Nina Totenberg says the Supreme Court is the most conservative, least respected in decades
By William H. Freivogel
Nina Totenberg told St. Louis audiences last week that the U.S. Supreme Court is the most conservative in 90 years and has lost legitimacy with many Americans.
Totenberg has covered the court for the past half century, including more than four decades at NPR. She was speaking Oct. 13 to supporters of St. Louis Public Radio and later at the Justice Speaks lunch sponsored by Legal Services of Eastern Missouri.
Gallup polls have shown that approval of the Supreme Court has dipped from 60 to 40 percent in the wake of its decision to overturn Roe v. Wade and after a series of ethics questions raised about undisclosed gifts.
Totenberg said that the most serious criticism flows from Pro Publica’s investigation of Justice Clarence Thomas finding scores of expensive gifts from wealthy benefactors. Most of the other gifts received by justices are “chump change,” Totenberg said.
She dismissed questions about Justice Sonia Sotomayor’s profit from book sales and recruiting commissions for Chief Justice John Roberts’ wife. Jane Roberts earned $10 million in commissions over eight years. Totenberg said ethics complaints based on her work were a nonstarter. She added that Justice Brett Kavanaugh lives in a modest house outside D.C. and doesn’t have a lavish lifestyle.
By contrast, ProPublica reported earlier this year that Texas real estate billionaire Harlan Crow paid for vacations, private jet flights, gifts, the purchase of Thomas’ mother’s house in Georgia and tuition payments. After digging deeper, ProPublica found 38 destination vacations, 26 private jet flights, eight helicopter rides, a dozen VIP passes to professional and college sporting events and two stays at luxury resorts in Florida and Jamaica.
The only other questionable gift, Totenberg said, was Samuel Alito’s expensive undisclosed fishing trip to Alaska in 2008 paid for by Republican billionaire donor Paul Singer, whose hedge fund has business before the court.
Alito issued a hot defense, even before ProPublica went to press. Totenberg suggested Alito would be better off if someone in his inner circle would tell him to pipe down because his defensive remarks bring more attention to the issue.
Totenberg said Democrats in Congress were nowhere near having enough votes to force an ethics regime on the court and even if it did it might violation the Constitution’s separation of powers. Totenberg said Sen. Richard Durbin, D-Il., the Judiciary Committee chair just hopes that the chief justice can some up with a voluntary ethics policy that Thomas and Alito will go along with.
Roberts has said he is continuing to look at ways the court can address ethics concerns, a job that may have become easier by a statement this week by conservative Justice Amy Coney Barrett that a court ethics code would be a “good idea.”
Totenberg said Kavanaugh seemed sincere when he said that all the court had done in overturning Roe v. Wade was to send the issue back to the states and withdraw the Supreme Court from the controversy.
But the justices were clearly wrong in thinking abortion would vanish from its docket. She ticked off all of the abortion issues that now face the Supreme Court because of the 2022 Dobbs decision overruling Roe – Can a woman cross state lines to get an abortion? Can a person help a woman cross state lines to get an abortion? Can courts void FDA approval of mifepristone tablets for ending pregnancy during the first 10 weeks of pregnancy?
Partly because of the many cases that Dobbs has generated, Totenberg doubts that the Supreme Court will overturn its same-sex marriage decision, on which hundreds of thousands of families throughout the nation put great reliance. Fifteen percent of the 1.1. million same sex couples are raising children, according to census figures.
Totenberg said the partisanship of the justices was much more evident in voting patterns today than when she began in the 1970s. Then, some nominees of Repubican presidents voted on the liberal side of cases. She ticked off as examples Chief Justice Earl Warren, William J. Brennan Jr, and John Marshall Harlan – Eisenhower appointees – Lewis Powell Jr. – Nixon – Justices Anthony M. Kennedy, Sandra Day O’Connor – Reagan – and Justice David Souter – George H. W. Bush.
Today’s six justice conservative majority consists entirely of Republican nominees.
Today Chief Justice Roberts sometimes votes with the justices nominated by Democrats. He would have permitted abortions before 15 weeks rather than entirely overturn Roe. Last term he brought Kavanaugh along to form a majority throwing out Alabama’s congressional redistricting for violating the Voting Rights Act.
Totenberg said Alabama’s initial refusal to draw a second district where a Black candidate could win reminded her of the days when the segregated South tried to hold out against racial desegregation. The Alabama decision could apply to as many as three other states in the South, providing Democrats with a chance to pick up three seats as part of an effort to take back the majority in the House.
The reason Roberts’ decision was surprising in the Alabama case is that he was the author of a decision a decade ago throwing out the preclearance provisions of the Voting Rights Act that prevented voting changes in the South from going into effect if they were discriminatory. At the time, Roberts said the nation had changed, having even elected a Black president. Totenberg recalled that her friend, the late Justice Ruth Bader Ginsburg, had written at the time that getting rid of preclearance was like a person in a rain storm throwing away an umbrella because they weren’t getting wet.
Scrutiny of 5th Circuit
Totenberg said that the 5th Circuit in the deep southern states of Alabama, Mississippi, Louisiana and Texas has become the most conservative in the country and that the decision overturning the Alabama racial redistricting might presage other decisions from that appeals court that could be thrown out by a majority consisting of the Democrats plus Roberts and one or more of the more moderate conservatives, such as Kavanaugh or Barrett.
Among the cases she cited were:
The decision challenging the FDA’s approval of mifepristone dispensed through the mail;
A decision throwing out the Biden administration’s crack down on “ghost guns” that can be assembled by the user without being registered or traceable. (On Oct. 16 the Supreme Court blocked a lower court ruling that ordered the Biden administration not to enforce its crack down on the guns.)
A decision finding that the government violates the First Amendment when it urges social media to take down false posts about such topics as covid vaccinations.
Case Law School Professor Jonathan H. Adler wrote this month about the high number of Fifth Circuit decisions that the Supreme Court was overturning. He noted between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes).
The older the better
At the St. Louis Public Radio breakfast, Totenberg was asked if she favored mandatory retirement ages for the justices.
She said she was no more in favor of mandatory retirement for justices than she was for reporters, such as herself, writing about the justices.
She said she was a better reporter today than she had been years ago and gave an example from recent events. When California Sen. Dianne Feinstein died recently Totenberg remembered a time on the Senate floor when Sen. Larry Craig, a conservative from Idaho, had said the senator’s sponsorship of an assault weapons ban might be because she wasn’t familiar with firearms. Feinstein replied sharply that she was very familiar with firearms having been the first person to come to the aid of former San Francisco Mayor George Moscone when he and gay councilman Harvey Milk were assassinated by a fellow councilman. Feinstein recalled that she had put her finger in the gunshot wound in a failed attempt to stop the bleeding.
