Legal Feminism: Activism, Lawyering, and Legal Theory

8 The Future of Legal Feminism

The Future of Legal Feminism The result of men constantly, fervently and publicly thanking God that they are not women has been to make it hard for women to thank God that they are. —Richard Rorty We’re not crazy. We’re just discouraged. —Stan Laurel In the feminist law teaching business, there is an exercise all teachers and students eventually go through. It is called “How should the case have come out?” This exercise is not the usual law school class discussion about how doctrine and facts interact. This feminist exercise is about how legal disputes should come out in terms of the bigger pictures of social relations and systems of disadvantage. The exercise has become more complex as feminist legal theory has become more complex , drawing into question legal strategies that once seemed sound, and allowing for results to be reinterpreted in myriad ways. Thus, for example, what of a case that forced a state-supported military college to open its doors to women, only in 1996, after a century and a half of producing male “citizen-soldiers” in a culture that can be described only as women-loathing?1 What of the fact that Justice Ruth Ginsburg, formerly a crusading feminist litigator, consistently referred to that institution in deferential, even glowing, terms?2 Is opening the college to women what a commitment to sex equality required? If it were technically possible as a constitutional remedy, shouldn’t the Virginia Military Institute have been closed or deprived of any public support ? Wouldn’t it have been far better to seal over that particular abyss once and for all? As noted in chapter 5, militarism is a context where feminism focuses discussion in a particularly acute way. 8 137 As another episode in this exercise, consider the Supreme Court decision holding that peremptory challenges to potential jurors cannot be based on sex. The matter happened to involve the exclusion of male jurors in a case seeking to establish paternity and an obligation for child support.3 Like the decision forbidding race-based peremptory challenges on which it followed, this 1994 decision caused a great deal of consternation among those trial practitioners who thought the entire point of peremptory challenges was to get rid of jurors for any reason whatsoever , the more prejudicial the better, in some sense. Even if we can administer the notion of “any reason at all except these reasons,” on what grounds must juries be race- and gender-integrated, if law is raceand gender-blind? Most important from my point of view, what of Justice O’Connor’s “intuition that in certain cases a person’s gender and resulting life experiences will be relevant to his or her view of the case?”4 In half-joking conversation, women have often noted that because men haven’t done such a swell job running the world, maybe women should get a turn. Just to see how it would go, and without necessarily making any essentialist commitments, does anybody have a problem with having all-female juries for a while? How about half-andhalf juries, or a half-and-half Congress, or a rotating White House? I don’t know whether these proposals could be structured in serious or plausible ways. Perhaps formal equality and administrative difficulties shut them down before anyone could advance the conversation any further. There’s another kind of critique, however, that I’d like to reach here. That kind of critique might be called the matter of “gender trouble .”5 It describes the set of problems we buy when we rely on any fixed gender notions at all. The insights collectively called “gender trouble” can loosely be identi fied as “poststructuralist.” That tag encompasses a lot. The “post” part refers to a stage beyond something called “structuralism,” a set of twentieth-century efforts to go beyond mere skepticism. In the struggle described in chapter 2, by the early twentieth century there were no longer metaphysically authoritative sources—neither religious nor scientific nor philosophical sources—of comfort for human anxiety. “Structuralism” was a movement arguing that though we may not be able to discover or depend upon any universal laws of epistemology, ethics, or politics, perhaps we can locate in language some consistencies that reveal the “deep structures” of our species’ ways of getting through. Led by the Swiss linguist Ferdinand de Saussure, the struc138 | The Future of Legal Feminism turalists...