Sensitivities

Captain Ed is outraged by the "sexism" of Ruth Bader Ginsburg in her discussion of being the only women on the Supreme Court. Quoth Ginsburg:

Of herself and O'Connor, the court's first female justice, Ginsburg said: "We have very different backgrounds. We divide on a lot of important questions, but we have had the experience of growing up women and we have certain sensitivities that our male colleagues lack."

What's distressing about Ed's post is not just that he's misreading Ginsburg, it's that it seems to be willful. This is how Ed describes her comments

She then told the students that men lack the sensitivity than women bring to the bench....While decrying the supposed sexism that has left her isolated on the bench, Ginsburg wants law students to understand that one has to have two X chromosomes to understand the sensitivies [sic] of the law.

But that's not what Ginsburg said at all. She didn't say men were less "sensitive." Nor did she say that men could not "understand the sensitivities of the law." She said women possess certain sensitivities, by virtue of growing up as women, that men do not. For example, they would be more attuned to the impact of misogyny, because it is something that exists in their actual experience, rather than something studied as an abstract academic enterprise. That's a) an entirely different point than the one Ed tries to pin on Ginsburg, and b) one that's almost undeniably true.

But how does it relate to law? Ed doesn't think it does:

However, a jurist's job isn't to formulate or enforce policy; it's to render judgments based on the law. Especially at the level of the Supreme Court, "sensivitivities" shouldn't enter into decisions about the Constitutionality of a law or whether proper procedure was followed by a trial court. "Sensitivities" interfere with the dispassionate evaluation of whether the law was applied properly and whether it passes Constitutional muster.

Tragically, Ed is wrong. If a jurist is trying to determine, for example, whether sexual harassment was "pervasive" enough to violate anti-discrimination laws, or whether an abortion restriction constitutes an "undue burden" on a woman's right to choose, these sensitivities become instrumental in being a well-informed jurist. Indeed, it is impossible to make a decision utilizing these standards without some degree of sensitivity to how policy/procedure X impacts litigant Y. That is the essence of the dispute before the Court, attempting to exile it from the sphere of law is exiling law from law. It makes legal decisionmaking completely incoherent, and utterly demolishes the principle that cases should be decided as cases.

The legal formulas outlined above directly ask for the material impacts a given laws or actions have on a woman's ability to interact freely and equally in American society. It's not that men cannot fathom that impact, it's that their experience is--at best--second hand rather than immediate. Never having experienced pervasive misogyny, a male jurist may simply miscalculate the degree to which it is debilitating and prevents equal standing (and that miscalculation means that the jurist will likely just get the decision wrong). This risk is greatly magnified when there is nobody on the Court who can speak to the actual rather than the abstract. Having a female voice on the court substantiates previously abstract concerns and thus leads to more information and better decisions by all the justices. Justice Ginsburg's argument isn't that women judge better than men. It's that gender-diversified judiciaries judge better than single-sex (in this case, patriarachal) judiciaries.

It's worth noting that when this experience-based theorizing gets brought into legal spheres, people start gasping about how it isn't real law.

Is it possible that such "sensitivities" would inhibit women, making them less objective in the practice of judging cases?....Women may bring distinct gifts into the public sphere, but there is a time to cherish the differences and a time to stick to the rules so that we don't corrupt them. Ruth may be a marvelous mother and grandmother, but her ovaries have to be kept in check on the Bench so that the law remains the law. If she wanted to live by her "senses," then perhaps a different vocation should have been pursued.

Wrong, wrong, wrong.

What is being missed here is that the mascaline "professional" voice isn't more "objective," it's just different. And as noted above, the lack of direct experience by men, without countervailing checks, leads to bad decisions as a matter of law in cases where the jurist needs to gauge how the law impacts women qua women to determine if a constitutional or statutory bar has breached. I've noted in other contexts that taking a "sympathetic approach" to law can sometimes lead to better decisions under almost any barometer, while still being completely "legal" in every meaningful sense. Ironically, while purporting to argue against female supremacism, what this piece actually forwards is that masculine views of law are superior by virtue of their masculinity. This should be troublesome.

Incidentally, the reverse is also true--if a legal question specifically and disproportionately impacts men qua men, it is important to have a male perspective to make the most accurate decision possible (I'm think castration cases, maybe?). But a) these cases are rarer, and b) in any event, we don't suffer from a shortage of male judges.