NPR broadcast the exchange that Totenberg remembered and it was widely replayed on social media in the wake of Feinstein death.
Totenberg said she was a better reporter on that story because, “I was there.”
William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.
Chief Justice Roberts falling short on recapturing Supreme Court legitimacy
Last December, GJR published “A citizen’s guide to a U.S. Supreme Court losing its legitimacy.” This follow-up recounts recent ethics controversies and the leading decisions of this past term.)
After 18 years, Chief Justice John G. Roberts Jr.’s Supreme Court has the lowest credibility of any court in almost a century. The court’s standing has not been this low since FDR tried to pack the court after it struck down New Deal laws.
Credibility and legitimacy are the coin of the realm for the 68-year-old chief justice who could remain atop the court for another two decades or longer. He is quite likely to surpass the record 34 years that famous Chief Justice John Marshall guided the court from 1801 to 1835.
Roberts will be judged for how well he retained the court’s credibility at a time when a conservative majority of hard-right justices are gaining control and when sharp political divisions in society are pressure-testing the machinery of democracy.
The chief justice is trying hard to defend the court’s legitimacy, but polls and legal commentary suggest he is falling short.
New disclosures about lavish hospitality received by Justices Clarence Thomas and Samuel Alito have only made the chief justice’s defense of the court more difficult. He declined to appear before Sen. Richard J. Durbin’s Senate Judiciary Committee citing the importance of retaining a separation of powers between the branches of government. But critics accused him of dodging the ethics issue and say the highest judges in the land should have ethics standards at least as strict as other judges. Durbin’s committee voted 11-10 in July to advance a bill requiring the court to create an ethics code and a process for the public to file ethics complaints.
None of the disclosures about Thomas or Alito is likely to lead to them being forced from the court. Both are stubborn men who would not capitulate to public pressure. Nor are there the votes to impeach them or to pack the court with more liberal justices – a move that many think would just exacerbate the legitimacy problem. The Senate bill to require an ethics policy also won’t pass the House. And even if it passed, experts say the court would probably find it unconstitutional for violating the separation of powers.
Still the stories of lavish gifts have permeated the public debate about the court.
The chief justice, who came on the court as one of the more conservative justices, is now positioned in the ideological middle of a court that has moved right.
The big dip in the court’s legitimacy came from the Dobbs vs. Jackson decision a year ago overturning Roe v. Wade and 49 years of precedents that had reaffirmed the constitutional protection of abortion as part of a woman’s privacy right. A Gallup poll after Dobbs showed disapproval of the court had risen to 58 percent, the highest in 90 years.
The Associated Press-NORC Center for Public Affairs Research found this year that confidence among women had crashed with just 12 percent of women saying they had great confidence in the court. As recently as 2018, that number had been 32 percent.
Roberts tried to head off Dobbs’ explicit abandonment of Roe. But he wasn’t able to persuade his most likely conservative ally, Brett Kavanaugh, to join him in a more moderate approach.
Kavanaugh joins Roberts in the middle
In the just completed term, the chief justice was more successful bringing over Kavanaugh in a surprising pro-voting rights decision from Alabama that upholds the Voting Rights Act’s consideration of race to keep states from minimizing Black voters by packing them into the fewest possible congressional districts.
Roberts and Kavanaugh also joined the three justices appointed by Democrats in rejecting the effort by southern states, including Missouri, to force the federal government to expel or lock up millions more undocumented immigrants whose only crime was crossing the border. Kavanaugh wrote that the states did not have legal standing to force the federal government to arrest more people than it had the capacity to incarcerate.
Kavanaugh, Justice Amy Coney Barrett and Roberts joined the Democratic justices in rejecting the so-called independent state legislature theory that would have allowed state legislatures to ignore state law in redistricting. The court held that the Constitution “does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.” Former President Donald Trump and his supporters who tried to replace Trump electors for Biden electors in decisive states in 2020 had favored the independent state legislature theory.
The lesson of these three moderate decisions is that the conservative majority that read the abortion right out of the Constitution will not always hold up in the most controversial cases.
Lee Epstein, the leading analyst of Supreme Court voting patterns and a former professor at Washington University, put it this way: “The data show a shift from the most conservative and aggressive court in modern history to one that has moderated. Perhaps the justices — especially Roberts, Barrett and Kavanaugh — have faced up to the public’s waning confidence and decided to self-adjust.” Epstein’s data analysis is in The New York Times.
Richard J. Lazarus, another former Washington University law professor now at Harvard, said Roberts seemed to have wrested control of the court back from Justice Clarence Thomas. “The chief rather than Thomas remains the most influential justice on the court in terms of the outcomes in the court’s opinions,” he said.
Stephen Vladeck, a University of Texas law professor, told the Washington Post’s Ruth Marcus: ‘the chief justice and Justice Kavanaugh and Justice Barrett are fairly conventional conservatives, what we might call Bush conservatives. And it ought not to be surprising that Bush-type conservatives are troubled by some of the especially envelope-pushing arguments that are being advanced by plaintiffs and some states in these cases.”
It also is notable that the Supreme Court has turned a cold shoulder to Trump’s false election claims and his challenges to criminal investigations. Also, bar disciplinary proceedings are punishing some of the lawyers who pitched his false claims in court.
Trump was so mad at the court last fall when he was forced to turn over his taxes that he told his followers to ignore the Supreme Court’s authority.
“The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on
More recently Trump has made political points in the Republican presidential primary by taking credit for having appointed the justices who overturned Roe.
Even if Trump’s justices on the court are not receptive to his extreme legal claims, some Trump judges in the lower courts have made questionable and much criticized decisions that serve to undermine the legitimacy of the federal courts.
One Trump judge took the abortion drug off the market even though it had a long track record of safety. Another Trump judge tried to appoint a special master requested by Trump in the secret documents case. A third, on July 4, ruled in favor of Missouri and the Gateway Pundit in ordering that the federal government not to contact social media companies relating to constitutionally protected speech, even if it is wrong.
The first two of these decisions were quickly set aside. The third – recently put on hold by an appeals court – is based on what many First Amendment scholars think is a highly questionable legal theory that seems to interfere with the social media platforms First Amendment rights.
Gregory P. Magarian, the Thomas and Karole Greene professor of law at Washington University, said on St. Louis Pubic Radio on July 10, that the Louisiana judge’s ruling limiting government contact with social media platforms was “very surprising.”
