Civil and Human Rights

#PurpleChairChat Episode 13: When Women Speak: Feminist Rhetoric and the Law

RBG shifted the rhetorical boundaries of jurisprudence on a wide range of important issues from equal protection to reproductive rights. CAC’s President Elizabeth Wydra and Colorado State University’s Professor Katie Gibson discuss feminist rhetoric and the law. 

Show Transcript

ELIZABETH WYDRA: Hello, I’m Elizabeth Wydra President of the Constitutional Accountability Center and welcome to today’s Purple Chair Chat. We call these conversations Purple Chair Chats because normally we would be coming to you from the iconic purple wing chairs of CAC’s Washington, D.C. offices. But we like so many of you have been working from home during the covid-19 pandemic and making do. So many of us have lost so much during these difficult times, and I sincerely hope that you are staying safe and well and finding hope in the light at the end of the tunnel. 

Purple Chair Chats tackles the important legal, political, and constitutional moments of the day. And today we are closing out Women’s History Month by looking at the powerful progress that is made when women’s voices are heard and heated, from the powerful truth-telling journalism of Ida B. Wells to Vice President Kamala Harris instantly iconic I’m speaking, women have vitally shaped the way we talk about life and the law and our values and intern poured that truth into legal, political, and social progress. 

So it is appropriate that we are joined for today’s conversation by a scholar of rhetoric, Professor Katie Gibson from Colorado State University (CSU). Professor Gibson is the author of the award-winning book entitled Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Rhetoric and the Law. And I am embarrassed I can’t hold it up, but it’s only because it’s on my bedside nightstand. I encourage everyone to check it out because while it’s obviously a scholarly tome, Professor Gibson draws on her own field of rhetoric as well as critical race theory, feminist legal theory, and much more.

I really do think it would be interesting to non-academics and extremely thought-provoking. Professor Gibson received her PhD in Communication, Arts, and Sciences from Penn State University. Also, my parents alma mater. She began her teaching career at Cal State University, Long Beach before joining CSU where she teaches courses including rhetoric and social movements, gender and communication, and rhetorical criticism. All of which I instantly want to be transported back to college and take. Thank you so much for joining us Katie. 

KATIE GIBSON: It’s so nice to be here Elizabeth. I’m deeply appreciative of the work you do at the center, so it’s an honor to join you today. 

ELIZABETH WYDRA: Thank you so much. So a powerful premise of your book and a large part of what you focus on in your work with respect specifically to Justice Ruth Bader Ginsburg has been how she as an advocate as a Justice deeply shifted the way that the law treats women in America. But you know one thing that I think is really interesting about your work coming from it from looking at the way we speak rhetorical standpoint is that you know that in addition to making these powerful substantive arguments, she literally had to create a new way of speaking in the law to make it more inclusive of women’s equality. What do you mean by that? 

KATIE GIBSON: Well when Justice Ginsburg set out as an advocate to fight for women’s rights, she wasn’t just up against a long line of legal precedent. She was also up against the traditional voice of the law, norms of speech that silence the voices and experiences of women, and normalized gender inequality. And so her feminist rhetoric had to really challenge these norms in order to create a space for feminist judgment in the law. Her arguments really challenged the rhetoric of neutrality at the center of the law’s traditional voice. 

So the myth of neutrality, right, works to hide systems of bias and exclusion and privilege that have historically shaped the law. You can look across the separate spheres of opinions and see a clear announcement of neutrality each time that the Court decides that it’s perfectly okay to discriminate against women. The Court explains it is simply following the laws of the creator or respecting the rules of nature. That its decision to treat women as second class citizens is perfectly aligned with the natural order of things.

Ruth Bader Ginsburg voiced a rhetoric of feminist skepticism to interrupt this myth of neutrality and to expose the deep history of patriarchal bias within the American legal system. Her rhetoric of skepticism really models a jurisprudence of close inspection as her arguments unearthed pretext and detailed historical patterns of discrimination and really demand a close eye on logics of exclusion that posture in this language of neutrality. Her voice of skepticism was really significant because it created the discursive space to really reckon with the role of the law as an instrument of patriarchy and her voice teaches us that feminist jurisprudence is inherently disruptive, that these discursive traditions and scripts of neutrality really need to be interrupted and challenge to create space for feminist judgment in the law. 

