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Bench Memos

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Thinking With Their Uteruses?—Part 2



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Some additional observations (numbered serially from my Part 1 post) on Ruth Marcus’s claim that the fact that Justices Ginsburg, Sotomayor, and Kagan “have uteruses” helps to explain their dissents in Hobby Lobby:

3. Outside Marcus’s narrow world, there are, of course, countless women who believe that Hobby Lobby’s religious-liberty claim ought to prevail. Those women include Seventh Circuit judge Diane Sykes and D.C. Circuit judge Janice Rogers Brown (each of whom wrote opinions holding that the HHS mandate violates the RFRA rights of for-profit companies and/or their owners); the many talented lawyers who supported the challenge to the HHS mandate; and individual plaintiffs like Elizabeth Hahn and Barbara Green.

The ugly implication of Marcus’s suggestion that having a uterus should lead someone to oppose Hobby Lobby’s position is that these women aren’t really women, or are somehow less female than Ginsburg is, or are traitors to the Sisterhood.

In contrast to the fictitious “war on women” of the Left’s imagination, there seems to me something genuinely hostile in the insinuation that all women should think alike on any question that involves birth control.

4. Marcus argues more broadly that the “phenomenon of life experience influencing outcome … is embedded in the act of judging.” Well, yes and no. This is a large topic that I won’t try to explore fully here. I’ll instead set forth these propositions:

(a) As a general rule, the obligation of impartiality requires that a judge strive to ensure that his or her life experience isn’t improperly influencing how the judge construes or applies the law.

(b) There will nonetheless be some (perhaps many) legal questions in which the judge’s life experience inevitably influences the act of judging.

(c) Among the many defects of the “living Constitution” approach to constitutional interpretation are that it invites judges to indulge their life experiences and that it vastly multiplies the instances in which it is supposedly proper or inevitable for them to do so.



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