He continued, “it is a very sweeping and consequential order. And I don’t know of any precedent like this, where a court essentially told the government, you can’t even communicate with a speech provider of some kind to encourage or urge or give the government’s point of view about whether certain content should be available…
“It’s important to understand that this is a highly politically charged case and dispute. The attorneys general who are bringing these claims are uniformly Republican attorneys general, the judge, in issuing the order made a point of saying that the problem was censorship of conservative speech. And in his words, that was very telling. This has been a theme on the right for a long time that the conservative speech is being censored. It doesn’t really seem to occur to these concerned attorneys general…that some of the speech being excised from these social media platforms may actually be false, pernicious misleading, may present problems that the social media platforms of their own initiative would want to get off their platforms….
“If the government says, ‘Hey, anti Vax stuff on on Facebook is getting people killed. And Facebook says, Yeah, we agree. Thanks for bringing that to our attention. We think we should do something about that.’ That’s not a First Amendment violation that’s socially responsible intermediation of speech.”
Some liberal media and political commentators have suggested that it is a mistake to read too much into the cases where Roberts appears to have engineered a moderate outcome. Each of the opinions was hedged and they are outweighed, commentators say, by the final decisions of the term ending affirmative action in college admissions, overturning President Biden’s college loan forgiveness plan and protecting the speech of a Colorado web producer who had religious objections to being required to create websites celebrating the marriage of same-sex couples.
Two decades of conservative victories
In speeches defending the legitimacy of the Supreme Court, Roberts has said it is wrong to downgrade the legitimacy of the court based on the unpopularity of some decisions.
In an interview on C-Span a few months after the Dobbs decision, Roberts said, “I don’t understand the connection between opinions that people disagree with and the legitimacy of the court…You don’t want public opinion to be the guide to what the appropriate decision is….”
Most legal commentators agree that the court should interpret the Constitution, not try to win a popularity poll.
But critics of the Roberts court disagree with its legal approach. The court has tossed aside settled precedents and has delivered on a conservative political wish list involving abortion, affirmative action, voting rights, school desegregation, guns, religion, big money in politics and less deference to government regulation.
In addition, the majority of the justices now embraces originalism as the proper way to interpret the Constitution, basing decisions on the meaning of constitutional provisions when they were written and the historical traditions of the country at that time.
During the Warren court half a century ago, no member of the court was an originalist. Critics say the originalist approach freezes the Constitution to a historical tradition that protected slavery, limited democracy and equality and ignored women’s rights, which were nonexistent.
Even though Roberts has been pushing back against some moves to the right, he has engineered some of the most important conservative opinions of his court.
In a 2007 Seattle school desegregation case he said race should not be taken into account in school assignments, declaring, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He reiterated that sentiment in his opinion for the court throwing out affirmative action admissions policies at Harvard and the University of North Carolina.
Civil rights lawyers were particularly incensed that Roberts cited Brown v. Board of Education as consistent with this colorblind approach to race. Thurgood Marshall, who argued Brown and was the first Black justice on the court, made it clear during his life that race had to be taken into account to undo the vestiges of segregation.
Roberts also wrote the 2013 Shelby County v. Holder decision finding unconstitutional the part of the Voting Rights Act that required Justice Department preclearance for voting changes in the South. This is one reason that his decision this term to uphold another part of that law and rule for Black voters in Alabama was widely viewed as one of the term’s big surprises.
Roberts was part of the majority in Citizens United, the unpopular decision permitting unlimited corporate and union treasury money to be used to help elect candidates.
And he was in the majority of the court’s 2008 Heller decision to recognize an individual Second Amendment right to a gun, a decision that also reversed precedents extending back to the era of bootleggers in the 1920s. Justice Thomas has successfully expanded that right to the point that gun regulations are now considered constitutional only if there was an historical analogy in 1791.
The court may be rethinking that approach, however, because it agreed to hear a case next term where an appeals court threw out the federal law that bars guns for domestic abusers. Zackey Rahimi of Arlington Texas pushed his girlfriend to the ground during an argument in 2019, dragged her to his car, slammed her against the dashboard and then fired a shot in the air to scare off a bystander. The court may well have picked that case with such unfavorable facts to pull back from Thomas’ insistence on a historical analogy for gun regulation. There is no 1791 analogy to taking away guns from domestic abusers.
The Roberts court also has reversed the deference that its predecessor offered federal regulators. The “Chevron” deference that the court once extended to federal regulators has been replaced by a “major questions” doctrine that denies deference on controversial issues such as the environment and student debt relief, requiring instead explicit congressional authorization for the regulators’ actions.
The one issue on which the Roberts court has moved in a progressive direction is in recognizing same-sex marriage, although that was over Roberts’ strong dissent.
Dobbs undermined the legal underpinnings of the same-sex marriage decisions by cutting back on the constitutional protection of personal dignity and privacy. But the chief justice will almost certainly support same sex marriage as a binding precedent, so it is in no immediate danger of being overruled.
Still the court didn’t seem friendly to LGBTQ+ people in 303 Creative L.L.C. v. Elenis when it supported the free speech right of a Christian web designer who sought a court declaration that Colorado’s public accommodations law violated the First Amendment by forcing her to design sites for same-sex marriages that she opposed on religious grounds.
The 303 Creative case has a Missouri connection because the website designer, Lorie Smith, was represented by the Alliance Defending Freedom, a Christian legal advocacy group where the senior counsel is Erin Morrow Hawley, wife of Sen. Josh Hawley, R-Mo.
Ms. Hawley’s advocacy group was accused of misleading the court by suggesting that Smith had received a request from a gay man seeking a website for an upcoming marriage, when the man told the New Republic he never made the request and is married with a family.
Liberal critics have suggested Ms. Hawley should be sanctioned, but that is far-fetched. It seems the mythical web request had no effect on the case because it was a pre-enforcement challenge to allow a person to challenge a law without subjecting herself to committing a crime.
Still, the stories have contributed to the impression that the court was anxious to decide the case even though there was no indication that any actual person had requested the service of Smith. The Supreme Court’s rejection of the Biden college loan forgiveness also has been criticized on these grounds because the court concluded that Missouri had standing to challenge the program based on its impact on MOHELA, a Missouri college loan servicer that had not challenged the Biden program.
Deciding cases where identifiable people are harmed is a basic tenet of American law and is embraced by both conservative and liberal authorities. It is part of judicial restraint to keep the courts from becoming too powerful.
Magarian said Monday that it was clear the court was anxious to decide the 303 Creative case. “Clearly, the Supreme Court wanted to decide this case, wanted to hand down this ruling. And so they sort of stormed through the barriers that that ordinarily kind of defined procedurally what they can do.”
