In Justice, Gender, and the Family, Susan Okin wrote about a cartoon she once saw. “Three elderly, robed male justices are depicted, looking down with astonishment at their very pregnant bellies. One says to the others, without further elaboration: ‘Perhaps we’d better reconsider that decision.’” (102).
I read that book for the first time over a decade ago now, but that comic stayed with me for a long time. On the one hand, it seemed like such a clever way to make a very big and important point. On the other hand, when I tried to nail down the exact content of that point, I found myself bristling at it.
Okin used the comic to illustrate the importance of devices like the Rawlsian original position and to motivate the point that more than formal legal protections will be necessary to achieve gender equality. She invoked the comic again, in a footnote of a later article, where she wrote that the “cartoonist’s concern” is borne out by a study showing that male Republican judges ruled in favor of the women in sex discrimination cases at a much lower rate than did female Republican judges (“Justice and Gender: An Unfinished Debate,” 1549). But I guess I always thought the comic was also making a more specific point, and it’s that one that I first had trouble nailing down and then had trouble accepting.
Here are three things that comic could have been saying:
- Our social positioning makes such a difference to our moral deliberation that even people whose job is to deliberate hard and carefully will regularly fail to heed deeply morally important considerations that they would recognize easily if only their self-interest were implicated in a different way.
- The above is true, and it is true especially of men, or of those in positions of power and privilege, especially when it comes to decisions that implicate the interests of women, or those without power and privilege.
- A particular cast of judicial characters was guilty of allowing their social positioning to have this effect, and they consequently discounted or ignored a deeply morally important consideration.
There are clearly plenty of other options, but these are roughly the three that have struck me as importantly and interestingly different. Weaker versions of the first two claims are familiar from feminist epistemology. In my view, some weaker version of the first claim is clearly true, and some weaker version of the second is at least highly plausible. We all have liabilities when it comes to moral discernment, and these surely are often a product of our social positioning.
But the comic relies on a quite strong version of whichever of these three claims it’s advancing.
What struck me at the time is this: It seemed like someone was being accused of something really bad. The charge that men tasked with the responsibility of deliberating over all our most fundamental interests would completely change their position about how to balance those interests were they to suddenly experience one of them first-personally seemed—and still seems—like a very serious charge to level. I wanted to understand who was being accused, and of what exactly they were being accused.
Male judges can’t understand what it’s like to be tragically pregnant. Neither can I. But I, and they, can read and listen and think hard and empathize. I, and they, can remember that those powers fall short of first-personal experiential knowledge. So, I, and they, can listen again, and try to take special care not to discount the importance of an interest just because we haven’t experienced it firsthand.
Okin’s comic seemed to me to be saying that certain people are either incapable of doing that or haven’t bothered to do that. That’s a much stronger claim than the charge that they’d feel women’s interest in reproductive freedom differently if they personally stood to lose. It’s the charge that they’ve effectively discounted women’s interest in reproductive freedom entirely. They either couldn’t or willfully didn’t do the work of trying to understand. And that’s not just patriarchal, male privilege, structural injustice stuff. That’s either tragic (if they couldn’t) or maniacal (if they willfully didn’t).
By now I’ll be suspected of having no sense of humor. Try to trust for a minute that I do have a sense of humor, and that I did even during that first reading. (Although my grad school self scribbled the word “cringe” in the margin next to the relevant passage in Okin’s book, she also drew a smiley face.) But the comic wasn’t just being funny; it was saying something in a funny way, and even as I was amused, I cringed because the charge was obscure but seemed so grave that it mattered just what it was.
Here’s my confession: I think I felt like men were either being unfairly disparaged or unfairly let off the hook. Men can empathize. They can practice deliberative humility. They can listen. They can take interests seriously and weigh them appropriately even when the interests aren’t their own. Many men fail to do this, of course, and they should be held accountable when they do. But—I thought—we shouldn’t infer from some man’s position on abortion that they’ve failed to do it, and so we shouldn’t infer from their being male and anti-abortion-rights that were they female they’d be pro-abortion-rights. It might be true that their view would change were they female. But we aren’t justified in believing it just on the grounds of their sex and position on abortion. For all we know, if that’s all we know, they might have deliberated well and carefully, and reached an anti-abortion-rights position nonetheless. After all, many people who could become tragically pregnant have done just that. I don’t doubt that our legal landscape around abortion would be different if more women were in positions of power and authority. I don’t doubt that lots of legal landscapes would be different. But the comic seemed to take that complex likelihood and make it funny by reducing it to an accumulation of individual men being incompetent or willfully awful moral deliberators.
Still, good jokes often rely on exaggeration and often come at someone’s expense, so I can easily persuade myself that defensiveness and cringes are misplaced. And the points that Okin took the comic to make are good ones. I decided, ultimately, that everything is fine.
Then, as I listened to the arguments being made in the U.S. Supreme Court hearing about the Mississippi abortion law, the comic and my ambivalent appreciation of it leapt right back to mind.
