Two features of Captain Struck’s case are particularly noteworthy. First, the rule she challenged was unequivocal and typical of the time. It provided: “A woman officer will be discharged from the service with the least practicable delay when a determination is made by a medical officer that she is pregnant.”94 To cover any oversight, the Air Force had a backup rule: “The commission of any woman officer will be terminated with the least practicable delay when it is established that she . . . has given birth to a living child while in a commissioned officer status.”95
A second striking element of Captain Struck’s case was the escape route available to her, which she chose not to take. Air Force regulations current at the start of the 1970s provided: “The Air Force Medical Service is not subject to State laws in the performance of its functions. When medically indicated or for reasons involving medical health, pregnancies may be terminated in Air Force hospitals . . . ideally before 20 weeks gestation.”96
Captain Struck argued that the unwanted discharge she faced unjustifiably restricted her personal autonomy and dignity; principally, however, she maintained that the regulation mandating her discharge violated the equal protection of the laws guarantee implicit in the Fifth Amendment’s Due Process Clause.97 She urged that the Air Force regime differentiated invidiously by allowing males who became fathers, but not females who became mothers, to remain in service and by allowing women who had undergone abortions, but not women who delivered infants, to continue their military careers.98 Her pleas were unsuccessful in the lower courts, but on October 24, 1972, less than three months before the Roe decision, the Supreme Court granted her petition for certiorari.99
At that point the Air Force decided it would rather switch than fight. At the end of November 1972, it granted Captain Struck a waiver of the once-unwaivable regulation and permitted her to continue her service as an Air Force officer. The solicitor general promptly and successfully suggested that the case had become moot.100
Given the parade of cases on the Court’s full calendar, it is doubtful that the Justices trained further attention on the Struck scenario. With more time and space for reflection, however, and perhaps a female presence on the Court, might the Justices have gained at least these two insights? First, if even the military, an institution not known for avant-garde policy, had taken to providing facilities for abortion, then was not a decision of Roe’s muscularity unnecessary? Second, confronted with Captain Struck’s unwanted discharge, might the Court have comprehended an argument, or at least glimpsed a reality, it later resisted—that disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination on the basis of sex?101 What was the assumption underlying the differential treatment to which Captain Struck was exposed? The regulations that mandated her discharge were not even thinly disguised. They declared, effectively, that responsibility for children disabled female parents, but not male parents, for other work—not for biological reasons, but because society had ordered things that way.102
Captain Struck had asked the Court first to apply the highest level of scrutiny to her case, to hold that the sex-based classification she encountered was a “suspect” category for legislative or administrative action.103 As a fallback, she suggested to the Court an intermediate standard of review, one under which prescriptions that worked to women’s disadvantage would gain review of at least heightened, if not the very highest, intensity.104 In the course of the 1970s, the Supreme Court explicitly acknowledged that it was indeed applying an elevated, labeled “intermediate,” level of review to classifications it recognized as sex-based.105
Justice O’Connor carefully traced that development in last year’s Madison Lecture,106 and I will recall it only summarily. Until 1971, women did not prevail before the Supreme Court in any case charging unconstitutional sex discrimination.107 In the years from 1971 to 1982, however, the Court held unconstitutional, as violative of due process or equal protection constraints, a series of state and federal laws that differentiated explicitly on the basis of sex.108
The Court ruled in 1973, for example, that married women in the military were entitled to the housing allowance and family medical care benefits that Congress had provided solely for married men in the military.109 Two years later, the Court held it unconstitutional for a state to allow a parent to stop supporting a daughter once she reached the age of 18, while requiring parental support for a son until he turned 21.110 In 1975, and again in 1979, the Court declared that state jury-selection systems could not exclude or exempt women as a class.111 In decisions running from 1975 to 1980, the Court deleted the principal explicitly sex-based classifications in social insurance112 and workers’ compensation schemes.113 In 1981, the Court said nevermore to a state law designating the husband “head and master” of the household.114 And in 1982, in an opinion by Justice O’Connor, the Court held that a state could not limit admission to a state nursing college to women only.115