Now, Magarian said, “there will certainly be instances of people coming out and saying, ‘Hey, we provide an expressive service or an expressive good, we should be able to discriminate against African Americans, we should be able to discriminate against immigrants, we should be able to discriminate against women, we should be able to discriminate against Jews, or maybe against Christians or maybe against men.’”
Magarian has long criticized the Roberts court for being more solicitous of the well-heeled and powerful in First Amendment cases. As he has put it, “The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers.
Conservatives point out that the court’s 303 Creative decision could theoretically protect the free speech of an LGBT web designer. If the hypothetical designer wanted to refuse to design a website for a socially conservative church, the designer could rely on 303 Creative to defend against the church’s claim that public accommodations laws ban discrimination against religion and require the designer to create the site.
The author of the website decision was Justice Neil Gorsuch who wrote a pro-gay rights decision in 2020 holding that the federal civil rights law banning sex discrimination protects people from discrimination based on sexual orientation. For that reason, Gorsuch is not seen as hostile to gay rights.
Rip Van Winkle
Linda Greenhouse, the former Pulitzer-Prize winning Supreme Court reporter for The New York Times, recently suggested this thought experiment as a way to assess the Roberts court.
“Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.
“To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.”
Greenhouse’s conclusion: “By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.”
The legal landscape that Greenhouse paints is a daunting terrain for the chief justice’s uphill battle to recapture the court’s legitimacy by showing that the court’s decisions are based on law and not political preference.
St. Louis judge bars Post-Dispatch publication in murder case
The Post-Dispatch has called upon a St. Louis judge to dissolve an order barring the paper from publishing mental health information about accused murderer Thomas Kinworthy. Kinworthy, 46, is accused of killing officer Tamarris Bohannon on August 29, 2020 at a house on Hartford Avenue.
Joseph E. Martineau, representing the Post-Dispatch, called St. Louis Circuit Judge Elizabeth Hogan’s order blocking publication a “classic prior restraint.”
Prior restraints are highly disfavored under the First Amendment and only permitted in the most extreme cases where disclosure of national security secrets poses an imminent threat to national security.
Half a century ago, the U.S. Supreme Court ruled in the Pentagon Papers case that President Richard M. Nixon could not block publication of 40-plus volumes of classified secrets about the Vietnam War.
In the current case, Post-Dispatch reporter Katie Kull obtained information about Kinworthy’s mental health evaluation in a public court filing. The mental health evaluation had been mistakenly added to the public record.
Martineau wrote that, “When information has been obtained legally from a public proceeding or document, the United States Supreme Court and appellate courts around the country have consistently rejected any restraint on publication.”
He noted that the Supreme Court had ruled in 1989 that a reporter for the Florida Star could not be sued for publishing the name of a rape victim even though state law made it illegal to publish the name. Justice Thurgood Marshall wrote then that absent a “state interest of the highest order,” the newspaper could not be punished for the publication of lawfully obtained truthful information.
Can the First Amendment keep up with the brave new world of machine manufactured misinformation?
Tolerance for the speech we despise is the lesson of 232 years of the First Amendment. Yet the nation is awash today in public attacks on free speech and intellectual freedom from right, left and center.
Conservatives – some of whom picture themselves in the Oval Office – ban “woke” ideology, “critical race theory,” drag queen story hours, library books that mention diversity or sexual content and the popular TikTok social platform used by 150 million Americans. They empty school library shelves in Florida, want to end medical treatment for transgender adolescents and bar trans athletes from women’s sports.
At the same time, liberal law students recently shouted down a Trump judge at Stanford law school fortified by the moral support of a dean. Tirien Steinbach, dean for Diversity, Equity and Inclusion, asked appeals Judge Kyle Duncan if his words were “worth the squeeze,” given how upsetting they were to protesters. Meanwhile, inside newsrooms from the New York Times to Washington University’s Student Life, reporters face dissension from their colleagues and trans rights activists for reporting on criticism of transgender medical treatments.
If this weren’t confusing enough, Artificial Intelligence has entered the public sphere with soulless machines programmed with more facts than any human can learn. How long will these genius machines have patience with the relatively stupid people they serve?
The CEO of the most eye-catching AI experiment, ChatGPT, is a young man with whom some St. Louisans grew up, Sam Altman. He is remembered at John Burroughs as the student in the early 2000s who persuaded teachers to put up “Safe Space” signs for gays and who came out in his senior year. Altman dropped out of Stanford after realizing he was learning more from poker than the AI/robotics lab where he worked, according to a profile in the New York Times.
GJR devotes much of this issue to exploring what AI may mean for journalism and education.
Jackie Spinner, our editor, interviews educators who think it makes more sense to use AI as a tool to improve learning and journalism rather than branding it as cheating.
Mark Sableman, one of St. Louis’ most prominent media lawyers, asks what could go wrong once AI is added to the media world. “Everything,” he says, especially if AI is used as “reader ready content,” untouched by human hands.
Sableman’s point is illustrated by one of our stories that was written by ChatGPT itself. We asked it to tell us about Altman’s background in St. Louis. The 500-word response claimed Altman and his wife had made a major contribution to LaunchCode and he graduated from Stanford in 2007. But Altman is gay and did not graduate from Stanford. In a separate piece, ChatGPT identified Spinner, the GJR editor, as a professor from Mizzou rather than Columbia College Chicago.
Altman, in his interviews, recognizes dangers of AI while making soaring claims about its importance to humanity.
In the Times’ story, Altman pointed out he shared a birthday with Robert Oppenheimer, leader of the Manhattan Project and quoted him to the effect that, “Technology happens because it is possible” – a plain statement of technological determinism.
He went on to say, his company could “solve some of our most pressing problems, really increase the standard of life and also figure out much better uses for human will and creativity.” He thinks OpenAI could capture much of the world’s wealth and redistribute it to ameliorate poverty.
Altman voiced similarly sweeping conclusions in an interview with radio personality Charlie Brennan in 2021 reminiscing about his childhood in Clayton when he walked through the back gate to Captain Elementary School.
He said, “We started OpenAI because we thought this thing that was happening of us….like humanity, building digital intelligence is going to be one of the most important milestones in human history and it could go either really well or really badly and we did not think there was enough effort to make sure it happens safely and in a way that humans broadly benefit.
“It’s very hard to think about what the world is going to be like when we have superhuman capacity inside a computer, computers that can learn anything…that can think billions of times faster, smarter than the smartest human on any topic simultaneously and that eventually become self-aware and have their own desires and will and none of the limitations that humans have…
“This is going to be a bigger technological revolution than the three great ones so far, the agricultural revolution, the industrial revolution and the computer revolution all put together….Everything is going to change.”