And I started to think more about the third option listed above. Maybe the comic was about a particular cast of judges. Maybe in the case of those judges, the inference the comic drew was more complicated. Maybe it was rationally—and not merely comedically—defensible. Maybe it wasn’t inferring bad moral reasoning only from judges’ maleness and opposition to abortion rights. Maybe in the case of some particular cast of judges, we had reason to think that opposition to abortion rights really was down to bad moral deliberation—to a spectacular failure even to try to listen and empathize. If the charge is levelled against particular individuals, and if we had good reason to find them guilty, my defensiveness was doubly out of place. Those particular individuals should have worked to offset their first-personal limitations through effortful listening and empathizing. It was their job to do that. And they failed.
I’m no expert in Supreme Court norms for questioning and arguing. I guess all the cases they hear are cases wherein deeply important interests are at stake, and maybe their tone and language can’t always reflect the gravity of those interests. I’m also aware that I’m inviting charges of hypocrisy here, as I’ve sometimes been accused, reasonably, of focusing on an argument’s soundness too much to the exclusion of possible deleterious effects on possible portions of the audience. But I couldn’t help hearing in some of the questioning just the kind of failure that Okin’s comic seems to portray. I’m not sure the justices’ position would change were they suddenly to find themselves with unwanted “pregnant bellies” or to find themselves confronted with a tragic, impossible choice that nobody should face. But I couldn’t help wondering whether some of the questions would have been asked at all, and whether some would have been asked with a touch less self-satisfaction, a touch more humility, or a more resonant note of solemnity, if the questioners had worked hard enough to listen and to understand the experiences of the women whose deeply morally important interests hang in the balance.
Last weekend, I read this powerful, devastating essay by an abortion doctor. Now, in addition to those judges, I’m thinking about one of this doctor’s patients:
“One twenty-five-year-old mother of five asked if she was allowed to take the fetal tissue home to perform a funeral for it. I explained that in our clinic, this isn’t permitted… So instead she bowed her head toward the dish in my hand, closed her eyes, and whispered, ‘I love you. And I’m sorry.’”
Maybe the strong versions of claims one and two above are true. Maybe number three is true of this cast of judges. I have my doubts. But even if the claims aren’t true, something might still be very wrong. Suppose the cast of judges would have the very same moral and constitutional convictions they have now, even were they to find themselves with pregnant bellies. And suppose they’d have those same convictions even if they thought and listened hard, and empathized, and reminded themselves that empathy falls short of first-personal experience. Suppose they wouldn’t “reconsider that decision” at all. Still, if they had pregnant bellies or if they listened and empathized better, they might do better at discussing the case in ways that honor the fact that whatever their ultimate moral and constitutional convictions, women’s interest in access to abortion is a vital and deeply morally important interest. They might reconsider the care with which they speak of that interest as they lean toward subordinating it.
{ 46 comments }
MisterMr 12.15.21 at 5:34 pm
After a google search, two polls that show that there is small difference between men and women on abortion (although there is some difference and goes in the expected direction):
https://www.vox.com/2019/5/20/18629644/abortion-gender-gap-public-opinion
https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/
I imagine religious belief have more importance than gender on this (while I’m currently an atheist, once I was a catholic and I often wondered why some people couldn’t wrap their mind around the fact that I actually believed catholic stuff).
Not sure if this means something for the general argument.
robert h hirsch 12.15.21 at 5:39 pm
As a responsible male, I took responsebility , and even though I am now 71 for all my actions. ” tragically pregnant” says that neither party was a responseabble individual.
I am tired of individuals not taking responsebility for their actions.
Gareth Wilson 12.15.21 at 6:14 pm
I’ve heard a few women complaining that female gynecologists are much less sympathetic that men. The men have no personal experience of whatever their patient is going through, so they have to learn from their patients. The women just make simplistic assumptions from their own experience and don’t appreciate the differences between them and their patients. “It happened to me three times, just tough it out.”
Tim B 12.15.21 at 6:18 pm
Even aside from the question of whether it’s possible to empathize with someone whose assigned identity group doesn’t match yours, there’s also the issue that polls say that prevalence of approval of / opposition to abortion isn’t all that different between men vs women.
Se possible interpretations 1 and 2 are not just insulting and generally not well supported, there’s also empirically false in this case.
“Still, if they were pregnant…”
This post-modern or whatever push to de-physicalize people is really a bit screwey.
Aardvark Cheeselog 12.15.21 at 9:52 pm
There’s much here about not attributing to carelessness or malice what is explainable by… I’m not sure what. But it seems to betray a basic lack of familiarity with the behavior of the kinds of public figures in the US who publicly oppose abortion rights. Broadly speaking, these people have demonstrated over and over and over again that yes, they have some really severe lack of empathy for large groups of people who face problems that they (the public figures) never will.
Once in a while, one of these figures will suddenly find that their life is in fact affected by some issue that previously was useful for moralistic posturing, and suddenly they find reason to “reconsider the decision” about whether that posturing was defensible.
In conclusion, I find the strongest forms of all three of the interpretations you offer to be highly plausible, and the fact that they all reflect badly on the morals and ethics of the sort of people who are highly public opponents of abortion rights is not in the least problematic. We don’t have to hate those people, or hold them in contempt, for their ethical incompetence, but failing to recognize them for what they are is like ignoring a venomous snake in your bed.
