March is Women’s History Month, and this year’s celebration of the historic and contemporary contributions of women in this country got off to quite a kick-start with Justices Elena Kagan and Sonia Sotomayor making their presence felt during arguments on a challenge to the Voting Rights Act, currently in front of the Supreme Court.
Last Wednesday, when the Supreme Court heard from counsel, Justice Scalia in particular made no secret of his contempt for this law and presumed to know that Congress didn’t really mean it when they reauthorized the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House. Instead, Scalia speculated that these elected officials were secretly afraid to vote against this “perpetuation of racial entitlement.”
Justice Elena Kagan wasn’t about to let that pass. She challenged Scalia, interrupting his questioning of counsel and addressing him directly, arguing that such an overwhelming majority of senators was a “good argument” for the need for the law.
“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Justice Sonya Sotomayor took up the issue with counsel, and challenged whether Shelby County, Ala., was the right part of the country to be challenging a key provision of the Voting Rights Act.
“Some parts of the South have changed. Your county pretty much hasn’t,” said Sotomayor. “You may be the wrong party bringing this.” Kagan added, “Under any formula that Congress could devise, it would still capture Alabama.”
Indeed. Equality under the law must be specifically protected and vigilance is required.
The U.S. Constitution does not mention God, but the Declaration of Independence does, and grounds the struggle for political equality in the fact that there is a Creator who endows us with “certain unalienable Rights.” Well, at least at that time (1776), it was thought the Creator endowed only some of us with unalienable Rights. Functionally, women, slaves and men of property were not included.
Through war and protest, some of these rights have been obtained, but they are not secure. The fight for gender and racial equality continues. This struggle is our history, and still our contemporary challenge. In my Christian faith, that means women and men and people of all races are equal because they were created equal by God.
It is a fundamental challenge of our democracy to continue to secure equality for all, as we are all created equal. The continuing struggle to secure equal rights is very visible on today’s Supreme Court.
For example, one cannot be an exceptional professional woman, as both Elena Kagan and Sonia Sotomayor clearly are, without having experienced gender discrimination in one’s life. Kagan, as a member of a religious minority, would also be aware from her own life of the continuing need for laws that protect the rights of minorities. The same would be true of Sonia Sotomayor, who as a Hispanic woman lawyer has shown herself sensitive to the needs of minorities before the law.
But life experience as a minority alone does not necessarily make anyone sensitive to the special struggles of groups of Americans. The career of Justice Clarence Thomas is testimony enough to disprove that.
No, there is a legal philosophy at work here that I would argue is almost biblical in its care for the role of law in the creation of justice and fairness. “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” (Leviticus 19:15)
These two women were, I believe, speaking in the tradition of the great jurist of equality under the law, Justice Thurgood Marshall. Indeed, Elena Kagan clerked for Supreme Court Justice Marshall, and when Justice Scalia spoke the appalling words, “perpetuation of racial entitlement,” one can almost draw a direct line to Justice Marshall who too would have made short work of such a racial canard.
Sonia Sotomayor as well has been compared to Justice Marshall in her choice to place her legal voice at the service of the dispossessed in a case she championed before becoming a Supreme Court Justice. The New York Times opined that, “With this [case], Justice Sotomayor set herself up to be the court’s hard-charging liberal — à la Justice Thurgood Marshall, who liked to take his shots, diplomatic maneuvering be damned.”
Justice Sotomayor recently took the unusual step of condemning racially charged language used by a federal prosecutor in Texas in a case the Supreme Court had decided not to pursue. Sotomayor wrote that the prosecutor had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”
While their legal philosophy is certainly influenced by the great Justice Thurgood Marshall, as well as, of course, others, these two women bring something else to the court. They bring their specific experience as women to this legal work. Discrimination against women, as women, has been, and continues to be, a great legal and moral challenge to equality in the United States.
I recently watched “Makers: Women Who Make America,” a three-hour PBS documentary showcasing the history and contemporary lives of women in America, and their struggles for equality. It was both heartwarming and heartbreaking. Women have struggled so long for equality in their persons and in public and political life. There have been many great achievements, and there has been enormous backlash and loss of hard-won gains.
This excellent film is certainly an important way to mark Women’s History Month.
In the documentary, Congresswoman Shirley Chisholm is profiled for her ground-breaking election to Congress as the first African American woman, and the first to run for president. Congresswoman Chisholm shocked many when she famously said, “In the field of politics, I have met much more discrimination as a woman than being black.”
But this is not an either/or issue, where one oppression has to be seen as worse than another to be validly oppression, as Congresswoman Chisholm well knew. It is the concept of oppression itself that must be challenged, and Justices Kagan and Sotomayor are doing a great job of that on the Supreme Court.
I would have loved, however, to hear what Congresswoman Shirley Chisholm would have had to say to Justice Scalia last week.
But while sadly we cannot have that, we can look forward to the fact that now, and for the foreseeable future, every month will be Women’s History Month at the Supreme Court. C
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