Why I Am Editing This Book: Linda Berger, Feminist Judgments: Rewritten Opinions of the United States Supreme Court

Hasn’t every law professor thought she would have done a better job with a decision than the Supreme Court did—in at least a dozen or two of the cases she cares most about?cropped-USFJPBannerWeb111

Suppose that in Bradwell v. Illinois (1873), rather than upholding the Illinois decision to deny a woman the right to practice law on the ground that nothing in the Constitution prohibited the state from its decision, the Court had supported the equal protection rights of all citizens to earn a living. Or, what if in Rostker v. Goldberg (1981), instead of finding the men-only draft registration requirement to be constitutional, the Court had recognized that by requiring men and prohibiting women from registering for the draft, Congress was perpetuating stereotypes that harmed both men and women?

So there was never any doubt about the answer when Kathy Stanchi asked if I would be interested in working with her and Bridget Crawford as editors of what will be published as Feminist Judgments: Rewritten Opinions of the United States Supreme Court (forthcoming from Cambridge in 2016).

By producing alternative judgments as seen from a feminist perspective, the Feminist Judgments Project is a form of academic activism, an initiative whose goal is to change accepted views and to shift judicial consciousness. The project examines the influence of feminist legal theory and women decision makers on how judgments are actually reached as well as suggesting that both (feminist legal theory and women decision makers) hold great potential to affect the future development of the law.

The Supreme Court opinions being rewritten were chosen as particularly significant and ripe for rewriting with the aid of a diverse and distinguished group of leading feminist and constitutional law scholars making up the project’s Advisory Panel. The editors then put out a public call for authors, allowing prospective authors to apply and to indicate their preferences for rewriting the opinions or writing the commentary on the cases they selected. With the goal of choosing the most qualified, interesting, diverse range of authors, and taking into account the input of our Advisory Panel, we narrowed the list down to the twenty-four opinions now in the editing stages.

As it continues, the project and the book also will afford chances for comparison and discussion with international counterparts. The U.S. Feminist Judgments Project was inspired by a similar venture in England, which itself was modeled on the Women’s Court of Canada. Similar projects are underway in Ireland and Australia as is a project involving feminist rewriting of judgments in international law.

I cannot imagine another project that offers more openings for reflection, more engagement with ideas, and more opportunities to collaborate with diversely brilliant and uniformly thoughtful authors and co-editors. The most hopeful and rewarding part of the editing experience has been the collaboration that permeates the process—and, in particular, to hear from authors that they have found a way to make a real difference in the reasoning and the outcome of a particular case. As one author wrote,

I realized that I could write a revised opinion that could largely be based on arguments actually presented to the Court, and on precedents and sources already available.  In other words, I could write a “feminist judgment” that actually could have happened!  Perhaps a bit radical, but nonetheless quite possible for its time.  And ah then, how the subsequent development of sex-equality law might have been altered!

Linda Berger

Linda Berger is the Family Foundation Professor of Law at UNLV. Her research, writing, and teaching converge on the study and practice of legal rhetoric, drawing on cognitive psychology as well as on composition, rhetoric, metaphor, analogy, and narrative theory. She is one of the co-editors of U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge 2016), the first volume in an ongoing series.