Altman may be right, but his claims sound exaggerated. The Washington Post reported this month that some AI experts question the speed with which Altman introduced AI to the public and his company’s transition from a nonprofit to a “capped profit” structure that allows investors to earn 100 times their investment..
Altman’s dreams are reminiscent of the now tattered hopes that existed around the turn of the century that computer technology and the smart phone would democratize the media by putting a printing press in every person’s pocket. Comments at the end of online stories would bring immediate accountability to journalists who wrote distorted stories.
The promised land didn’t arrive. Yes, citizen journalists captured big stories such as the Ferguson death of Michael Brown, yet some of the stories they sent the world were mythical, such as the Hands Up, Don’t shoot story line. And the comments at the end of stories often became forums for racism and misogyny.
Lockerdome, renamed Decide, is a current example of how a crown jewel of St. Louis tech startups can end up fueling disinformation. Paul Wagman lays out how it has helped monetize dozens of sites promoting election denial, white supremacism, Christian nationalism, Covid skepticism, climate-change denial and other far-right passions and fantasies. And the St. Louisans who operate the company won’t even offer a public explanation of their behavior.
Meanwhile, a young generation of smart phone natives stares into their devices while losing personal contact, many becoming increasingly isolated and depressed with the inches-high representation of the world that plays out on their screens.
Today’s parents – and grandparents – face a daunting task of protecting the next generation from the screens that seduce them into electronic isolation and despondency.
Sen. Josh Hawley, R-Mo., has a point when he talks about passing a law to cut off teen access to social media platforms until 16, although such a law couldn’t be enforced.
Hawley seems mostly intent, though, on making headlines for his obvious pursuit of the White House.
Recently he got into a floor debate with fellow Republican Rand Paul, a libertarian from Kentucky, when he asked for unanimous consent to ban the TikTok app. Paul refused to give his consent and pointed out that the law violated the First Amendment. (Ironically, the only reason I saw the exchange is that it came across my TitTok feed.)
Hawley claimed TikTok wasn’t free speech because it made private search data of Americans available to the Chinese Communist Party and that was an act of espionage. Paul pointed out that there was no proof that was happening to the data and that U.S. search engines similarly mine private data and make it available to third parties.
Hawley also has been busy in congressional hearings bludgeoning social media platforms for taking the advice of government health officials and removing false Covid and anti-vax claims. He knows full well from his years as a brilliant student at Stanford and Yale and his time as a Supreme Court clerk that the First Amendment only applies to the government. But he misleads his followers into thinking that government advice to the social media companies is coercion.
Recently, Hawley and Missouri Attorney General Andrew Bailey launched investigations of the Washington University Transgender Center at St. Louis Children’s hospital and called for it to halt its care. Chancellor Andrew Martin, after a weak initial response, refused to halt the treatment. Meanwhile the Missouri Senate has passed a bill that would put a four-year moratorium on puberty blockers, hormone therapy and surgery for those under 18.
The Student Life newspaper’s straightforward coverage of the dispute ran into criticism from both some staff members and from trans activists who said the newspaper’s neutrality in its reporting harmed trans students.
New York Times editors have run into the same criticism from within and without the newsroom. Newsroom employees wrote a letter criticizing the paper’s “anti-trans bias” that aligned with “far-right hate groups.”
Executive Editor Joseph Kahn responded sharply. “Participation in such a campaign is against the letter and spirit of our ethics policy. We do not welcome, and will not tolerate, participation by Times journalists in protests organized by advocacy groups or attacks on colleagues on social media and other public forums.”
Hawley should stay out of the business of medical professionals and leave the family decisions to parents and children in consultation with doctors. But reporters must present a straightforward story to the public in an unbiased way.
One way that news professionals respond to the news and information chaos of today’s public forum is to advocate for media literacy. Illinois was one step ahead of the rest of the country in passing the first media literacy requirement for public schools.
Emily Cooper Pierce, GJR’s student editor, spent a year traveling to Illinois schools to see how it is working out. She found many teachers had not even heard about the requirement, few received professional development and there was no funding to implement the new mandate.
It’s safe to say that Illinois students are no more media literate today than before the law passed.
So the nation barrels towards a brave new world of information technology as the presidential election season approaches with one leading candidate building his campaign for the world’s most powerful job on a mountain of false claims about winning the last election. The criminal investigations and trials he faces are just fake news conspiracies brought on by a weaponized legal system, he claims.
How will the new wizards of AI create an algorithm that deals with the fact-free delusions of almost half the people in the country?
All this plays out in a chaotic electronic world of trillions of bits of information and misinformation – a world in which Truth tries to catch up with Falsity but lags a lap behind because false news is more sensational, simplistic and exciting.
Oh, for the time when John Milton could confidently predict on behalf of free speech that when Truth and Falsehood grapple, “who ever knew Truth put to the worse in a free and open encounter?”
William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.
‘Remember the Ladies’
When the great-grandmothers of today’s young women were born, women couldn’t vote. They were expected to be mothers and homemakers.
When the grandmothers of today’s young women were born, women had no legal protections against discrimination in education, jobs or credit. The Supreme Court said “Equal Protection” in the 14th Amendment didn’t include women.
When the mothers of today’s young women were born, the nation was in the midst of a great legal and social revolution so sweeping that women began to take their places as equals in society and before the law. They had gained control of their reproductive decisions and legal protection against pregnancy discrimination, sexual harassment and discrimination in education programs. Female teachers couldn’t be fired any longer for getting pregnant and girls’ and women’s sports teams started getting more resources.
Today’s young women are coming of age at a time when their legal rights are being cut back for the first time in this century-long continuum of growing autonomy and expanding women’s rights as the Supreme Court has taken away a woman’s control of her reproductive decisions.
The Founding Fathers would not be surprised that the law would limit women’s rights; they recognized no women’s rights.
Abigail Adams, wife of one president and mother of another, took time out from managing the family farm and household in Braintree, Mass. to write a letter to her absent husband on March 31, 1776. She wrote: “…in the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies…We are determined to foment a Rebellion and will not hold ourselves bound by any Laws in which we have no voice, or Representation.”
Historians say she was mostly kidding and that’s certainly the way her husband took it in his reply talking about the “Despotism of the Petticoat.”
Coverture and subservience
The subservient status of colonial women is shocking today, but it was accepted without question by the Framers of the Constitution who didn’t even debate it at the Constitutional Convention.
“Most Americans for much of their history were convinced that God and nature had decreed that the two sexes inhabit different spheres and have different roles,” said historians Linda K. Kerber and Jan Hart-Matthews. “Men’s roles were public and political, women’s domestic.”