We can see examples of  her voice doing this work of interruption in her earliest arguments to the Supreme Court. She called out male judges for wearing rose-colored glasses. She criticized sexist attitudes as antiquarian, and she was really forceful in pointing to the Supreme Court as culpable in the subordination of American women. I especially like how she dismisses some of the earlier decisions of the Court. She refers to one as old debri and another as retrogressive in its day and intolerable a generation later. So I think it’s really interesting in thinking about her role as an advocate. She has described herself as a flaming feminist litigator. And I think that looking at her voice of feminist skepticism really helps us appreciate how she brought some fire in her historic effort to move the court. 

ELIZABETH WYDRA: Yeah, you know, I think that’s interesting like despite the kind of newfound like notorious RBG thing, you know, people generally have thought of her as being fairly establishment and I think also because of her demeanor, you know, not being sort of like radical, but I think that you know as you say especially when you think about what she was pushing back against in the beginning and you know, definitely Justice Ginsburg lived along good life, but like she wasn’t 300 years old. We’re not talking that long ago, you know when these sorts of neutral statements from the court really were enforcing these very antiquated subordinating views of women. And I think that one of the things that you point out that in a probably to a scholar of rhetoric is, you know, sort of like duh, but I think for a lot of a lot of us is important to recognize is that you know, the law and who is giving the law purports to be neutral but in so many ways, you know, we need to challenge whether it’s when you know, you have these supposedly neutral statements that are really hiding stereotypes on race, or gender, or class basis, it’s really important to challenge that. And that’s what I think when you talk about Justice Ginsburg’s skepticism of the law, it’s really challenging that as the nature of things and the nature of the law. And one of the key ways in which Justice Ginsburg did that of course was under the 14th Amendment which guarantees equal protection of the law and due process for all persons. Now clearly, even before Justice Ginsburg came around into court, and I would note that the ideas of Pauli Murry were deeply important to her litigation strategy and others like Thurgood Marshall who worked for jurisprudence of racial equality under the 14th Amendment. She had to go in and say that these words which have been there since the 14th amendment was enacted included rather excluded women. How did she do that? 

KATIE GIBSON: Well, I think one of the important ways that she did that was by turning to women’s voices and grounding her legal argument in women’s lived experiences. The brief that she authored in the 1971 case of Reed v. Reed is a really wonderful example of this. This brief was significant because it pushed the court to recognize gender discrimination as a violation of the 14th Amendment for the first time and it really outlined some key moves that would come to define Justice Ginsburg’s feminist jurisprudence. One of these key moves confronted the deep erasure of women’s voices in the law by placing women’s writings and perspectives at the center of her argument. 

And so if you look at Reed you see Ginsburg referencing essays from the women’s movement and reciting theories of feminism. She included all kinds of data that described lived realities of gender discrimination from the struggle to find affordable childcare to the challenges that domestic women workers face. Her brief is populated by a rich context of women’s voices from Pauli Murray to Simone de Beauvoir to Elizabeth Cady Stanton and Sojourner Truth. I think it’s really important as we mark Women’s History Month to appreciate how Ruth Bader Ginsburg mobilized women’s history to widen equal protection analysis and claim space for women’s voices to inform legal reasoning.

A good example of this from the Reed brief is when she recounts the Women’s Rights Convention in Seneca Falls in 1848 and points to words from that convention condemning women’s legal subordination. Another example is when she cites the words of Sarah Grimke to close her first oral argument before the Supreme Court. Ginsburg often talked about feeling like she was kind of a teacher during these years as she worked to shift the perspective of an all-male court and extend the reach of the 14th Amendment and part of how she did this was really by reaching beyond the norms of legal argument. And centering and orienting really her reasoning within women’s voices and perspectives and counter-narratives. This was a really important move as she sought to widen the legal imagination of women’s citizenship and enlarge the promise of equal protection. 

ELIZABETH WYDRA: Yeah, I think you know one of the things that you talked about in your book, which I think that we have a photo of so folks when they’re trying to buy it know what to look for. Yes, that beautiful beautiful collar with the earrings love it. We’ll do our next Women’s History Month on the style of the book. You know, one of the things you talk about is when you include women’s voices, and as you just really well explained in her brief in the 70s, you change not only the option of rights but also what counts as evidence in the law. And I think you know a lot of folks might remember that brief just recently in the Supreme Court case on abortion where you had hundreds of women lawyers, prominent women lawyers, saying that they were allowed to pursue opportunity. They were allowed to escape abuse. They were allowed to make decisions about their own paths in life because they had access to and were able to choose an abortion. 