J-D 12.15.21 at 11:14 pm
In my experience, the majority of people are good at their jobs or, if not good, at least adequate; but the proportion who do their jobs badly, or at least do it badly a substantial part of the time, is not so small that it can be regarded as an aberration. By default, I expect this to be true of most if not all jobs, and therefore I expect it to be true, among others, of judges. So I would expect that there are some judges who fail (at least a large part of the time) to do their job of deliberating carefully, even if I can’t discern which judges those are, and in the specific case of abortion I would expect that there are some judges who merit depiction as in the cartoon you describe, even if, again, I can’t discern which those are.
Zora 12.15.21 at 11:38 pm
Japanese Buddhists hold funerals for stillborn, miscarried, or aborted fetuses, a practice called mizuko kuyo.
https://en.wikipedia.org/wiki/Mizuko_kuy%C5%8D
After I miscarried, my Zen group (in Honolulu) held such a ceremony for my never-to-be child. It was public. I was told that other women or couples had requested private services. I’m not sure if any have been held in recent years.
Cora Diamond 12.16.21 at 2:25 am
Funerals can in general be held for miscarried or stillborn babies. In the case described in the essay mentioned by Gina Schouten, the clinic made a uniform practice of not releasing an aborted fetus for burial or cremation. But funeral services deal with stillborn and miscarried infants, and often make no charge for their services.
Chetan Murthy 12.16.21 at 3:01 am
Professor Schouten,
I agree with Aadvark Cheeselog, that these conservatives have shown repeatedly that they argue in bad faith, and that they are well-worthy of being judged as exhibiting the worst of the strong versions of the interpretations you propose
So much, so banal. B/c they really are awful people, and we shouldn’t take any of them seriously as moral actors. But I would argue that even liberals and even so-called “enlightened openminded men” are simply unequipped to judge anything about these matters. It is not for nothing, that “the position of women in the revolution is horizontal” was such a well-known witticism, and the number of creeps among liberal, “feminist” men is seemingly unbounded. It seems clear to me that anybody who tries to argue that men should have a say in any issues concerning women’s bodily autonomy should be soundly beaten with a clue-bat, and no protestations of “nono, I’m one of the good ones, I’m a feminist” should be accepted.
PatinIowa 12.16.21 at 3:10 am
I think the cartoon also points to a difference in the positions that’s relevant.
I know lots of mothers who are strongly pro-choice and whose politics on abortion did not change one bit when they became pregnant, regardless of whether or they decided to terminate the pregnancy. It’s hard for me to imagine that happening, maybe because that was my experience–from a male perspective. I love my kid; I volunteer at a women’s clinic that performs abortions
On the other hand, it’s very easy to imagine someone “changing their mind” about abortion when they have to bear the cost. It happens with a great deal of frequency, it seems. It’s not the simple fact that there are lots of pro-life hypocrites out there–there are plenty of hypocritical feminists and so on–it’s that the ease with which we can imagine a person’s attitude changing points to a weakness in the position.
That’s my intuition, anyway.
For example, I wonder what we make of these guys: https://www.nytimes.com/2017/10/06/opinion/sunday/conservative-men-abortion-hypocrisy.html.
PatinIowa 12.16.21 at 3:12 am
Zora at 7:
I am sorry for your loss.
Thank you for sharing.
In gassho.
Abigail Nussbaum 12.16.21 at 8:29 am
This is a lot of text to avoid the simple fact that the cartoon in question doesn’t exist in a vacuum. It emerges from the observation of the world. And that observation tells us that while individual men are capable of empathy and of imagining themselves in others’ shoes, as a group they tend to take their experience as universal. What’s more, “empathy” can often mean relying on your own life experience rather than listening to those whose experience is fundamentally different than yours, as any woman who has had to sit through a man explaining to her what she should have done in a case of sexual harassment or catcalling can attest.
This is, of course, true of most powerful groups when they address the less powerful. How many times have white people told black people what they should do to achieve equality and quality of life? How often do those with passport privilege like to bloviate about what they would do if they found themselves fleeing crime, poverty, or environmental disaster? Many of these people would describe themselves as empathetic, without feeling any obligation to listen to those they’re supposedly empathizing with.
What’s more, it seems obvious to me that the cartoon in question is, indeed, referring to conservative judges. The negation of other people’s lived experience, the inability to imagine oneself in their situation, is essential to the conservative worldview, as both studies and our observed experience has shown. It’s why gay rights – and specifically gay marriage – leapfrogged many other struggles in the beginning of the 21st century. Rich, white conservatives are unlikely to be pulled over by the police because of the color of their skin, or find themselves turned away at the border of any country they want to visit or move to. But they can have gay children, and they want those children to be able to participate in conventional nuclear-family-forming. Similarly, it was recently observed that Bob Dole was a bog-standard conservative on most issues except disability rights, where he of course had a personal stake. Again and again, we have had it demonstrated that conservatives are incapable of (or unwilling to) have sympathy for another’s weakness or marginalization unless they’ve experienced it themselves.
None of this means that if men could get pregnant, there would be abortion machines on street corners, as the old joke has it, for the simple reason that abortion isn’t simply a matter of gender (indeed, not all women can get pregnant and not all pregnant people are women) but of class and wealth. If a gaggle of rich male judges found themselves with an unwanted pregnancy, they would do what their wives, daughters, and mistresses do, regardless of what they profess to believe: pay for a safe, private abortion, even if they have to fly aboard to get it. And then they would happily vote to strip the rights of poorer, more vulnerable women to access the same services in a way they can afford, because this isn’t merely an issue of empathy, but of malice and control.