Through the entire 19th century and into the 20th, women’s intellectual pursuits were widely believed to be improper, physically harmful and detrimental to motherhood and perpetuation of the race.
Thomas Jefferson hoped women would be “contented to soothe and calm the minds of their husbands returning ruffled from political debate.” As president, he quickly put an end to a rumor he might appoint women to political office – “an innovation for which the public is not prepared, nor am I,” he said.
In antebellum days, the progressive ideal of a woman was defined by Republican Motherhood, influencing their husbands and educating their sons for public service. The ideal Republican Mother was rational, self-reliant and benevolent.
At this time, the rules of coverture – derived from English common law – gave husbands the rights to a wife’s paid and unpaid labor, most of her property and her obedience. Wives couldn’t sue or make contracts without their husbands’ consent, nor could they vote. In the eyes of the law, the “very being or legal existence of the women is suspended during marriage” wrote William Blackstone, the great 18th-century legal commentator from Britain.
In 1839, Mississippi enacted the first Married Women’s Property Act, but it was mainly intended to give women continued control of slaves.
Catharine Beecher traveled the country campaigning for a schoolhouse in every community and a woman in every schoolhouse. Male teachers, she noted, were often “low, vulgar, obscene, intemperate” and bad teachers.
When women gathered at Seneca Falls in 1848, they wrote their Declaration of Sentiments, patterned on the Declaration of Independence, except they declared “all men and women are created equal.” Instead of laying out King George’s tyrannies, it laid out the tyrannies of men, beginning with the refusal to allow women to vote or have any voice in lawmaking. Other grievances were discrimination in education, jobs and pay and the prevailing double standard of morality.
Man “has endeavored, in every way that he could, to destroy woman’s confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.”
Elizabeth Cady Stanton, who wrote the declaration, hadn’t always believed in a public role for women. She and her husband attended a convention in London to discuss abolition of slavery. The men at the convention debated whether women should be allowed to join them, while the women sat in a curtained gallery and were forbidden to speak on the question. “Refined torture,” Stanton called it.
That is where she met Quaker preacher Lucretia Mott from Philadelphia and was astonished to see her speak to a group of men. The two decided to hold a women’s convention in the U.S., which became Seneca Falls. In the meantime, Stanton had been chafing at her husband’s patronizing attitudes.
“How rebellious it makes me feel when I see Henry going about where and how he pleases,” she complained in a letter. “He can walk at will through the whole wide world or shut himself up alone. As I contrast his freedom with my bondage I feel that, because of the false position of women, I have been compelled to hold all my noblest aspirations in abeyance in order to be a wife, a mother, a nurse, a cook, a household drudge.”
Despite the bold words in the proclamation, none of the women at Seneca Falls was bold enough to be chairman; instead, they asked Mott’s husband to serve as chair. Also, the call for suffrage for women passed by a bare majority.
The press roundly denounced the Seneca Falls declaration. Some papers called the women “Amazons.” Others criticized those seeking a “petticoat empire.” The Albany Advocate wrote, the Declaration of Sentiments was a mere parody and added, “it requires no argument to prove that this is all wrong. Every true hearted female will instantly feel that this is unwomanly.”
“Equal” doesn’t apply to women
The 14th Amendment provided in 1868 that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and added, “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”
But when two women – one from Missouri and one from Illinois – went to the Supreme Court to claim the amendment’s protection, they quickly found they were not included.
Myra Bradwell had studied law in her husband’s Chicago law office and ran a well-respected legal publication. The Illinois Supreme Court had denied her the right to practice law solely because she was a woman. She argued the privileges and immunities protected by the 14th Amendment included her right to pursue a profession.
Her lawyer in the Supreme Court, Matthew Hale Carpenter, harkened back to the Declaration of Independence saying, “In the pursuit of happiness all vocations, all honors, all positions, are alike open to every one; in protection of these rights all are equal before the law.”
There was no lawyer arguing the other side of the case, but Bradwell lost anyway. As the 1873 opinion put it, “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
“The harmony…(of) the family institution is repugnant to the idea of a woman adopting to a distinct and independent career from that of her husband…The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mothers. This is the law of the Creator.”
Practicing law is a right that can be granted by a state, not a privilege guaranteed by the Constitution, the court said.
The next year, the Supreme Court turned away Virginia Minor, the president of the Women’s Suffrage Association of Missouri, who had tried to register to vote in St. Louis in 1872 but been denied by the registrar.
Chief Justice Morrison Waite, writing for a unanimous court, wrote there was no doubt but that women may be citizens, but there was also no doubt that not all citizens of the United States can vote. It’s up to the states to decide who has that right and Missouri said no.
“If the law is wrong it ought to be changed,” the court said. “But the power for that is not with us.”
Also after the Civil War, Anthony Comstock crusaded successfully for the passage of laws against pornography that included provisions Comstock himself had drafted making contraception illegal. Soon 24 states had passed laws outlawing contraceptives. Comstock believed that contraception caused lust and lewdness.
Woman not made for man
At the nation’s centennial in 1876, women suffragists asked for permission to hold a silent protest at the reading of the Declaration of Independence. They were turned away, told the nation was celebrating “what we have done the last hundred years, not what we have failed to do.”
Susan B. Anthony and four women showed up anyway and set up their counter-centennial speech across the street from Independence Hall. “We ask our rulers, at this hour, no special privileges, no special legislation. We ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States be guaranteed to us and our daughters forever…We deny that dogma of the centuries, incorporated in the codes of all nations – that woman was made for man – her best interests, in all cases, to be sacrificed to his will.”
Political Motherhood replaced Republican Motherhood. The extensive involvement of women in public life was justified as a kind of civic housekeeping and an extension of concern for children and families. Women joined the Women’s Christian Temperance Movement, the settlement house movement and National Consumers’ League.
Even when the Supreme Court seemed to be ruling in favor of women, it did so based on debilitating sex stereotypes. In 1908 in Muller v. Oregon, the court upheld Oregon’s imposition of a 10-hour work day for women. The court was persuaded to approve the law by a 113-page brief that Louis Brandeis – a future and famous justice – filed in its support.
But the decision was hardly a victory for women. It was an invitation to a permanent status of inequality and inferiority.
“That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious,” wrote Justice David J. Brewer. “This is especially true when the burdens of motherhood are upon her…by abundance testimony of the medial fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body and as healthy mothers are essential to vigorous offspring, the well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
“Education was long denied her and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequence in increasing the capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother.
“Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength…As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved.”
The 19th Amendment
Internal splits developed within the Suffrage Movement. Anthony and Stanton tried to win support from racist Democrats by arguing that white women should be allowed to vote to offset the new electoral power of Black men. Others found these arguments reprehensible and said they undermined the moral authority of the movement.
