Rewriting Judicial Opinions and the Feminist Scholarly Project

Abstract

In late 2018, the Notre Dame Law Review Online will publish a series of ten essays that reflect on the significance and impact of the book Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press 2016) ("U.S. Feminist Judgments"). The contributors to the symposium include the three editors of U.S. Feminist Judgments and eleven other commentators — among them law professors and practicing attorneys as well as a retired judge and a political scientist. As the name of the book implies, feminist judgments are judicial opinions rewritten from a feminist perspective. The essays in this online symposium respond to several questions raised by the rewriting project: whether this exercise in re-imagining key Supreme Court decisions enhances and expands the feminist scholarly project, how the shadow opinions can be used by lawyers in the courtroom, and how studying the rewritten opinions offers an opportunity for students to better understand that particular legal results are neither predetermined nor inevitable, but rather the product of multiple factors, including the perspective of the deciding judge.

The symposium's diverse contributors engage with the book from varying perspectives, with some focusing on doctrine, others on theory, and still others on process. The end result is a rich and comprehensive look at the volume whose 25 alternative judgments might have effected a legal and cultural shift in the United States in terms of gender equality. U.S. Feminist Judgments connects with similar feminist judgments projects all over the world and has inspired a series of subject-matter specific books that are forthcoming from Cambridge University Press.

The symposium's reviewing contributors are Leah Ward Sears, formerly the Chief Justice of the Georgia Supreme Court; attorneys Sarah Weddington, who argued Roe v. Wade before the Supreme Court of the Supreme Court of the United States; Gillian Thomas of the ACLU Women's Rights Project; Sasha Greenberg of Smith, Gambrell & Russell, LLP in Atlanta, Georgia; political scientist Claire Wofford (College of Charleston); U.S.-based law professors Noa Ben-Asher (Pace University); Margaret Johnson (University of Baltimore); Elizabeth Kukura (Drexel University); and Sandra Sperino (University of Cincinnati); and Australia-based law professors Gabrielle Appleby (University of New South Wales) and Rosalind Dixon (University of New South Wales).

The first essay in the symposium, written by Linda L. Berger, Kathryn M. Stanchi and Bridget J. Crawford, the editors U.S. Feminist Judgments and the U.S. Feminist Judgments series of books, explores how feminist judging is a complex and potentially transformative practice (as well as one consistent with a judge's ethical obligations). The essay also examines the interplay between and among law, public opinion and judicial decisions in the United States and all around the globe, with reference to sister feminist judgments projects in Canada, England, Australia, Ireland, New Zealand, Scotland, India, Mexico and a pan-European collaboration. The book's editors argue that feminist legal theory's capacious analytic tools can highlight bias in the law that is based on race, gender, sex, sexuality, ethnicity, class, nationality, language, culture, ability, immigration status and religion. The ultimate goal of U.S. Feminist Judgments is to encourage students, lawyers, judges, law professors, and members of the public to understand that the law’s future trajectory is not etched in stone. The legal system can become more inclusive and just; feminist jurisprudence offers one pathway toward that future.

Keywords: feminist legal theory, jurisprudence, feminist judgments, judges, judging

JEL Classification: K00, K1, K19, K40, K49, Y8, Y90