Sophie Jane 12.16.21 at 8:34 am
And of course some men have wombs. Though not any judges yet, as far as I know.
Trader Joe 12.16.21 at 12:30 pm
I’m quite sure most jurists have never murdered, raped or committed a range of other crimes yet every day they manage to balance the law as written and empathy for victims and the accused.
Naturally we don’t always agree with how they conclude on these matters and you may not agree with how they decide abortion. That said we don’t need to have judges murder people to make them better jurists in murder trials and they don’t need to be pregnant to better decide abortion cases.
Tm 12.16.21 at 1:48 pm
J-D 6: “In my experience, the majority of people are good at their jobs or, if not good, at least adequate; but the proportion who do their jobs badly, or at least do it badly a substantial part of the time, is not so small that it can be regarded as an aberration.”
It is important to add that sometimes – and this applies definitely to certain members of the US Supreme Court – people are deliberately promoted to certain positions because they are expected to do their jobs badly. Or to quibble a bit, sometimes the people in positions of power have a different concept of “doing the job well/poorly” than you might have, which leads to a higher than expected proportion of people “who do their jobs badly” in certain positions.
politicalfootball 12.16.21 at 2:28 pm
I am tired of individuals not taking responsebility for their actions.
I am glad that people in the US are able to take responsibility for an unwanted pregnancy by having an abortion. I wish the troglodytes who want to end that freedom were willing to take responsibility for the damage they want to cause.
I once made a judgment error riding my bicycle that, with a little worse luck, would have been fatal to me. Had I been killed, that would not have constituted “taking responsibility” for my actions. Mistakes, bad luck, being victimized by criminals — these are not reasons to force women to bear children.
politicalfootball 12.16.21 at 2:55 pm
1, 2 and 3 are all reasonable interpretations of the comic, and all describe something simple and obvious about humanity. Sophomores discuss whether they would free their slaves in the antebellum US South. Grownups understand that people are routinely conditioned by their circumstances to do spectacular evil because, in the words of 1, “social positioning makes such a difference to our moral deliberation.”
Dred Scott v. Sandford would be decided entirely differently today than it was in 1857. It is only a slight oversimplification to say that this difference is a result of “social positioning.”
Amy Coney Barrett has had a spectacular career promoting forced childbirth, no doubt out of sincere conviction. It seems obvious that — regardless of one’s opinion of abortion — a different set of life circumstances could have resulted in her having an abortion without feeling significantly conflicted about it.
Decent people try to transcend the circumstances of their lives to understand the viewpoint of others, and routinely fall short. Western society asks for less empathy from men, and it puts the white ones in charge. The interests of people who aren’t white men are inevitably going to be treated with less respect. This is human. How appalled you want to be by humanity is up to you.
JimV 12.16.21 at 4:16 pm
To me, the most salient issue of the cartoon is the depiction of all judges as male. The joke would not work as well (to the extent it does work) with pregnant female judges, of course, but I feel a better synopsis of the issue would be to contrast a panel of, say, seven male judges and one female judge, with seven female and one male judge. (I think we need more female judges. I would settle for AI judges trained on equal numbers of male and female viewpoints, if I thought that were possible.)
As is, the cartoon sparks in me the minor objection that, as several commenters pointed out and my own anecdotal experience supports, many women (all the women whose positions I happen to know, coming from an evangelical community) would like to prohibit most abortions. It seems to me that it is probably an instinctive survival (of populations) trait.
MPAVictoria 12.16.21 at 4:20 pm
“I once made a judgment error riding my bicycle that, with a little worse luck, would have been fatal to me. Had I been killed, that would not have constituted “taking responsibility†for my actions. Mistakes, bad luck, being victimized by criminals — these are not reasons to force women to bear children.”
Thank you. I am glad someone said this.
“In my experience, the majority of people are good at their jobs or, if not good, at least adequate; but the proportion who do their jobs badly, or at least do it badly a substantial part of the time, is not so small that it can be regarded as an aberration. By default, I expect this to be true of most if not all jobs, and therefore I expect it to be true, among others, of judges. So I would expect that there are some judges who fail (at least a large part of the time) to do their job of deliberating carefully”
These judges are in fact doing their job, the implementation of radical right wing policy preferences through the courts, very well.
PatinIowa 12.16.21 at 4:23 pm
By the way, to my way of thinking, judges don’t have to have empathy for human beings who may be or may become pregnant.
What they have to have is respect for the capacity of human beings to make their own choices about their lives, including when and under what circumstances they will attempt to carry children to term and give birth.
The issue isn’t whether they can appreciate people’s struggles. (Many people don’t struggle much with having abortion, except with the government. Many struggle intensely. Most are in between, it seems.) The issue is whether they recognize them as human beings and allow them to exercise their rights and responsibilities as such.
I don’t know how that fits with the cartoon.
Ray Vinmad 12.16.21 at 4:27 pm
I don’t think you mean to imply that they simply cannot see it because of their social location as men, do you?
This wouldn’t make sense of the original Roe v. Wade decision.
It wouldn’t make sense of the intensity of women’s passion about outlawing and preventing abortion. You could use false consciousness there but that seems a bit ad hoc.
