Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment

Abstract

This essay, written in connection with the University of Baltimore School of Law’s 10th Annual Feminist Legal Theory Conference, explores the relationship between the real-world practice of law and feminist legal theory. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016) was a collaborative effort of over 50 law professors and practitioners to rewrite, from a feminist perspective, key Supreme Court decisions on gender, using only the precedent in effect and the facts known at the time of the original decision. This essay situates the U.S. Feminist Judgments project and other international feminist judgments projects within the scholarly tradition of feminist legal theory, and explores why the socio-legal movement of rewriting judicial opinions from a feminist perspective is essential in a world that is increasingly interrelated and international. The essay argues that feminist judgments demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. The essay concludes with an examination of three recent Supreme Court opinions – Justice Sotomayor’s dissent in Utah v. Strieff, Justice Ginsburg’s majority decision in Sessions v. Morales-Santana, and Justice Gorsuch’s dissent in Perry v. Merit Systems Protection Board – as consistent (or inconsistent) with the theories and methodologies that are characteristic of feminist judgments.

Keywords: feminist judgments, judging, judges, feminist legal theory, Supreme Court, Strieff, Morales-Santant, Perry v. Merit Systems Protection, Sotomayor, Ginsburg, Gorsuch

JEL Classification: K1, K19, K17, K14, K40