The backdrop for these rulings was a phenomenal expansion, in the years from 1961 to 1971, of women’s employment outside the home,116 the civil rights movement of the 1960s and the precedents set in that struggle,117 and a revived feminist movement, fueled abroad and in the United States by Simone de Beauvoir’s remarkable 1949 publication, The Second Sex.118 In the main, the Court invalidated laws that had become obsolete, retained into the 1970s by only a few of the states.119 In a core set of cases, however, those dealing with social insurance benefits for a worker’s spouse or family,120 the decisions did not utterly condemn the legislature’s product. Instead, the Court, in effect, opened a dialogue with the political branches of government. In essence, the Court instructed Congress and state legislatures: rethink ancient positions on these questions. Should you determine that special treatment for women is warranted, i.e., compensatory legislation because of the sunken-in social and economic bias or disadvantage women encounter, we have left you a corridor in which to move.121 But your classifications must be refined, adopted for remedial reasons, and not rooted in prejudice about “the way women (or men) are.”122 In the meantime, the Court’s decrees removed no benefits; instead, they extended to a woman worker’s husband, widower, or family benefits Congress had authorized only for members of a male worker’s family.123
The ball, one might say, was tossed by the Justices back into the legislators’ court, where the political forces of the day could operate. The Supreme Court wrote modestly, it put forward no grand philosophy;124 but by requiring legislative reexamination of once-customary sex-based classifications, the Court helped to ensure that laws and regulations would “catch up with a changed world.”125
Roe v. Wade,126 in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures “toward liberalization of abortion statutes.”127 That movement for legislative change ran parallel to another law revision effort then under way—the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s.128
No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible.129 Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
Constitutional review by courts is an institution that has been for some two centuries our nation’s hallmark and pride.130 Two extreme modes of court intervention in social change processes, however, have placed stress on the institution. At one extreme, the Supreme Court steps boldly in front of the political process, as some believe it did in Roe.131 At the opposite extreme, the Court in the early part of the twentieth century found—or thrust—itself into the rear guard opposing
change, striking down, as unconstitutional, laws embodying a new philosophy of economic regulation at odds with the nineteenth century’s laissez-faire approach.132 Decisions at both of these poles yielded outcries against the judiciary in certain quarters. The Supreme Court, particularly, was labeled “activist” or “imperial,” and its precarious position as final arbiter of constitutional questions was exposed.133
I do not suggest that the Court should never step ahead of the political branches in pursuit of a constitutional precept. Brown v. Board of Education,134 the 1954 decision declaring racial segregation in public schools offensive to the equal protection principle, is the case that best fits the bill. Past the midpoint of the twentieth century, apartheid remained the law-enforced system in several states, shielded by a constitutional interpretation the Court itself advanced at the turn of the century—the “separate but equal” doctrine.135
In contrast to the legislative reform movement in the states, contemporaneous with Roe, widening access to abortion, prospects in 1954 for state legislation dismantling racially segregated schools were bleak. That was so, I believe, for a reason that distances race discrimination from discrimination based on sex. Most women are life partners of men; women bear and raise both sons and daughters. Once women’s own consciousness was awakened to the unfairness of allocating opportunity and responsibility on the basis of sex, education of others—of fathers, husbands, sons as well as daughters—could begin, or be reinforced, at home.136 When blacks were confined by law to a separate sector, there was no similar prospect for educating the white majority.137
It bears emphasis, however, that Brown was not an altogether bold decision. First, Thurgood Marshall and those who worked with him in the campaign against racial injustice, carefully set the stepping-stones leading up to the landmark ruling.138 Pathmarkers of the same kind had not been installed prior to the Court’s decision in Roe.139 Second, Brown launched no broadside attack on the Jim Crow system in all its institutional manifestations. Instead, the Court concentrated on segregated schools;140 it left the follow-up for other days and future cases. A burgeoning civil rights movement—which Brown helped to propel—culminating in the Civil Rights Act of 1964,141 set the stage for the Court’s ultimate total rejection of Jim Crow legislation.