It cannot be that it all arises from the fact men’s interests are not at stake because young women can also be passionate opposed to legal abortion and men can be passionately in favor of it. (Those women assume they would never want an abortion –but this is because they believe abortion is wrong. It’s still relevant to their options.)
Isn’t it more that the view is tied up in a bundle of ideology that clearly pulls on strands of different identities but which is flexible enough to encompass people from a lot of different social locations? This bundle has been very politically useful to politicians and the type of people in the majority on the Supreme Court. They have attached it to economics very tightly in such a way that it serves as a moral shield for almost any sketchy or cruel aspect of our economic and political system–because their opponents can then be called baby killers. Paul Ryan was particularly skilled at marshaling this charge whenever anyone dared question his revolting smugness while trying to create budgets designed for deprivation.
This ideology works via in our psychology by some rather mysterious mechanism where love of babies gets sewn onto disgust about women’s sexuality like the world’s most twisted Frankenstein monster. Perhaps it is not so mysterious–it hooks in our strong interest in protection of the helpless and innocent and the expectation women have a special charge there. It bypasses rationality through the emotions this generates about reproduction and women’s bodies. This way sexism can be packaged as defense of the weak (which is one of sexism’s favorite packages).
The striking thing to me as someone reflexively and intensely protective of pregnant women and fetuses is that a fetus is not a baby. As someone who has experienced miscarriages and was very sorrowful about them –I had to realize that my beloved embryo, that I thought of as a child already– wasn’t a being I could have a human-to-human relationship with. When you break that conceptual tie to babies, the whole thing falls apart. I take Elizabeth Harman’s work to indicate this in various ways but I could be projecting my thoughts into her view and/or misremembering her view.
The metaphysics superficially looks like it works in the favor of the anti-abortion argument. To the extent some Christian denominations insist that ‘life begins at conception’ part of the reason might be that they think they are erring on the side of caution in case the fetus a baby. This shows great disregard for the women they insist must become mothers. They also show great fondness for slippery slope arguments about what happens if we discard fetuses willy-nilly that are very similar to other slippy slope arguments about the dire effects of meddling with traditional notions about sex and gender.
But maybe this all shows you’re right in the end– being a woman becomes much more salient if you see that the whole thing depends on pretending a fetus is a baby and forcing a woman to remain pregnant so that the fetus eventually becomes a baby. Whether you’re horrified or not depends on how you conceptualize ‘womanhood’ and you’re liable to be a lot more horrified when that conceptualization is applied to your body in a way that excludes your individuality and personhood.
If you conceptualize it the way that women opposed to abortion often do (usually due to a religious perspective) then you see yourself as charged with a deep responsibility that comes from having the body you have–a body that can make babies. For those women, the capacity to make a baby comes with a whole bunch of prior duties tied to conception and pregnancy. People opposed to abortion do not see women this way but instead see them as equal and autonomous individuals whose personhood is conceptually unconnected to the baby-making process.
Both men and women can have the view that women are people in the same way men are-i.e., fully autonomous individuals without built-inl duties arising from specific biological capacities– but if you’re a man there’s obviously less at stake when women lose that status in a society like they’re about to.
Trader Joe 12.16.21 at 4:28 pm
To take an entirely different slant.
Perhaps the cartoon is suggesting that had the 7 white male jurists who decided Roe been pregnant before making that decision maybe they’d have seen it differently in the first place?
The beautiful ambiguity of cartoons allows quite a lot of room for interpretation.
marcel proust 12.16.21 at 4:32 pm
@Chetan Murthy wrote: It is not for nothing, that “the position of women in the revolution is horizontal†was such a well-known witticism, and the number of creeps among liberal, “feminist†men is seemingly unbounded.
I don’t mean to take issue with anything else in your comment, but I wish to add my experience with respect to this quote. It appears to be a paraphrase of one of Stokely Carmichael’s better known lines, “The only position for women in SNCC is prone.”
Several years ago, Diane Nash spoke at the college where I then worked, and afterward she and several other women who had worked with her in SNCC, including, if IIRC, Janet Jemmott, were selling an anthology of memoirs from that time. I was in elementary school during that period so had no memory of it and all I know about SNCC came from reading much later histories of the organization and its work.
So I started asking them questions about this, and mentioned Carmichael’s quote. The look of pain that suddenly came to their faces was memorable, and the pain was not about sexism, or hostility from Carmichael or anything of that sort, as they made clear. He apparently had a reputation for very humorous snark and they said it was so obvious at the time that he was trying to be clever and amusing and make the people around him guffaw. Their pain was due to the recognition that Carmichael was so badly misinterpreted here and that it had stained his reputation and the quote was brandished as a weapon to cut him down.
Carmichael was 23 at the time. I certainly would not want people to hold my attempts at humor (even successful ones) against me even 5 years later. About 15 years younger than Carmichael, I was Carmichael’s age in the late 1970s and early 1980s, and by that period I knew to avoid (and did not find funny) jokes that were misogynistic and anti-Black racist. However, my sense of humor then meant that I did appreciate cracks and jokes that were homophobic, ethnicist (if I may coin a neologism), antisemitic (I am a Jew) and others not categorizable except that they were in really poor taste.
