89 S. Cal. L. Rev. 369, 390–98 (2016) (examining the incorporation of abolitionist sentiments into the Reconstruction Amendments).
U.S. Const. amend. IX. The influence of the Declaration of Independence and the Ninth Amendment on the drafting of the Fourteenth Amendment was central to the congressional debates about the Amendment. Senator Luke Poland of Vermont underscored the Fourteenth Amendment’s roots in the Declaration of Independence, noting that the Amendment’s guarantees of liberty and equality were “the very spirit and inspiration of our system of government” as “essentially declared in the Declaration of Independence.” Poland’s Senate colleague, James Nye, invoked the Ninth Amendment in arguing that individual rights could not be limited to those explicitly enumerated in the Constitution. As he explained, in “enumerati[ng the] natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of.” The Ninth Amendment was added “lest something essential . . . [be] overlooked.” These arguments were echoed in other constitutional debates during Reconstruction. Debating the Fourteenth Amendment in the House of Representatives, Representative Thaddeus Stevens maintained that the Amendment’s guarantees reflected “in some form or other, . . . our Declaration or organic law.” Cong. Globe, 39th Cong., 1st Sess. 1072, 2459, 2960–61 (1866); id. at 2510 (explaining that the Due Process and Equal Protection Clauses are “so clearly within the spirit of the Declaration of Independence” that “no member of this House can seriously object to [them]”).
Cong. Globe, 39th Cong., 1st Sess. 2961 (1866).
This notion of bodily integrity infused the drafting of the Fourteenth Amendment, as the Framers considered bodily integrity as part of a trilogy of rights—personal security, personal liberty, and private property—that were considered fundamental in the common law tradition. According to Senator Lyman Trumbull, personal security and bodily integrity were “inalienable rights, belonging to every citizen of the United States, as such, no matter where he may be.” Cong. Globe, 39th Cong., 1st Sess. 1757 (1866). As defined by Blackstone, personal security included a person’s “uninterrupted enjoyment of his life, his limbs, his body, his health . . . .” Id. at 1118.
See Peter Kolchin, American Slavery 1619–1877, at 5 (1993) (arguing that the type of slavery that materialized in the “European-derived” world during the sixteenth and seventeenth centuries was “preeminently a system of labor”).
See Randall Kennedy, Race, Crime, and the Law 77 (1997) (discussing the physical violence of slavery).
See Herbert G. Gutman, The Black Family in Slavery and Freedom, 1750–1925, at 318 (1976) (noting the ubiquity of family separation during slavery).
Cong., Globe, 38th Cong., 2d Sess. 193, 527 (1865).
Cong. Globe, 39th Cong., 1st Sess. 93 (1865); Report of the Commissioner of the Bureau of Refugees, Freedmen and Abandoned Lands 41 (1867) (“Not a day passes but my office is visited by some poor woman who has walked perhaps ten or twenty miles to see the agent of the bureau, and try to procure the release of her children taken forcibly away from her and held to all intents and purposes in slavery.”).
Roberts, supra note 240, at 54 (“The abolition struggle profoundly shaped not only the specific language of the Reconstruction Amendments but also the very meaning of those constitutional principles.”).
Cong. Globe, 39th Cong., 1st Sess. 42 (1865) (discussing the need to provide freedpersons with security in their homes and family lives).
Id. at 2779.
Id.
Daina Ramey Berry, The Price for Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation 13 (2017) (noting that the abolition of the slave trade in 1808 “shifted the source” of enslaved persons from the international slave trade “to the natural, coerced, encouraged, and forced reproduction of enslaved women”); see also Dorothy Roberts, Killing the Black Body 24 (Vintage Books 1997) (“The ban on importing slaves after 1808 and the steady inflation in their price made enslaved women’s childbearing even more valuable.”); Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2034 (2021) (“Slave owners had economic interests in the reproduction of enslaved persons and the reproductive capacities of enslaved women.”).
Harriet Beecher Stowe, Uncle Tom’s Cabin: Or, Life Among the Lowly 234 (Barnes & Noble Classics 2003) (1852) (emphasis added); Uncle Tom’s Cabin: A Moral Battle Cry for Freedom, Harriet Beecher Stowe Ctr., https://www.harrietbeecherstowecenter.org/harriet-beecher-stowe/uncle-toms-cabin [https://perma.cc/8LP4-NYRZ] (last visited Feb. 19, 2023).
