Just Books
Excerpts
06/02/10
Roe and Its Aftermath
Forty years after the Supreme Court’s Landmark Decision, Abortion Remains a Hot Button Political Issue
Linda Greenhouse and Reva B. Siegel Explore the Roots of the On-Going Conflict
In January 1973, the Supreme Court declared unconstitutional Texas’s 19th century abortion statute and Georgia’s more recent “ALI”-style legislation. The Court rested its decision on the right to privacy, found in Griswold v. Connecticut (1965) to protect the use of contraceptives. Roe v. Wade ruled that the right to privacy protected a woman’s decision in consultation with her physician whether to carry a pregnancy to term. The Court held that the unborn were not “persons” under the Fourteenth Amendment but that government had a constitutionally weighty interest in regulating the abortion decision to protect potential life. The Court explained that the strength of this interest corresponded with the stage of pregnancy. While the state was prohibited from restricting a woman’s right to abortion during the first trimester of pregnancy, it was permitted to regulate abortion “in ways that are reasonably related to maternal health” in the second trimester, and could constitutionally proscribe abortion after the point of “viability” (that is, when a fetus was capable of surviving outside the womb) except if doing so would endanger the life or health of the pregnant woman.
Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)
Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy.
Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life. Instead, Roe observed:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in language that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance. In Roe, the Court states:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
.... This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
....The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical.
This form of talk in Roe reflected modes of reasoning current at the time of the opinion. The recommendations of the Rockefeller Commission in 1972 presented women as having a “conscience” guiding their decisions about abortion, but nonetheless emphasized that women make decisions with their doctors.
Gallup polls in the summer of 1972 also expressed support for decriminalization in terms that presented women as making decisions with their doctors’ guidance. Gallup reported that “Two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary antiabortion movement.
If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade.
In the period between 1970 and 1972, even as public support for decriminalization was continuing to grow, bitter conflict over abortion had already begun. The story of decriminalization in New York and Connecticut shows that, even where opponents of abortion’s liberalization were numerically outnumbered, they were single-issue focused and passionate in moral conviction. In the period before Roe, the Catholic Church led opposition to decriminalization, organizing to support and punish legislators who voted for abortion’s liberalization. The fact that the Church and the burgeoning right-to-life organizations were encouraging single-issue voting around abortion caught the attention of politicians—and not only state legislators. Even as Catholics were working to build institutions and arguments opposing abortion in secular and nonsectarian terms, abortion’s very identification as a “Catholic” voting issue (however Catholics were divided about abortion, in fact) made the issue of interest to strategists building coalitions for the national political parties during the 1972 presidential campaign.
And so, by 1972, abortion was beginning to fi nd a life in national party politics. Republican Party strategists seeking to persuade Catholic voters and other so-called social conservatives to abandon their traditional alignment with the Democrats and join the Republican cause began to incorporate arguments against abortion rights into their case against the 1972 Democratic presidential nominee, George McGovern. Abortion rights, in this view, symbolized the new morality—a problematic “permissiveness” that afflicted the nation. Those who tarred McGovern as the “triple-A” candidate who favored amnesty, abortion, and acid may have suggested more of a difference between McGovern’s position on abortion and that of Republican nominee Richard Nixon than existed in fact; but the anti-McGovern arguments nonetheless helped reframe abortion’s meaning.
Triple-A claims about abortion had little to do with the concerns motivating public health reformers (who spoke of back alleys and coat hangers) or the claim advanced by religious opponents of abortion that abortion was murder. But the triple-A claim had much to do with feminist arguments for abortion repeal. Triple-A attacks on McGovern condemned abortion rights as part of a permissive youth culture that was corrosive of traditional forms of authority. The objection to abortion rights was not that abortion was murder, but that abortion rights (like the demand for amnesty) validated a breakdown of traditional roles that required men to be prepared to kill and die in war and women to save themselves for marriage and devote themselves to motherhood. Phyllis Schlafly’s attack on abortion never mentioned murder; she condemned abortion by associating it with the Equal Rights Amendment (ERA) and child care.
These shifts in the abortion right’s meaning were accelerating in 1972, as the ERA was sent to the states for ratification, and as the question of who should govern the nation was reverberating during the primaries and through the general election. But it is not clear whom these claims actually reached in the period before Roe. Th e claims reframing abortion that we have examined were designed to mobilize Catholic and conservative voters. Patrick Buchanan’s “assault book” advised the president’s campaign to send anti-abortion messages to Catholics and the National Right to Life Committee convention; and Phyllis Schlafl y—who had worked for Barry Goldwater in the 1964 election—sent her Phyllis Schlafly Report to a network of conservative readers. Th e reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)
In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.”