I guess this is a longwinded way of saying that context is important, anachronism is to be avoided, and I would not substitute my judgment about the line for that of women who were there and whose experience trumps my own, certainly not without a good deal of contrary information.
Finally, I came across this which provides some very interesting context for this statement. And I do hope that I’ve caught all the typos and html errors. Sigh.
Mike Furlan 12.16.21 at 5:39 pm
Chetan Murthy argues that “these conservatives have shown repeatedly that they argue in bad faith.”
Not quite true. Start with Frank Wilhoit’s definition of conservatism, “There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”
It is not bad faith for example for Rand Paul to ask for disaster aid for Kentucky, after having voted against disaster aid in every other case. In his mind, “everything for me, and nothing for you” is just the way he thinks the country should work.
In Antebellum America, Senator Mason found no problem with believing in “States Rights” and also writing the 1850 Fugitive Slave Act.
The Founding Fathers would take a break from beating their slaves to complain about how British taxes were making them actual slaves.
This is not “bad faith” this is how the conservative mind works.
both sides do it 12.16.21 at 8:28 pm
Like some comments above, I think “empathy†is a misplaced focus. Supreme court judges are not appointed to engage in moral reasoning, or to fairly balance competing interests. They are there to exercise power.
Setting aside philosophical debates about the nature of the law and what judges do in the abstract, the current political structure in the US appoints judges who are explicitly partisan and to make decisions encoding specific partisan goals into US society.
All six conservative judges are products of an explicit, generations-long effort to build institutions (eg the Federalist Society) and political coalitions (eg transforming evangelicals’ anger about segregation into anger about abortion) to place judges on the supreme court that would make specific rulings.
As Tm says above, if judges can’t be trusted to not use individual reason to balance competing morals and interests, they wouldn’t be there.
Willingness to foregoindividual analysis, and instead run a partisan algorithm, is now a strong weight in judge selection criteria for Republicans. Recent supreme court cases make up principles that apply to single cases to achieve partisan ends (eg “the sovereign dignity of the 50 states†to gut the voting rights act), Republican-placed judges on lower courts routinely make opinions with reference to Fox News fever dreams, and Trump nominated some judges who couldn’t get ABA backing (an extremely low bar to clear).
The end of the OP points toward how even the same rabidly partisan decisions dressed up in the language of empathy would be better for public discourse. That’s probably true. But trying to parse judges’ actions as an exercise of moral judgment or balancing interests, as the rest of the OP does, is to miss what the system is actually doing.
Cranky Observer 12.17.21 at 12:04 am
I recommend that the author read the transcript of the Kavanaugh hearings. Gorsuch had the same plan of action after he took the bench, but at least he was smart enough not to say the plan out loud during his confirmation hearing, That’s 2 of 9, at a minimum, who don’t exactly fit the description of principled neutral lawyer who only calls balls and strikes.
anon 12.17.21 at 12:29 am
” where she wrote that the “cartoonist’s concern†is borne out by a study showing that male Republican judges ruled in favor of the women in sex discrimination cases at a much lower rate than did female Republican judges (“Justice and Gender: An Unfinished Debate,†1549). ”
Note that this established nothing. It may be that the males were simple correct, and the females were incorrect due to their inappropriate (unjust) empathy. Or the opposite.
The presumption is that women in sex discrimination cases are right. That is not a supportable presumption.
anon
J-D 12.17.21 at 1:21 am
Tm, I agree that your point is valid and important. It goes wider than the point I was making. I was making a narrow point within the frame of what Gina Schouten was suggesting about how it was the job of judges, or part of their job, to deliberate carefully. Even within that narrow frame, it is reasonable and fair to suggest that some judges will fail to deliberate carefully a large part of the time, if not always; in fact, it should be expected. In making this narrow point, I didn’t mean to suggest that the wider question of ‘What is the job of judges?’ is more complex, and that the possibility of different answers to it has an important relevance to this issue. Regardless of their answers to this general question, however, I think that, if you asked people specifically ‘Is it part of the job of judges to deliberate carefully?’, everybody or nearly everybody would say ‘Yes’, and (I think) honestly.
Chetan Murthy 12.17.21 at 7:25 am
Trader Joe@14: “I’m quite sure most jurists have never murdered, raped”
“raped” ?? I wouldn’t be so sure of that. Put simply, a lot of what passed for “dating culture” in the 1980s when I was in college, was indistinguishable from date rape. “Purple Jesus Punch”, mixed so that you couldn’t tell you were getting incredibly drunk, and pushed on female college students at parties. Many of the stories to come out of the Rapey-K (Kavanaugh) hearings and rape accusers were just typical of what happened back then. And it got worse, much worse. And of course, the more elite the school, the more impunity. the more elite the fraternity, the more impunity.
Quite to the contrary of what you write, I would assume that many, many male judges have in fact raped.
SusanC 12.17.21 at 8:54 am
I could interpret this as:
s) A normative claim about what justice should be like. That the judicial branch of the government are supposed to make decisions without regard to their own personal benefit, or benefit to classes of person to which they happen to belong, but instead fairly to all. (A lurking problem with this: do non-citizens count? Who comprises the all whose interests the judiciary are meant to be considering)
Plus either of
B1) Although the ideal of justice in (a) is meant not to be self-serving, some degree of self-serving bias is inevitable, so systems should build in some random sampling/equal representation to average the bias out. We have random selection of jurors, for example. Also conflict of interest rules such that you can’t be a judge or a juror in a case you have an interest in. The accusation here is against the system, of failing to ensure equal representation of Supreme Court members in the way it does for, for example, jurors.