See Daina Ramey Berry & Leslie M. Harris, Introduction to Sexuality and Slavery: Reclaiming Intimate Histories in the Americas 2 (Daina Ramey Berry & Leslie M. Harris eds., 2018) (“Sexual intimacy comprised a core terrain of struggle between slaveholders and the enslaved . . . [S]exual practices were linked throughout the Americas to the question of how enslaved populations might reproduce, literally, wealth for slaveholders and their descendants in the form of children.”); id. (“Conversely, many Europeans believed that people of African descent had no norms around sexual practice and thus were available for slave owners to enact their own emotional and sexual fantasies in relationships with enslaved people.”).
Harriet Jacobs, Incidents in the Life of a Slave Girl 119–20 (L. Maria Child ed., 1861).
McDonald v. City of Chicago, 561 U.S. 742, 807 (2010) (Thomas, J., concurring).
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2150–56 (2022); McDonald, 561 U.S. at 805–09 (Thomas, J., concurring).
Bruen, 142 S. Ct. at 2151–52.
McDonald, 561 U.S. at 805–09 (Thomas, J., concurring).
Id. at 806.
United States v. Cruikshank, 92 U.S. 542, 553 (1875).
Equal Just. Initiative, Reconstruction in America: Racial Violence After the Civil War, 1865–1876, at 90–91 (2020). Notably, the Court fails to recount how unarmed Black women were terrorized through violence and the trauma of seeing their loved ones murdered during the Colfax Massacre. Compare Cruikshank, 92 U.S. at 548–49, with LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction 105–06 (2008).
McDonald, 561 U.S. at 855–57 (Thomas, J., concurring).
Id. at 855–56.
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (citing McDonald, 561 U.S. at 780 (plurality opinion)).
Danny Li, Note, Bruen and the Antisubordinating Second Amendment, 132 Yale L.J. (forthcoming 2023) (manuscript at 9) (discussing the gun rights lobby’s embrace of racialized narratives).
See supra p. 821.
See McDonald, 561 U.S. at 855–57 (Thomas, J., concurring).
See Roberts, supra note 240239, at 8.
See Rebecca Hall & Angela Harris, Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank, in Women and the Law Stories 21, 22 (Wildman & Schneider eds., 2011) (discussing history’s failure to acknowledge the sexual and racialized violence of the Colfax Massacre).
See supra pp. 832–36.
See supra pp. 833–35 and accompanying citations.
See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2249–50 (2022).
See 1 Sir Matthew Hale, The History of the Pleas of the Crown 629 (1847) (“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”); see, e.g., Amanda Taub, The 17th-Century Judge at the Heart of Today’s Women’s Rights Rulings, N.Y. Times (May 19, 2022), https://www.nytimes.com/2022/05/19/world/asia/abortion-lord-matthew-hale.html [https://perma.cc/3ZLH-8WYJ] (discussing the influence of Hale’s treatise).
William Renwick Riddell, Sir Matthew Hale and Witchcraft, 17 J. Crim. L. & Criminology 5, 7 (1926).
See Dobbs, 142 S. Ct. at 2249–50.
See 1 William Blackstone, Commentaries *442–45 (“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing . . . .”); see also Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253, 1260 & n.24 (2009) (referencing Blackstone and further discussions of the common law principle of coverture).
But see Siegel, supra note 230, at 908–09.
Dobbs, 142 S. Ct. at 2277.
Id.
Coined by Lani Guinier and Gerald Torres, the term demosprudence “describes lawmaking or legal practices that inform and are informed by the wisdom of the people.” Lani Guinier, Foreword: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 15–16 (2008).
See, e.g., Lawrence v. Texas, 539 U.S. 558, 603–04 (2003) (Scalia, J., dissenting).
Id. at 604.
Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting).
Id.
N.Y. Penal Law § 400.00(2)(f) (McKinney 2022).
See Becoming a School Board Director, Bremerton Sch. Dist., https://www.bremertonschools.org/Page/9126 [https://perma.cc/RPP7-K4UQ] (July 12, 2022) (noting that school board members are elected positions).
Rucho v . Common Cause, 139 S. Ct. 2484, 2505–07 (2019) (“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”).
Id.
Id. at 2507. Critically, the Court may soon limit even these narrow modes of oversight. In October Term 2022, the Court will, in Moore v. Harper, consider the prospect of the independent state legislature theory, which maintains that, under the Elections Clauses of Articles I and II, state legislatures, and no other branch of state government, are authorized to regulate federal elections. If the Court credits this unorthodox reading of the Elections Clauses, it would allow state legislatures broad authority to enact regulations that impact federal elections with no prospect of meaningful oversight from state courts and executives. See Eliza Sweren-Becker & Ethan Herenstein, Moore v. Harper, Explained, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained [https://perma.cc/6DRA-6ZXX] (last updated Oct. 26, 2022).