And that kind of brief being something that is evidence before the highest court in the land on a constitutional rights issue, I think is really important. And so one of the other things that you talk about a lot in your book, which we talk a lot about Constitutional Accountability Center, is the way that Justice Ginsburg placed the reproductive rights and the right to choose abortion specifically in the idea of equal citizenship stature in the 14th Amendment and this is a shift while the right is still protected under the 14th Amendment still rooted in the Constitution it is at least a rhetorical shift of the way that right had been articulated from when she was arguing to the court the 70s, to a male Supreme Court, which couched the right in privacy.

And I thought one thing that was really interesting that I learned in the Amend Netflix series, that wonderful series hosted by and co-created by Will Smith about the 14th Amendment, was that Justice Douglas, one of the men on the Supreme Court who was a really a force behind the right to privacy including reproductive rights, had recently remarried a much younger woman than himself and subject to gossip and rumors and whatever was perhaps keenly aware of the idea that we should be able to have some privacy when it comes to our most intimate relationships. 

But that really brought home the idea that who is on the court and how they connect to these rights really matters. Because to me is it just you know, putting aside as a constitutional scholar and a constitutional lawyer, as a person who wants to have autonomy and control over their basic destiny, the idea that you cannot have equal citizenship stature without having the most fundamental right to control your own body and your own reproductive capacity, you know, that is very powerful. 

And so you know that kind of shift that Justice Ginsburg took from centering the woman’s experience. Centering the person who needs an abortions experience does seem to resonate with the meaning of the 14th  Amendment itself, which makes clear that the brutality of denying enslaved people bodily integrity and autonomy was a grave wrong that the amendment itself sought to correct seems to be an important shift in the way we talk about women’s rights. Why is that? 

KATIE GIBSON: Um, well Justice Ginsburg’s push to reframe abortion from a right of privacy to a right of equality is really important shift because inequality rationale demands that we actually talk about women’s lives. A privacy framework doesn’t really require that we talk about women at all. We can look back to the Roe v. Wade decision and see how a rhetoric of privacy wrote women out of the abortion decision. The opinion centered the wisdom of doctors. It emphasized the importance of protective oversight and it reduced the role of the woman to that of the doctor’s patient. Ruth Bader Ginsburg once said that the view you get from Roe is the tall doctor and the little woman who needs him. Another critic once described Roe as the case of the incredibly disappearing woman. The rhetoric of privacy allows for this erasure of women’s voices and personhood and really severs issues of reproductive control from what is really at stake, which is bodily autonomy and integrity like you point to and the promise of equal citizenship stature. 

And so her effort to articulate an equality rationale was an effort to shift the terms of the debate in a way that centered women’s personhood and brought the stakes of abortion rights in to clear view. From this perspective we can see much more clearly how the ways that restrictions on reproductive control can operate as a tool of oppression. We can also see more clearly how this oppression falls disproportionately on poor women and women of color. Considerations of difference that are really shut out of a privacy framework. Ginsburg one said that all these restrictions on reproductive rights operate against the woman who doesn’t have the freedom to move, to go where she is able to safely, get what she wants. And an inequality framework really works to make these specific harms and these different lived experiences visible within the law. 

ELIZABETH WYDRA: Yeah, and that’s you know, I think that is a really important part of the constitutional right that’s protected that is important to keep in mind especially as you know, we have the threat of the Supreme Court chipping away at Roe. Where you know, it might be more protected in one state than another especially if they allow these restrictive laws that cause abortion care providers to close. That as you said fall disproportionately on poor women and women of color and people of color who need to access abortion. You know, and as we’re talking about this, you know, I think one of the important points that comes up again and again is how you know, the change the law toward greater justice and equality happens when their purported neutrality of the law is challenged and reveals the way in which this supposed objectivity actually works to entrench the interest and power structures of whiteness, patriarchy, of wealth. And that a key way of making that challenge of course is by widening the voices given a platform in the law. And I think that’s most crucial on the bench. But also before the bench as in the lawyers who argue the case and in the evidence that’s considered to be persuasive. What voices do we listen to like that briefly we’re talking about earlier signed by women lawyers who had abortions. How would the law change if we had more women, women of color, more people from marginalized communities on the bench? Can you talk a little bit about from your perspective how diversity on the bench actually makes the law better and more inclusive? 