Or B2) That judges are being blatantly self-serving, in a way they could and should have avoided.
The accusation is a serious one, in that it resembles things that are considered seriously bad. (“Conspiracy to pervert the course of justiceâ€:is a crime in U.K. law, judges aren’t supposed to take bribes or rule on cases where they have a personal involvement etc.)
Trader Joe 12.17.21 at 12:10 pm
Why is we assume that the current court is political, partisan, self-motivated and a half dozen other unprovable pejoratives.
Yet – when 7 of 9 WHITE MALES decided Roe, no one seems to think the same?
If I said what court would you rather one with 4 women, 5 men, inclusive of 1 black and 1 Latino or 9 WHITE MALEs…..without exception we’d likely prefer the former. Now it seems we’re saying we just happen to like what the 9 WHITE MALEs came up with better so this court must have a problem.
Maybe its time to admit that the problem isn’t particularly the court, its that the issue is one that isn’t always going to fit into neat little political boxes and narrative biases.
Trader Joe 12.17.21 at 12:46 pm
@28 Chetan
“Quite to the contrary of what you write, I would assume that many, many male judges have in fact raped.”
I normally find your comments pretty insightful and routinely agree with you on many points….but if you seriously want to argue that “many many” male judges have raped I’m not sure your particular college experience is really the proof that’s going to make that case.
I hear the point that times have changed – hear my point that one doesn’t need to have 1st hand experience of something in order to be able to make a legal ruling.
Tm 12.17.21 at 3:44 pm
“Why is we assume that the current court is political, partisan, self-motivated and a half dozen other unprovable pejoratives.”
These are easily provable and have been proved extensively. The refusal to block Texas anti-abortion law is patently in violation of any and all court precedent and there is absolutely no question, no debate at all about this, that a similar law banning weapons would be blocked in a heartbeat by the same judges. Another striking example is the court’s refusal to take Trump’s many explicit anti-Muslim statements into consideration when the Muslim ban was decided constitutional, while the very same judges have authored multiple opinions based on alleged (and mostly imaginary) anti-Christian sentiment of Democratic office-holders (e. g. https://www.lawyersgunsmoneyblog.com/2021/12/neil-gorsuchs-monument-to-bad-faith). The court majority’s attitude is correctly described as constitutional Calvinball, and the same goes for the whole Republican party’s onn-commitment to rules and norms.
Tm 12.17.21 at 3:45 pm
“Why is we assume that the current court is political, partisan, self-motivated and a half dozen other unprovable pejoratives.”
These are easily provable and have been proved extensively. The refusal to block Texas anti-abortion law is patently in violation of any and all court precedent and there is absolutely no question, no debate at all about this, that a similar law banning weapons would be blocked in a heartbeat by the same judges. Another striking example is the court’s refusal to take Trump’s many explicit anti-Muslim statements into consideration when the Muslim ban was decided constitutional, while the very same judges have authored multiple opinions based on alleged (and mostly imaginary) anti-Christian sentiment of Democratic office-holders (e. g. https://www.lawyersgunsmoneyblog.com/2021/12/neil-gorsuchs-monument-to-bad-faith). The court majority’s attitude is correctly described as constitutional Calvinball, and the same goes for the whole Republican party’s non-commitment to rules and norms.
politicalfootball 12.17.21 at 7:41 pm
Why is we assume that the current court is political, partisan, self-motivated and a half dozen other unprovable pejoratives.
Yet – when 7 of 9 WHITE MALES decided Roe, no one seems to think the same?
I think this question is asked with sincerity and in good faith, and I think it neatly illustrates the point of the cartoon. In the actual world, we know that Roe was vilified as “political, partisan, self-motivated and a dozen other unprovable perjoratives.”
I am entirely willing to suppose that Trader Joe is an educated person making a genuine effort to grapple with the truth. And yet, Joe offers a viewpoint that is virtually hallucinatory in its failure to reflect easily observed reality.
How does this happen? I think the cartoonist is on to something.
Mike Furlan 12.17.21 at 8:15 pm
Another perspective:
Of course the “Pregnant Judges” care about abortion rights because it is now important to them.
Noam Chomsky: The renowned economist James Buchanan, one of the leading figures of U.S.-style “libertarianism,†observed in his major work The Limits of Liberty that the ideal society should accord with fundamental human nature, which makes good sense. Then comes the next question: What is fundamental human nature? He had a very simple answer: “In a strictly personalized sense, any person’s ideal situation is one that allows him full freedom of action and inhibits the behavior of others so as to force adherence to his own desires. That is to say, each person seeks mastery over a world of slaves.â€
https://chomsky.info/20200811-2/
reason 12.17.21 at 9:56 pm
I’m sorry but this issue leaves me a bit cold. The point being in my mind, that it should not be the judges decision in the first place. The only reason the supreme court in the United States is highly politicised and highly contentious is that the United States political is, and has been for a long time, completely dysfunctional.
reason 12.17.21 at 9:58 pm
sorry should read … the United States political system ….
