But seriously, some take things further and argue that women and minorities are just not as capable of rendering opinions that objectively adhere to the Rule of Law as are the opinions that white men render. Such a claim, of course, is profoundly egocentric. It first assumes that white maleness is not itself an identity, and then that only those other types of human beings have identities that they play identity politics with. It keeps white men at the normed center, because as the Default Human Being their experiences are never subjective; it is the experiences of all other human beings that revolve in all their subjective, wishy-washy glory around that of the neutral white guy.
Moreso than that, however, given the nature of constitutional law, which I have written about here, such a claim demonstrates historical, legal, and factual ignorance. When I hear someone start talking about "The Rule of Law," an alarm bells goes off in my head telling me that I'm probably listening to a person who's being histrionic, trying to invoke fear, and/or trying to sound especially intelligent. Yet, not only is the phrase "Rule of Law" incredibly vague, history has shown that most judges, white dudes included of course, have been quite willing to write opinions that technically comport with The Rule of Law but, conveniently, do not require eschewing their personal policy preferences in the process.
It is a fiction, in short, that judges are neutral arbiters of the law who merely apply objective law to the case at hand. The Supreme Court, the vast majority of whose members have been men, has a long and notorious history of having Justices of all political persuasions who seem to "...first choose what the outcome should be and then reason backward to supply a rationalization, replete with the appropriate rules and precedents, of which there are enough on any side of an issue to make any argument seem to respect tradition and professional expertise." I guess, however, for lucky magical unicorn reasons that is all just Objective Rule of Lawness in action. Some people find it a problem only now, when women and minorities might get their shot at being a Decider.
All this being said, today's post will, I hope, further demonstrate how white men on the Supreme Court have used their positions to the benefit of their own identities at the expense of those who they have deemed to be not like themselves. The point of all this is to conclude that the demographic composition of the highest court in the land does, actually, matter. Human beings have a funny tendency to Other-ize people who are not like themselves and view their own experiences in the world as the objective norm. Doing so enables people to deprive these Others of equal rights and to do so with the approval of their consciences.
In this next Fannie's Room Worst Supreme Court Case for Women You've Never Heard About #2, we observe how the Supreme Court finagles an opinion that recognizes the citizenship of women while simultaneously arguing that women are that odd class of citizen to whom the protections of the US Constitution does not apply.
Minor v. Happersett
Minor v. Happersett, in short, is about women's right to vote. In 1872, Virginia Minor, a vagina-American, applied to register to vote in Missouri. The registrar denied her because the Missouri Constitution only granted the right to vote to "every male citizen of the United States." Ms. Minor sued the registrar and argued that the denial of her right to vote was unconstitutional under the 14th Amendment to the US Constitution, which states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws" [emphasis added].
As you can see, the Missouri Constitution and the US Constitution were in conflict. The Missouri Constitution denied a privilege to some citizens of the United States while the US Constitution prohibited such a denial. Let's sit back and watch the men of the Court reconcile this conflict.
First, they acknowledged, "There is no doubt that women may be citizens. They are persons...." Okay, if I may interrupt, can you imagine a court declaring that white men were citizens and, even, persons? Of course not. That the Court feels compelled to iterate the obvious sketches me out a bit. Perhaps by acknowledging woman's citizenship and personhood under the Constitution, the Court will then feel justified in treating women as less than full citizens and persons (see, e.g., protesting too much, etc.). Let's institute a countdown, in 3-2-1...
After a lengthy discussion detailing how one becomes a citizen, the Court conveniently reframes the question. (Supreme Court justices love to do this!) To an outside observer, the facts, issue, rule, application, and conclusion are rather clear cut: Women are citizens. The US Constitution prohibits a state from denying citizens the privileges of citizenship. A state is denying some citizens the privileges of citizenship. Therefore, the state is acting in an unconstitutional manner. But alas, by re-framing the question, the Court is able to come to a different conclusion.
The real issue, they declare is not how to reconcile conflicting federal and state constitutions, but rather "whether all citizens are necessarily voters." That is, do citizens who are women have the rights that Real Citizens (ie- men) have? The Court answers, predictably, in the negative. Despite the 14th Amendment's Privileges and Immunities Clause, the Court went on to articulate that voting registration was a matter of state concern that should not be interfered with. And furthermore, in a circular appeal to tradition that is oh so surprising coming from learned men, the Court argued that the 14th Amendment "did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it [emphasis added]." In other words, even though the 14th Amendment guarantees equal privileges to all citizens, vagina-citizens had never been able to vote so they should not now be able to vote even with this newfangled amendment.
That sort of reasoning makes one wonder. If the 14th Amendment only applied to rights people already had, that would sort of make the amendment meaningless, wouldn't it? It's sort of like saying that thirsty people should be allowed to drink water, but then not actually giving them water because thirsty people don't have water yet. Details shmetails.
I suppose I should mention that I have to give the men on the Court props for at least supplying legal rationalizations for their conclusions. This comes in stark contrast to Bradwell v. Illinois where the Court found "elaborate argument to be unnecessary" on the issue of a woman's admittance to the legal profession.
To end here, I think the Court already had its mind made up before it engaged in any legal analysis. Perhaps working backward from their conclusions, they acknowledged the inescapable fact that women were indeed persons and citizens of the United States, but then went on to treat women as a different sort of citizen whose privileges and immunities could, in fact, be denied. Who would question that had the Court been comprised of 9 women, as opposed to 9 men, we would have seen a different outcome here? Our legal system was created by white men for white men in order to preserve and protect their own interests, much like a giant affirmative action program. The law exists to preserve the power and interests of those who have created it. That's why the composition of the Supreme Court matters, and that's why it requires diversity.