While speaking at a conference at the University of Colorado, Boulder in 2012, Supreme Court Justice Ruth Bader Ginsburg addressed a question she was occasionally asked about the makeup of the land’s highest court: When will there be enough women on the Supreme Court? “When I say, ‘When there are nine,’ people are shocked. But there had been nine men, and nobody’s ever raised a question about that.”
Raising questions is precisely what the authors and editors of Feminist Judgments: Rewritten Opinions of the United States Supreme Court set out to do. In 2016, Linda Berger, Family Foundation professor of law at the UNLV William S. Boyd School of Law, and her co-editors published the original volume with Cambridge University Press, examining what the outcomes of U.S. Supreme Court cases could have been if they’d been decided from a feminist perspective. The U.S. Feminist Judgments Project is one of a growing number of similar international endeavors.
“In the process, people said to us, ‘You’ve got to do other subject matters, other courts,’” Berger says. And so the group obliged: In 2017, Feminist Judgments: Rewritten Tax Opinions was published, and six others are currently in progress, with UNLV law professors authoring opinions in four of them.
For the volume that focuses on employment discrimination, Berger and the co-editors of the series turned to William S. Boyd professor of law Ann McGinley, esteemed masculinities scholar and co-director of Boyd’s Workplace Law Program. McGinley’s manuscript is expected to be completed by fall 2019. “On the subject of employment discrimination, Ann McGinley is the editor you’d want,” Berger says. “She is the person.”
McGinley’s written works include Masculinity at Work: Employment Discrimination Through a Different Lens, as well as an opinion in Feminist Judgments. She’s also written 50 law review articles on employment discrimination. So she is indeed the right person for the task—and given that workplace harassment is at the center of the #MeToo movement, this is absolutely the right time to address the topic.
“This movement is prime for talking about how law has not done an excellent job figuring out employment discrimination,” says McGinley, who has written extensively about sexual and gender-based harassment.
Her volume will explore 15 employment discrimination cases—including disputes that arose in Nevada between Nevada employers and employees, and were decided by the U.S. Supreme Court—that she and her co-editor selected, with help from a board of employment discrimination experts they assembled. Like the volumes that came before it, each case is examined with a rewritten opinion and a commentary from a feminist perspective—an analysis of the original judgment’s impact, and how it differs from the feminist perspective—written by different authors.
Unlike previous volumes, McGinley has made an effort for the employment discrimination opinions to be “consistent with one another and create a new body of law.” Therefore, the new commentaries will feature an additional layer: explaining how subsequent employment discrimination cases would have been affected by a feminist judgment.
Of course, the only way to gather a diverse group of opinions was to recruit a diverse group of writers, so McGinley and her co-editor enlisted authors of different ages, races, sexual orientations and genders, and from different legal settings.
“A lot of students read opinions and say, ‘That’s just the way the law is,’” McGinley says. “Then you read [Feminist Judgments] and you think, ‘Oh my goodness, here’s where the law is. If the feminist perspective had been used, the law would be way out in front of where it is now.’ That will hopefully train a new group of students to go out, become lawyers, become judges, and change the law.”