The movement was strong but splintered by 1916. One group, the National American Woman Suffrage Association, relied on careful tactics and ladylike behavior. Headed by Carrie Chapman Catt, the 2-million strong organization set up a powerful grassroots lobbying campaign by leading citizens.
Many of the more moderate women wanted to concentrate on building on the nine states that had recognized women’s suffrage by 1913.
Alice Paul organized the 1913 Woman Suffrage Procession for March 3, the day before Woodrow Wilson’s inauguration. Hostile counter-demonstrators overwhelmed an inadequate police presence, with male counter-demonstrators threatening some of the women.
After the march, Paul broke with the National American Woman Suffrage Association and formed the Congressional Union – later called the National Woman’s Party. It concentrated on pressuring President Woodrow Wilson to endorse a national constitutional amendment.
In January 1917, before Wilson’s second inauguration, Paul and other members of the National Woman’s Party picketed in front of the White House calling themselves “silent sentinels.” Picketing in front of the White House was unusual and possibly unprecedented.
Paul and some of the picketers were arrested and jailed. Eventually, Paul began a hunger strike to protest jail conditions and was force-fed raw eggs through a tube. The protests, arrests and hunger strike drew national attention but also generated angry attacks from bystanders who thought it disloyal and treasonous to picket the White House during a war.
In 1918, Wilson announced support for the amendment and the House passed it but it fell two votes shy in the Senate. Protests continued into 1919, with Wilson burned in effigy for not doing more to pass the amendment, which finally made it through the Senate.
In August 2020, Tennessee provided the decisive ratification vote. The vote was so close that it turned on the decision of the youngest member of the Legislature, Harry Burn. Burn said his mother had sent him a letter to “help Mrs. Catt.” He changed his mind and voted yes.
Alice Paul campaigned for women’s rights for four more decades, leading early advocacy of the Equal Rights Amendment and persuading Congress to add protection for women into the Civil Rights Act of 1964.
Even ‘sprightly’ barmaids may not apply
Even after women won the right to vote, the Supreme Court continued to give women second class status under the Constitution.
As late as 1948, the court upheld a Michigan law that forbade a woman to work as a bartender unless she was the “wife or daughter of the male owner.”
Justice Felix Frankfurter jovially noted the “historic calling” of the “alewife sprightly and ribald,” but cautioned that the 14th Amendment “did not tear history up by the roots.” He added that Michigan could “beyond question, forbid all women from working behind a bar…The fact that women may not have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes.”
And in 1961, the court upheld a Florida law that excluded women from jury lists unless they requested inclusion, resulting in almost all all-male juries. The court continued to interpret equal protection in light of a woman’s role in the family, just as it had in Bradwell almost a century earlier. A woman, who had been convicted of killing her husband with a baseball bat after he cheated on her, thought women on the jury would better understand her plea of temporary insanity.
But the court said no. “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.”
Major legal gains for women began with the Equal Pay Act of 1963. In 1964, Congress passed the Civil Rights Act that included sex discrimination as an afterthought. A Southerner, Rep. Howard W. Smith, D-Va., helped add sex to the grounds for discrimination, possibly as a poison pill to defeat the entire act. Some members of Congress laughed. Smith joked the amendment would guarantee the right of every woman to a husband. Nevertheless, sex was included in the final law.
Another major victory for women and girls was Title IX of the Education Amendments of 1972, which banned discrimination in education programs receiving federal funds.
Title IX is known best today for the enormous change brought in high school and college athletics. But it applies to all education programs receiving federal funds and has had a big impact on the investigation of sexual harassment on campuses.
Many of the early women’s rights cases involved discrimination against pregnant women.
In 1970, Jo Carol LaFleur, then 23, became pregnant while a teacher at Patrick Henry Junior High School in Cleveland. School board policy required pregnant teachers to take unpaid leave five months before birth. They could reapply for a position the school year after the baby turned three months but would be subject to a physical exam and wouldn’t get a job unless one was open. The schools said that pregnant women often couldn’t perform required duties during the last five months of pregnancy and that the policy was intended paternalistically to protect the health of the mother and baby.
LaFleur was forced to resign in March when her due date wasn’t until July. The Supreme Court, taking into account a brief filed by then attorney Ruth Bader Ginsburg, ruled in 1974 that the policy violated LaFleur’s liberty protected by the Due Process clause of the 14th Amendment.
“Freedom of personal choice matters of marriage and family life is one of the liberties protected by the due process clause,” the court decided. After the experience, LaFleur, now Jo Carol Nesset-Sale, went to law school and became a lawyer.
But later the same year the court ruled against pregnant women in another case. It upheld a California insurance program that did not cover pregnancy and birth. The majority said the state could make distinctions based on pregnancy unless there were “mere pretexts designed to effect an invidious discrimination against members of one sex.” The court wrote in Gedulig v. Aiello that, “While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.”
Justice Samuel Alito in the Dobbs decision overruling Roe cites that case and concludes “regulation of abortion is not a sex-based classification” and therefore not subject to the close scrutiny that sex-based classifications would receive.
In 1976, the Supreme Court upheld a General Electric Co. disability plan that covered vasectomies and prostate surgery but not pregnancy. Justice William H. Rehnquist, wrote, “Exclusion of pregnancy from a disability benefits plan providing general coverage is not a gender-based discrimination at all.”
Justice William J. Brennan, the leading liberal on the court, thought this was nonsense. “Surely it offends common sense to suggest…that a classification revolving around pregnancy is not, at a minimum, strongly “sex related.’”
After the setbacks in the Supreme Court, women’s right groups persuaded Congress to pass the Pregnancy Discrimination Act in 1978 requiring employers with health insurance to provide coverage of pregnancy and births.”
Ginsburg v. Schlafly
The next decades were a race between two very different women, Ginsburg and Phyllis Schafly from Alton, Il. Ginsburg was taking case after case to the Supreme Court to provide women with equal rights under the Constitution, while Schlafly was convincing state legislators to kill the Equal Rights Amendment for fear of same-sex bathrooms and women in the military. Schlaly said she only needed her husband’s permission to lead her ERA battle.
Both women succeeded.
The ERA still is not part of the Constitution, and Ginsburg won almost complete legal equality by including women as deserving “equal protection.”
In several of Ginsburg’s big cases, her clients were men, not women. Winning equal rights for men transferred equality to women.
Weinberger v. Wiesenfeld, grew out of the tragic death of Paula Wiesenberg who died while giving birth to her son, Jason.
On Friday, June 2, 1972 Paul had taught school as usual. On Monday, she was dead. Unexpected labor complications caused her lungs to fill with fluid, which led to cardiac arrest.