Significantly, in relation to the point I just made about women and men living together, the end of the Jim Crow era came in 1967, thirteen years after Brown: the case was Loving v. Virginia,142 the law under attack, a state prohibition on interracial marriage. In holding that law unconstitutional, the Court effectively ruled that, with regard to racial classifications, the doctrine of “separate but equal” was dead—everywhere and anywhere within the governance of the United States.143
The framers of the Constitution allowed to rest in the Court’s hands large authority to rule on the Constitution’s meaning; but the framers, as I noted at the outset, armed the Court with no swords to carry out its pronouncements. President Andrew Jackson in 1832, according to an often-told legend, said of a Supreme Court decision he did not like: “The Chief Justice has made his decision, now let him enforce it.”144 With prestige to persuade, but not physical power to enforce, with a will for self-preservation and the knowledge that they are not “a bevy of Platonic Guardians,”145 the Justices generally follow, they do not lead, changes taking place elsewhere in society.146 But without taking giant strides and thereby risking a backlash too forceful to contain, the Court, through constitutional adjudication, can reinforce or signal a green light for a social change. In most of the post-1970 gender-classification cases, unlike Roe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive. Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue. The most recent Planned Parenthood decision147 notably retreats from Roe148 and further excludes from the High Court’s protection women lacking the means or the sophistication to surmount burdensome legislation.149 The latest decision may have had the sanguine effect, however, of contributing to the ongoing revitalization in the 1980s and 1990s of the political movement in progress in the early 1970s, a movement that addressed not simply or dominantly the courts but primarily the people’s representatives and the people themselves. That renewed force, one may hope, will—within a relatively short span—yield an enduring resolution of this vital matter in a way that affirms the dignity and equality of women.150
Conclusion
To sum up what I have tried to convey in this lecture, I will recall the counsel my teacher and friend, Professor Gerald Gunther, offered when I was installed as a judge. Professor Gunther had in mind a great jurist, Judge Learned Hand, whose biography Professor Gunther is just now completing. The good judge, Professor Gunther said, is “openminded and detached . . . heedful of limitations stemming from the judge’s own competence and, above all, from the presuppositions of our constitutional scheme; th[at] judge . . . recognizes that a felt need to act only interstitially does not mean relegation of judges to a trivial or mechanical role, but rather affords the most responsible room for creative, important judicial contributions.”151
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I. This article, first published in 67 New York University Law Review 1185 (1992), originated as the twenty-fourth James Madison Lecture on Constitutional Law at New York University School of Law on March 9, 1993. Justice Ginsburg acknowledges with appreciation the assistance of her 1992–93 Term law clerks, David Ellen and Malla Pollack, in the preparation of the lecture and this article.
5
“A Decent Respect to the Opinions of [Human]kind”
The Value of a Comparative Perspective in Constitutional AdjudicationI
I have titled this lecture “ ‘A Decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication.” The “Decent Respect” quotation, you likely noticed, comes from our Declaration of Independence. To explain why the thirteen colonies were severing their ties with the British Crown, Thomas Jefferson declared, at some length, the causes for “the Separation.” He did so prompted by “a decent Respect to the Opinions of Mankind.” The aim was to expose our reasons for becoming the “United States of America” to the scrutiny of “a candid World.”
The founding generation recognized that becoming part of the world of nations meant that what we do would be watched in other lands; it also meant that we would become a participant in the formulation, recognition, and enforcement of international law. Thus, Article VI of the Constitution made treaties the supreme law of the land, on a par with laws enacted by Congress. And among the powers of Congress enumerated in Article I, §8, the framers specified: “To define and punish . . . Offenses against the Law of Nations.” John Jay, first Chief Justice of the United States, expressed the common understanding. He wrote, in 1793, that, “by taking a place among the nations of the earth,” the United States had “become amenable to the law of nations.” That term, “law of nations,” is the core of what we today call international law.
Our fourth, longest-tenured, and supremely eminent Chief Justice, John Marshall, drew a distinction important to comprehend. He distinguished the “law of nations,” which binds U.S. courts, and the law and judicial decisions of foreign countries, which do not. In an 1815 decision, Marshall explained that the law of nations is part of the law of our land because of our membership in a world of nations. But decisions of foreign tribunals about their own domestic law are not controlling authority for U.S. courts. Even so, Marshall added, decisions of the courts of other countries merit respectful attention for their potential persuasive value when they address problems similar to those we encounter.
For the most part, in the two centuries since John Marshall headed the U.S. judiciary, both federal and state courts have understood the difference: international law is part of our law; foreign law is not
, but we can be informed by how jurists abroad have resolved problems resembling those we face. A comprehensive survey published in 2005 in the William & Mary Law Review, running some 166 example-filled pages, shows the considerable extent to which courts in the United States, from the start, have taken account of foreign law and decisions of foreign courts.
I will digress for some personal history. It will help you to understand why what I call “looking beyond our borders” seems to me altogether fitting and proper for lawyers and judges in the United States. Two years out of law school, in 1961, I was hired by the Columbia Law School Project on International Law to coauthor a book on the stirring topic: Civil Procedure in Sweden. The book was part of a series in which a U.S. author teamed with a lawyer from the country whose system was described. Sweden was chosen because, in the 1940s, it had revised its Code of Judicial Procedure, a typically civil law–style code, to infuse what Swedish jurists conceived to be the best of the Anglo-American system. The other two countries examined by the Columbia Project were France and Italy. (The German system had already been described in two comprehensive 1958 articles by Professors Kaplan and von Mehren published in the Harvard Law Review.)
I had no familial or other ties to Scandinavia so I wondered, why me? There was a commercial payoff in knowing something about the French and Italian systems, but Sweden had a rather small population, no larger than the population of my hometown, New York City, and the only clear benefit I grasped immediately would be understanding the language spoken in Ingmar Bergman films. I suspect Columbia looked down the list of women graduates (men were engaged to write about French and Italian procedure) and that is how the project came to me.
My Own Words Page 24