KATIE GIBSON: Yeah. Well, I’ve greater diversity on the bench would just present, you know, more opportunity to challenge the erasers and exclusions that continue to live on in the law. I immediately think of Justice Sotomayor’s, you know, powerful dissenting opinions where she has centered a race conscious lens to challenge the institutional whiteness of the law.I think of Utah v. Strife, the decision weakened Fourth Amendment protections and Justice Sotomayor’s dissent is really notable for how she centers the expertise and the perspective of people of color in her argument. So she cites W. E. B. Du Bois seminal work The Souls of Black Folk. She points to the words of James Baldwin and Tallahassee coats. She draws from the Ferguson report and she really details the struggle for survival that is forced upon communities of color by a racist system. And she details the talk that parents give their children in these communities with the hopes of keeping them safe from police violence. So the perspective that you get from Justice Sotomayor is really really different than the perspective you get from her colleagues on the court and I think it’s a good example of how diversity on the bench brings a wider range of lived experiences into view and authorizes more voices to participate in the process of legal knowledge production. 

ELIZABETH WYDRA: Well, I definitely look forward to what I hope is your next book on Justice Sotomayor. But yeah, I think that you know, I think she is another great example and in many ways, you know, a sister to Justice Ginsburg in that effort to show how the lived reality of constitutional rights is not always the same across different communities and for different people. 

And you know, we at CAC are constantly striving to narrow the gap between the grand sweeping promises of the Constitution and the reality for far too many for far too long, which is been that those rights are not enjoyed in the same way. And so, you know, I think the idea that bringing in more voices brings in more reality and context to the law is incredibly important. Because that’s you know, the Constitution is a document that we revere but it is supposed to be a document that has a lived reality and provides a meaningful equality and justice to everyone in this country. 

So I can’t let you go without asking you a rather light-hearted question. I made a joke earlier about you know, the style of Justice Ginsburg when we showed you a book cover and her fabulous Emerald earrings and that collar but one of the things that I love recently. We have a picture up right now. Time Magazine had this fantastic story detailing some of the colors that Justice Ginsburg became famous for wearing. And she noted that you know, the judicial robe is made for a man. There’s a little notch at the top that allows you to show the you know mail suit shirt collar and tie, and so she along with women judges from across the globe have come up with their own style of judicial apparel. And so Time Magazine showed some of these fantastic beautiful stylish colors. And I will say I was very surprised. I assume most of them were from like the Queen of England or Oprah who’s basically queen of America, but know a lot of them are from a Banana Republic or Anthropology. I shop there so I want to know Professor Gibson in your scholarly opinion, which is your favorite Justice Ginsburg collar?

KATIE GIBSON: Well, I love how she described, you know reworking the robe. Right that you point to and making it work. And how about lace collar, that first collar announced a new presence on the Supreme Court and I think it’s interesting how her collars seemed to grow more bold throughout the years. The one that I chose, I think might be the boldest of all. Ginsburg wore it in the official photograph of the justices in 2018 after Brett Kavanaugh joined the court. You know, this collar is giving me some Game of Thrones vibes. It looks like armor to me like Justice Ginsburg is really for battle. And I just love it because it reminds me of her, you know, fierce spirit and the many battles that she fought throughout her life to make the law more inclusive and more just. And so yes, this is my this is my favorite of the bunch. 

ELIZABETH WYDRA: I love that one, too. You’re absolutely right. It looks like a piece of armor that she’s ready to go into battle. And you know one of the things that you talk about I know in your book is the way that when Justice Ginsburg talked about the law and the Constitution and the promise of constitutional democracy she included all of us in that conversation. And you know in many ways implicated all of us in that conversation and puts that responsibility on all of us to fulfill our constitutional covenant. It’s not just the job of a judge. And I think those are great words to go forth with after celebrating Women’s History Month and having this great conversation with you. 

Professor Gibson as I mentioned, everyone should check out your book. I loved it. It made me feel even more appreciative of Justice Ginsburg work and her life after reading it. So thank you for writing it. You can find out more about the promise of equal protection that was protected and advocated for by Justice Ginsburg on CAC’s website the usconstitution.org. Check us out on Facebook, Twitter, and Instagram and thank you so much for joining us for this Purple Chair Chat and I hope to see you at the next one. Take care.

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