See Alex Tausanovitch & Danielle Root, How Partisan Gerrymandering Limits Voting Rights, Ctr. for Am. Progress (July 8, 2020), https://www.americanprogress.org/article/partisan-gerrymandering-limits-voting-rights/ [https://perma.cc/ZXD7-TWYY]; Jones Mayer, State Legislatures Are Torching Democracy, New Yorker (Aug. 6, 2022), https://www.newyorker.com/magazine/2022/08/15/state-legislatures-are-torching-democracy [https://perma.cc/NU4Y-K2VQ] (noting how gerrymandering in Ohio has led to passing extreme statutes).
John Hanna & Margaret Stafford, Kansas Voters Resoundingly Protect Their Access to Abortion, AP News (Aug. 3, 2022), https://apnews.com/article/2022-primary-elections-kansas-abortion-b6d62a852c2ce4617f2c03589fbb523e [https://perma.cc/C2W6-85VJ].
Kansas No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment (August 2022), Ballotpedia, https://ballotpedia.org/Kansas_No_State_Constitutional_Right_to_Abortion_and_Legislative_Power_to_Regulate_Abortion_Amendment_(August_2022) [https://perma.cc/Y44B-Z5P8] (last visited Feb. 18, 2023).
Associated Press, Indiana Legislature First to Approve Abortion Bans Post Roe, Politico (Aug. 5, 2022, 11:41 PM), https://www.politico.com/news/2022/08/05/indiana-legislature-first-to-approve-abortion-bans-post-roe-00050199 [https://perma.cc/VF58-83FU]; Kansas No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment (August 2022), supra note 299.
What Legal Implications Arise After Indiana Approves an Abortion Ban?, NPR, Morning Edition (Aug. 8, 2022, 5:07 AM), https://www.npr.org/2022/08/08/1116264186/what-legal-implications-arise-after-indiana-approves-an-abortion-ban [https://perma.cc/PQ9F-S8GH] (noting the differences between representative democracy and direct democracy measures).
Jared Bennett, In Indiana, Extreme Gerrymandering and Low Voter Turnout Go Hand-in-Hand, Ctr. Pub. Integrity (Oct. 6, 2022), https://publicintegrity.org/politics/elections/who-counts/in-indiana-extreme-gerrymandering-and-low-voter-turnout-go-hand-in-hand/ [https://perma.cc/V8NK-JVJ8].
Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013).
See id. at 530–31, 537.
. See The Effects of Shelby County v. Holder, Brennan Ctr. for Just. (Aug. 6, 2018), https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder [https://perma.cc/Y2FN-CVV4] (noting that Shelby County “opened the floodgates to laws restricting voting throughout the United States” and finding that “states previously covered by the preclearance requirement have engaged in recent, significant efforts to disenfranchise voters”).
Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).
See The Implications of Brnovich v. Democratic National Committee and Potential Legislative Responses: Hearing Before the H. Comm. on the Judiciary Subcomm. on the Const., C.R., and C.L., 117th Cong. (2021) (testimony of Ezra D. Rosenberg, Co-Director, Voting Rights Project Lawyers’ Committee for Civil Rights Under Law) (“Brnovich presents new challenges [to voting rights]. Its impacts have yet to be measured, but common sense and history instruct us that those who wish to target voters of color will undoubtedly feel emboldened by a decision that can be read as making it more difficult for plaintiffs to prove a Section 2 violation giving state legislatures a ‘Get Out of Jail’ card to pass voter suppressive legislation, and justify it simply by claiming ‘voter fraud.’”).
See Brnovich, 141 S. Ct. at 2336–41.
See The Implications of Brnovich v. Democratic National Committee, supra note 307 (discussing the twin effects of Shelby County and Brnovich).
See Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (noting probable jurisdiction and granting certiorari before judgment); id. at 882–83 (Roberts, C.J., dissenting); Merill v. Milligan, Ballotpedia, https://ballotpedia.org/Merrill_v._Milligan [https://perma.cc/X3ED-TB63] (last visited Feb. 19, 2023).
Moore v. Harper, 142 S. Ct. 1089 (2022).
See Petition for Writ of Certiorari at i, Moore, 142 S. Ct. 1089 (No. 21-1271).
See Leah Litman et al., The Link Between Voting Rights and the Abortion Ruling, Wash. Post (June 28, 2022, 12:13 PM), https://www.washingtonpost.com/outlook/2022/06/28/dobbs-voting-rights-minority-rule/ [https://perma.cc/2EP3-RFR8].
Id.
Id.
Gregory Krieg, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 12, 2016, 5:45 AM), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html [https://perma.cc/UQ27-DGWD].
Id.
James, supra note 210, at 127.
See generally id.
See generally id.
Egbert v. Boule, 142 S. Ct. 1793, 1818 (2022) (Sotomayor, J., concurring in part, dissenting in part).