J-D 12.17.21 at 10:18 pm
It is practically certain that both of the following are true, despite the superficial appearance of contradiction (it is resolved by the footnotes): the fraction of men who have committed rape is much higher than people* think; the fraction of men who have committed rape is much lower than people** think.
That is, meaning some people.
** That is, meaning some (other) people.
Chetan Murthy 12.18.21 at 2:33 am
Trader Joe @ 32: I’m a red-blooded cishet American male, raised in a lily-white small Texas town, and until around age 45, I thought I was a feminist, while still holding some pretty backward beliefs. If you’d talked to “mid-forties me”, you’d have found somebody who believed that men could be feminists. But this is bullshit, and, TJ, you’re spewing bullshit.
Every living generation of women has attested to the simple and unanswerable truth that all the women they know have been sexually harrassed or worse, and that this isn’t getting better. I mean, women a generation older than me (age 56) right down to Billie Eilish (age 19, so, nearly-granddaughter-age) have all attested to these facts. Every college routinely has “sexual abuse scandals” (code for “young men got freshmen or pre-college girls drunk and raped them”) all the time, and they’re always hushed-up. And they happen at the most elite colleges, too. The idea that somehow, the captains of industry and commerce, of politics and jurisprudence, didn’t participate, is bullshit.
And why? Because we know that it happens everywhere, and that includes schools where everybody there is from an elite background. And it is never punished.
FFS, stop defending the indefensible. It’s not about “my college experience”. It’s about seeing what’s obvious, right in front of our eyes.
And, yeah, that means that we need women jurists to run things, b/c men are too busy getting blinded by their dicks.
Jacob 12.18.21 at 11:14 pm
We don’t have to resort to speculation on this one, we have actual empirical data that answers the question conclusively!
The proportion of men who support abortion rights is very similar to the proprtion of women who do – it’s currently slightly lower; it used to be slightly higher, but there has never been much in it either way.
So I think we can be pretty confident that the point I think the cartoon was trying to make is mistaken, and that whether or not you can personally get pregnant does not have much effect on your attitude to abortion (or at least, to be fair, on your attitude to top-level questions about whether/under what circumstances it should be legal).
MisterMr 12.19.21 at 4:23 pm
For what is worth, I’d like to clarify that the cartoon, IMHO, is right as a general point on human nature; it’s just that in the specific case of abortion, as it is an argument that is strongly linked to cultural, political and religious issues, these influences have a stronger bearing than sex/gender.
J-D 12.20.21 at 1:44 am
I assume by default that everybody is biassed to some extent and in some way–and yes, I specifically include myself, although my capacity to detect and to describe my own specific biasses without assistance from others is obviously hampered. A description of somebody as ‘unbiassed’ can only ever be true in a relative sense–although being relatively unbiassed can be very important.
So I take it that all Supreme Court justices are biassed and that their decisions are affected by their biasses, even if I can’t tell to what extent and in what way a particular decision has been affected by the biasses of a particular justice. The merits of a particular Supreme Court decision (such as Roe v Wade, for example) can be and should be evaluated without reference to the known or assumed biasses of the justices, even though they must have had biasses of some kind which may have affected the decision in some way.
In general, however, although gender can’t be the only thing that affects people’s biasses (how could it be?), it must be one of the things that affects people’s biasses (how could it not be?). Therefore, a judiciary with a gender balance will be, in general, better than a judiciary with a gender imbalance, even though the effects can’t always be traced through specific decisions.
Chetan Murthy 12.21.21 at 12:47 am
Jacob @ 41: but we’re not talking about “the proportion of men”, but rather, the proportion of elite judges. But more than that, why should any male have any say in this at all? It’s not your penis at risk here, not your life at risk, so why should you, Mr. Elite Male Judge, have any say ? I don’t care whether or not “seven of nine white male judges” decided that up was down, black was white: this shouldn’t concern males, period.
Chetan Murthy 12.21.21 at 12:48 am
Should have added: It should be a matter for women, and only women, to decide.
Suzanne 12.21.21 at 5:36 pm
A couple of notes on usage:
From the OP: “abortion doctor” – I hope that “abortion provider” is meant here. “Abortion doctor” is the kind of term one usually reads on the anti-abortion side of the question. Ideally medical doctors generally should be trained on performing abortions, or so I would think.
From #12: “Mistress”? Seems a tad antediluvian.
Perhaps we should note that not all decisions to end unwanted pregnancies involve suffering or agonizing, which is how I read “tragically pregnant.” Sometimes ending a pregnancy is just a relief. It’s a different matter, of course, for women who need to end pregnancies that are very much wanted because of their own illness or a serious disability detected in the fetus.
From #12:
Rich, white conservatives are unlikely to be pulled over by the police because of the color of their skin, or find themselves turned away at the border of any country they want to visit or move to. But they can have gay children, and they want those children to be able to participate in conventional nuclear-family-forming. Similarly, it was recently observed that Bob Dole was a bog-standard conservative on most issues except disability rights, where he of course had a personal stake. Again and again, we have had it demonstrated that conservatives are incapable of (or unwilling to) have sympathy for another’s weakness or marginalization unless they’ve experienced it themselves.
Well put. There is also the example of the late Pete Domenici, a Republican senator who became a champion of mental health services when one of his daughters was diagnosed as schizophrenic.
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