The Supreme Court is still not moving fast enough to the left on social issues to please some liberals, and New York Times Supreme Court reporter Adam Liptak is on it. His latest front-page report, "Justices’ Rulings Advance Gays; Women Less So," used a speech by liberal Justice Ruth Bader Ginsburg as his launch point. Not once did he question Ginsburg's liberal reasoning in his front-page article.
Liptak has previously described the Supreme Court's Hobby Lobby decision as a defeat for women's rights, without specifying what right was being taken from women. He has also suggested the U.S. Constitution as old and outdated for failing to guarantee entitlements and health care for its citizenry.
Liptak warned on Tuesday's front page:
When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.
Liptak said the Court had indeed employed the "soaring language of 'equal dignity' when it came to gay rights. But the outlook is more grim, "paternalistic," and "troubling" (i.e., less liberal activist) when it comes to women's issues.
But in cases involving gender, [Ginsburg] said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality.
Justice Ginsburg is not the only one who has sensed that cases involving gay people and women are on different trajectories.
At the same time, legal scholars say, the court has delivered blows to women’s groups in cases involving equal pay, medical leave, abortion and contraception, culminating in a furious dissent last month from the court’s three female members.
Many forces are contributing to this divide, but the most powerful is the role of Justice Anthony M. Kennedy, the court’s swing vote. Legal scholars say his jurisprudence is marked by both libertarian and paternalistic impulses, ones that have bolstered gay rights and dealt setbacks to women’s groups.
Justice Kennedy writes in a different register in cases about women’s sexual freedom and motherhood, said David S. Cohen, a law professor at Drexel University.
In those cases, Justice Kennedy tends to vote with the court’s four more conservative members -- Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- and to read statutes narrowly in favor of employers and religious freedom. In an article in The South Carolina Law Review surveying “Justice Kennedy’s gendered world,” Professor Cohen concluded that “Justice Kennedy relies on traditional and paternalistic gender stereotypes about nontraditional fathers, idealized mothers and second-guessing women’s decisions.”
Perhaps the most memorable -- and to women’s groups the most troubling -- passage of this sort came in Justice Kennedy’s 2007 majority opinion in a 5-to-4 vote sustaining the federal Partial-Birth Abortion Ban Act.
In Liptak land, "women's rights" = abortion.
[Ginsburg] summarized her dissent in the Hobby Lobby case from the bench, a rare move signaling vehement disagreement, one that happens perhaps four times a term. When Justice Ginsburg issues an oral dissent, it is very often in a case concerning women’s rights.
In 2007, Justice Ginsburg, the only woman on the court at the time, dissented from the bench in the abortion case, calling Justice Kennedy’s worldview alarming. A month later, she issued a second oral dissent in another 5-to-4 decision, Ledbetter v. Goodyear Tire and Rubber Co., this one protesting what she called the majority’s cramped interpretation of time limits for filing sex discrimination suits. Prompted by the dissent, Congress later overturned the ruling.
She dissented again from the bench in 2012 in Coleman v. Court of Appeals of Maryland, a 5-to-4 decision limiting the availability of medical leaves. In his controlling opinion, Justice Kennedy said he saw no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” while Justice Ginsburg said from the bench that the decision made it harder for women “to live balanced lives, at home and in gainful employment.”
The part of the Constitution that Ginsburg claimed granted one the right to live the feminist idea of a "balanced life" was not cited by Liptak. Instead he gave Ginsburg an unchallenged platform for her feminist lament of isolation during her time of being the only woman on the Court, noting that the three current female Justices "often vote together," which is somehow not troubling at all. Only when her conservative male colleagues do the so is it cause for concern:
Justice Ginsburg has suggested that her male colleagues sometimes do not hear a woman’s voice, including her own. In a 2009 interview with USA Today, she said the other justices, who were then all men, sometimes ignored the arguments she made at their private conferences.
“I will say something -- and I don’t think I’m a confused speaker -- and it isn’t until somebody else says it that everyone will focus on the point,” Justice Ginsburg said.
Between 2006 and 2009, after the resignation of Justice Sandra Day O’Connor and before the appointment of Justice Sonia Sotomayor, Justice Ginsburg was the lone woman on the court, a situation she said she found isolating and disturbing. Now, with the addition of Justice Elena Kagan in 2010, there are three women, and they often vote together.