Jason was the couple’s first child. Wiesenfeld didn’t even know how to change a diaper.
Because Paula had paid into the Social Security system for seven years, Jason was eligible for $206.90 a month. Wiesenfeld asked if he was eligible.
“You would be if you were a woman,” he was told. It made no difference that Paula had been the family’s primary breadwinner.
Wiesenfeld hired a succession of five housekeepers who didn’t work out. He quit computer programming and opened a bike store so he could spend more time with his son.
When a local newspaper wrote a story about men at home, he wrote a letter to the editor. A professor at nearby Rutgers University saw the letter and put him in touch with the Women’s Rights Project of the ACLU, which was run by Ginsburg. Ginsburg made sure Wiesenfeld sat right behind her at oral argument so the all male justices could see his face and sympathize.
The court ruled unanimously in his favor. “It’s no less important for a child to be cared for by its sole surviving parents when that parent is a male rather than a female,” Justice Brennan wrote for the court. Ginsburg lived to see Jason enter her alma mater, Columbia University law school.
The other victory for women won with a male client was Craig v. Boren, which ended up allowing fraternity men to buy near beer at 18 rather than 21.
Curtis Craig, a fraternity brother at Oklahoma State University, joined the owner of Honk ‘n’ Holler, a local liquor store, to challenge a state statute that permitted the sale of 3-2 beer to women because they were more refined drinkers who could handle their liquor.
Ginsburg called it a “gossamer” case, “a non-weighty interest pressed by thirsty boys.” Ginsburg showed that the state didn’t have evidence that its law had any effect on traffic safety and noted it was based on stereotypes and generalities. She convinced the all-male bench to use a new, tougher test for sex discrimination. The new standard was more demanding than the lowest standard for review the court uses – rational basis – but less demanding than the highest standard – strict scrutiny, used in race cases. The court adopted an in-between standard – intermediate scrutiny. That made it easier to challenge laws that favored one sex.
The pinnacle of Ginsburg’s legal career was the opinion she wrote as a justice on the Supreme Court throwing out the male-only admission requirement of the Virginia Military Institute, a male bastion.
In an extraordinary public announcement of the decision from the bench, Ginsburg said a state violated equal protection when it “denies to women simply because they are women equal opportunity to aspire, achieve, participate in, and contribute to society based upon what they can do.”
“…reliance on overbroad generalization typically male or typically female tendency estimates about the way most women or most men are will not suffice to deny opportunity to women whose talent and capacity place them outside the average description…state actors may not close entrance gates based on fixed notions concerning the roles and abilities of males and females.”
The Constitution, she said, does not justify “the categorical exclusion of women from an extraordinary educational leadership development opportunity afforded men. …women seeking…a VMI quality education cannot be offered anything less.”
The lone dissenter, Justice Antonin Scalia, issued a characteristically tart dissent calling it “one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “‘more perfect Union,’…”
What is a woman?
During Justice Ketanji Brown Jackson’s confirmation hearing Sen. Marsha Blackburn (R-Tenn.) asked a seemingly simple question – “what a woman is.”
Jackson’s response was by turns puzzled, nervously amused and then lawyerly in saying she couldn’t define the word without knowing the legal context.
The brief confrontation was one of those moments that captures the public imagination because suddenly all of the complexities of the Supreme Court are boiled down to one simple question a kindergartner might answer but a brilliant Harvard Law graduate would not. The exchange quickly became big news on Fox and other right-leaning media sites that used it in an unsuccessful attempt to derail her nomination.
Blackburn quoted a passage from Justice Ginsburg’s opinion in the VMI case: ‘Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. The two sexes are not fungible.”
Blackburn asked Jackson if she agreed physical differences between men and women are enduring? The senator’s political point was clear, however: Jackson’s inability to define a woman underscores the “dangers of the progressive education that allows children to talk about their sexual identities.”
“Just last week,” Blackburn added, “an entire generation of young girls watched as our taxpayer funded institutions permitted a biological man to compete and beat a biological woman in the NCAA,” a reference to Lia Thomas, a champion transgender swimmer on the University of Pennsylvania’s women’s team.
Critics pointed out that Blackburn has a long record of opposing laws that Ginsburg had supported as a lawyer or upheld as a justice. Blackburn voted against the Lilly Ledbetter Fair Pay Act of 2009, the reauthorization of the Violence Against Women Act and opposed ratification of the ERA.
Jackson finally found a way not to answer the question. She pointed out that the definition of sex in the law was an issue that is likely to come before the court, so she should not express an opinion.
One interesting footnote is that Justice Neil Gorsuch, one of the most conservative justices on the court, wrote the decision in 2020 holding that the word sex includes sexual orientation and gender-identity.
Where were the women in Dobbs
In his majority opinion in Dobbs, Justice Alito quickly dismissed the equality dimension that Planned Parenthood v. Casey added in affirming Roe. That equality dimension was that control of reproduction was necessary for women “to participate equally in the economic life and social life of the nation.”
Alito maintained that “a State’s regulation of abortion is not a sex-based classification,” citing a 1976 decision where women employees were denied health benefits for pregnancy.
Alito added that “this Court is ill-equipped to assess “generalized assertions about the national psyche.’” Casey’s notion of reliance on precedent was not as concrete as reliance interests are when “property and contract rights” are involved,” he said.
Alito also cited a number of equal rights advances for women as making abortion unnecessary for women to have an equal place in society.
He wrote that “‘modern developments’ in society’s attitude toward women make these equality arguments outmoded, arguing that ‘…attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted safe haven laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new-born up for adoption today has little reason to fear that the baby will not find a suitable home.”
A controversial footnote that Alito added, quotes the Centers for Disease Control and Prevention stating that “the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent.”
Legal commentator Emily Bazelon of The New York Times wrote that Alito’s decision was ignoring the reality of a woman’s life. Quoting from an amicus brief by economists, she wrote: “Pregnant people are still denied accommodations at work, despite a 1978 law that’s supposed to protect them from discrimination. Women still experience an economic ‘motherhood penalty.’ And the financial effects of being denied an abortion…are ‘as large or larger than those of being evicted, losing health insurance, being hospitalized or being exposed to flooding’ resulting from a hurricane.”
Linda Greenhouse, the Times’ long-time Supreme Court reporter, wrote in a companion article that she was shocked that women were almost entirely absent in the Alito opinion. It is “astonishing that in 2022 he would use his power to erase the right to abortion without in any way meaningfully acknowledging the impact both on women and on the constitutional understanding of sex equality as it has evolved in the past half-century.”
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William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.