By Shilpa Sadhasivam
Photo from Anna Moneymaker/Pool via Reuters
Watching the Supreme Court’s political bent swing from conservative-leaning to firmly conservative was a resounding blow to political leftists. The rapid replacement of revered feminist Justice Ruth Bader Ginsburg with conservative Justice Amy Coney Barrett created great anxiety regarding Roe v. Wade, Obergefell v. Hodges, and other civil rights issues. Even deeper, her confirmation reflects a tension between feminist intentions of having women occupy positions of power and some powerful women’s anti-feminist ideologies. This tension will only increase as more women of conservative backgrounds reach positions of power.
Right-wing Americans revere Justice Barrett as a new kind of feminist: one that seeks to excel as a woman with prestige and influence while adhering to politically conservative ideology. She is a former clerk and admirer of Justice Antonin Scalia, who popularized new textualism, a theory of legal interpretation noted in conservative jurisprudence. Justice Barrett is also affiliated with the Federalist Society, an organization that advocates for conservative textualist interpretations of the law and grooms law students with these preferences for positions of power.
More importantly, her history as a judge reflects her conservatism. During her short tenure on the 7th Circuit Court of Appeals, Justice Barrett twice joined dissenting opinions that asked for decisions blocking pro-life laws to be thrown out and reheard. After a panel of judges blocked an Indiana law that would make it harder for a minor to have an abortion without parental notification, Justice Barrett voted to have the case reheard. See Planned Parenthood of Indiana & Kentucky, Inc. v. Box, 949 F.3d 997 (7th Cir. 2019). In 2018, a panel ruled that requiring funerals for fetal remains of an abortion or miscarriage was unconstitutional. Justice Barrett was among four judges that preferred the full court to weigh in and suggested that the law might be constitutional.
Regarding sexual assault, in 2019, Justice Barrett ruled that Purdue University sexually discriminated against a student by suspending him for a sexual assault allegation, which made it easier for accused students to challenge sexual assault proceedings against them. See Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019). As pertaining to immigrant rights, Justice Barrett dissented against a hold on a Trump administration policy that would deny green cards to immigrants using public assistance. Despite a limited judicial record, Justice Barrett has a history of conservative outcomes in her decisions and dissents, none of which align with intersectional feminist positions.
On the Supreme Court, Justice Barrett now very firmly sits in a position of power that allows her conservative ideology to impact marginalized people on a global scale. Her decisions have the potential to restrict access to abortion, a restriction that would predominately harm Black, Latinx, Indigenous, and low-income women. Her conservatism on LGBTQ+ rights could hinder marriage equality, enable discrimination, and reduce the already degraded structures that support Black and trans* people of color. Her pro-business decisions could indirectly increase the exploitation of women and gender minorities in the Global South, reduce the economic leverage of women laborers, and exacerbate the already severe wealth inequality in the United States. In decisions regarding access to justice and economic inequality, Justice Barrett’s confirmation has the potential to harm the most marginalized women, who often bear the brunt of these crises. Critics noted that her ascent to the Supreme Court was made possible by progressive women; however, Justice Barrett can close access to justice and equality for women throughout the United States. Herein lies the tension of tokenistic feminism placing women in positions of power who do not reflect progressive, feminist, and antiracist values.
Justice Barrett is the product of a second-wave feminist movement modified by neoliberal politics that prioritizes the ascent of women into positions of power without analyzing how those individuals and positions can oppress other women. In Nancy Fraser’s Fortunes of Feminism, Fraser chronicles second-wave feminism diverging between gender advancement that follows economic liberation and social solidarity versus a path that sought individualist equality with men and careerist advancement. [1] Neoliberal ideals of productivity and free-market capitalism led to the latter, producing a two-earner family with limited class solidarity, political capital, and depressed wages.[2] Advancement for women’s political economy was ignored in favor of the tokenism of select women ascending positions of power without deconstructing the problematic nature of these positions.[3]
It became mainstream to look at women as diversity tokens in leadership positions rather than redistributing the unequal economic and political capital of which women of all backgrounds were deprived. [4] Coming into today’s times, this looks like the prioritization of women as CEOs, investment bankers, politicians, and Supreme Court justices, and a reduction of focus on women laborers, class solidarity, and gendered racism.[5] However, there have been emerging critiques of women that occupy these positions and the oppressive power of the positions themselves.
Here it is relevant to look at the laudations of Justice Barrett as a woman on the highest court of the United States, a position which is and has been predominantly occupied by men. Congratulatory nods toward Justice Barrett’s female representation reflect the over-prioritization of women ascending to positions of power rather than the redistribution of resources that allow women and gender minorities to be liberated across all classes, races, sexualities, and abilities. A hyper-individualistic, tokenizing feminism that produces painful legal implications for marginalized groups is not equality-focused, intersectional feminism. The implications of her power will have generational effects on the legal landscape for women and gender minorities as it relates to access to justice, resource distribution, criminalization, and other systemic issues.
Though Justice Barrett has just been confirmed, the ramifications of her position are already beginning. As a new justice on the Supreme Court, Justice Barrett recently participated in a capital punishment case that allowed the execution of Orlando Hall to proceed. The racialized impact of capital punishment cases reflects the disproportionate effects the criminal justice system has on black communities. Justice Barrett’s participation is not representative of intersectional feminism that considers power dynamics and the impact an institution like the Supreme Court has on black communities, and more specifically, black women. As Justice Barrett’s tenure on the Supreme Court continues, there will likely be more decisions that significantly impact marginalized communities and the women and gender minorities within them.
The rise of women with oppressive politics is not a disappearing phenomenon. Women are now entering law school at higher rates than men for the third year in a row. The Federalist Society is an active organization at many top law schools, with some of its members consistently being women or gender minorities. Conservative-leaning colleges and graduate schools still have numerous women on their faculties and in their student bodies who will likely ascend the rungs of powerful institutions. This phenomenon of conservative women expounding feminist-adjacent virtues without holding intersectional beliefs of equality is not new, nor does it show any particular sign of slowing.
The focus of tokenistic feminism related to judges and justices needs to move beyond recognition and accumulation of individual power and towards an intersectional feminism that focuses on leaders who redistribute power and economic justice for marginalized women and gender minorities. Progressive feminist judges who embrace and enable grassroots and labor organizing must redistribute political capital and leverage to women who lack it. Mainstream feminism needs to critique and address the position of power that women occupy and institutions themselves. Feminists cannot aim only for women reaching high legal positions but most also aim for women who can distribute power and resources while in those powerful positions.
Shilpa Sadhasivam is a first year student at Harvard Law School.
[1] Nancy Fraser, Fortunes of Feminism 209-26 (2013).
[2] Id.
[3] Id.
[4] See generally Catherine Rottenberg, The Rise of Neoliberal Feminism (2018).
[5] Id.