During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not fi nd the support they needed, even among religious leaders. In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even aft er Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms.
When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.”
Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals,the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics.
The decades of struggle that followed Roe—between the pro-life and prochoice movements and between the Republican and Democratic parties—came deeply to affect the Court and to infuse the Court’s reasoning about abortion with a much clearer expression of the convictions of the Americans arrayed in passionate support and opposition to the decision.
The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.”
With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe.
Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court.
In Gonzales v. Carhart in 2007, the Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act of 2003. The law had been devised by the right-to-life movement to focus attention on abortions that doctors perform late in pregnancy for medical reasons; the law was designed to provoke public unease with abortion, and it succeeded. Doctors developed the regulated procedure as safer for the woman under some circumstances; abortion opponents succeeded in portraying the procedure as a step from infanticide.
The five justices in the majority insisted that Congress could regulate the method doctors employed in later-term abortions in order to differentiate abortion and infanticide, and so express respect for human life. At the same time, the opinion reaffirmed a woman’s right to terminate her pregnancy before viability, as spelled out in Casey. But while in Casey the Court had, at last, placed women at the center of the abortion decision, in Carhart the Court spoke less clearly. To the majority, led by Justice Anthony M. Kennedy, a woman seeking to terminate a pregnancy needed the state’s protection against making an unwise choice that she would come to regret. The four dissenters, led by Justice Ruth Bader Ginsburg, recalled Casey’s understanding that the abortion right vindicates women’s equality and liberty as citizens, objected that the majority had reverted to a view of women as not fully capable of acting in their own best interests.
The future of abortion rights under the United States Constitution remains uncertain. The Supreme Court will again speak to the question, but the record suggests that it is not likely to have the last word. The future lies in the Court’s ongoing dialogue with the American people. And the documents that tell that story remain to be written.
This article is reprinted, with permission, from Before Roe V Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling by Linda Greenhouse and Reva B. Siegel, Kaplan Publishing, June 2010.
Tags: justice, Linda Greenhouse, Reva Siegel, Roe v. Wade, Supreme Court, Excerpts
05/12/10
By Deborah L. Rhode
photo by Robin Andersen
“It hurts to be beautiful” is a cliché I grew up with. “It hurts not to be beautiful” is a truth I acquired on my own. Only recently have I begun to grasp the cumulative cost of our cultural preoccupation with appearance. Over a century ago, Charles Darwin concluded that when it came to beauty, “[n]o excuse is needed for treating the subject in some detail.” That is even truer today; our global investment in appearance totals over $200 billion a year. Yet when it comes to discrimination based on appearance, an excuse for discussion does seem necessary, particularly for a scholar specializing in law and gender. Given all the serious problems confronting women—rape, domestic violence, poverty, inadequate child care, unequal pay, violations of international human rights—why focus on looks? Most people believe that bias based on beauty is inconsequential, inevitable, or unobjectionable.
They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of appearance-related pursuits, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health benefits that can result from actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it.
What compounds the problem is our failure to recognize that it is a significant problem and one to which law and public policy should respond. Compared with other inequities that the contemporary women’s movement has targeted, those related to appearance have shown strikingly little improvement. In fact, by some measures, such as the rise in cosmetic surgery and eating disorders, our preoccupation with attractiveness is getting worse. Injustices related to appearance fall along a spectrum, and involve everything from debilitating discrimination and social stigma, to the costs of conformity in time, expense, and physical risk. Even relatively minor inconveniences can cumulatively exact a substantial price.
THE PERSONAL BECOMES POLITICAL:
THE TROUBLE WITH SHOES
It started with shoes. Like many American women, I have had more issues with appearance than I care to recall. Happily, however, I have landed in an occupation with undemanding standards. Academics are known for relentlessly unattractive apparel. I am a case in point. My fashion instincts veer toward frumpy, but one compensation is that they have freed me from the footwear fetishes of many otherwise sensible women. In many professional contexts, I am surrounded by colleagues tottering painfully on decorative footwear. Some of the nation’s most distinguished female leaders hobble about in what we described in high school as “killer shoes.” During my term as chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent and powerful women were stranded in cab lines and late for meetings because walking any distance was out of the question.
But inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. In an interview with the Wall Street Journal, one owner of a marketing firm acknowledged that her taste in footwear was partly responsible for her herniated disk. But about half of her clothes only “look[ed] good” when accompanied by four- to five-inch heels, so she had become resigned to pain: “There is a price to pay for beauty and high heels is one of them.” Now that designers are offering stilettos topping out at six inches, and several models wearing them have fallen on Milan runways, some stores have started to offer “Heel Walking Workshops.”
This is not, of course, a new problem. Chinese foot-binding is the most obvious, but by no means the only case in point. Although comfortable choices have clearly improved, shoe design may be the last politically acceptable haven for closet misogynists. Typical fashion profiles feature not a single item suitable for actual movement. Most have spindly heels and flesh-biting designs, on the apparent assumption that “if the shoe pinches, wear it.” All around me, smart accomplished women are doing just that, and ignoring the risk that heels this high will catch in grates, flatten arches, breed blisters, and hurt like hell on any extended walk. A startlingly large number of women are even willing to undergo painful and risky foot surgery for the sake of better “toe cleavage” that will fit fashionable styles. Women account for about 80 percent of all foot surgery, much of it related to high heels.
Some years ago, in a fit of pique, I wrote a semi-satirical New York Times op-ed on footwear as a feminist issue. Never have I touched such a responsive chord on issues involving gender; my mail box was swamped. Podiatrists sent supportive research, progressive shoe manufacturers sent catalogs, women shared tales of woe, and men vented their frustrations with wives’ dysfunctional choices. Not all responses were, however, complimentary. Some readers questioned why I had squandered this rare media opportunity on such a trivial problem. In a country where four million women annually are victims of domestic violence and twenty million live in poverty, why put the height of heels at the top of the women’s agenda? The short answer was that I hadn’t. I have been peddling earnest policy-oriented editorials on more serious topics for decades. This was the column the Times was interested in printing. But my broader point, then and now, has been to expose how appearance-related practices, even some that seem petty or benign, can cumulatively limit our lives. If men manage to be sexy without help from their footwear, why can’t women? And why have we made so little headway, in law, politics, and public education, in addressing the injustices of appearance?
THE COSTS AND CONSEQUENCES OF APPEARANCE
A threshold question is why we should care about any of these questions. What are the social consequences of physical appearance? Although most of us realize that looks matter, few of us realize how much, or how early its influence starts. Beginning at birth, those who are viewed as physically appealing are also more likely to be viewed as smart, likeable, and good. The ridicule and ostracism that unattractive children experience can result in lower self-confidence and social skills, which leads to further disadvantages in later life. Appearance also influences judgments about competence and job performance, which, in turn, affect income and status. Résumés get a less favorable assessment when they are thought to belong to less attractive individuals. These individuals are also less likely to get hired and promoted, and they earn lower salaries, even in professions such as law where appearance has no demonstrable relationship to ability.
Given these advantages, it makes sense for individuals to be concerned about their appearance. Still, the extent of that concern is striking. In representative surveys, 90 percent of women consider looks important to their self-image, and over half of young women reported that they would prefer to be hit by a truck than be fat; two thirds would rather be mean or stupid. More than a third of obese individuals are willing to risk death in order to lose just 10 percent of their weight; three quarters will assume the risk for 20 percent.
People also spend more on appearance than the results often justify. Americans invest $40 billion annually on diets, which rarely result in significant or sustained weight loss. About 95 percent of dieters regain their weight within one to five years. Of the $18 billion consumers spend on cosmetics, only 7 percent pays for ingredients. The rest subsidizes expensive packaging and marketing of products, including many that scientists find ineffectual. Even investments that result in high levels of individual satisfaction raise issues of social priorities. Although almost a fifth of the United States population lacks basic health care services, inessential cosmetic procedures have increased by 400 percent over the last decade and are the fastest growing area of medical expenditures. Liposuction is the world’s most common form of surgery.
Moreover, time and money are not the only costs. Substantial health risks accompany some appearance-driven practices, particularly those involving cosmetic surgery and yo-yo dieting. For many individuals, concerns about appearance also contribute to psychological difficulties such as depression and eating disorders. These difficulties are partly attributable to widespread stigma and discrimination. Bias based on attractiveness is largely unregulated and compounds other inequalities based on class, race, ethnicity, and gender. Prevailing beauty standards privilege those with white-European features and the time and money to invest in their appearance. Women face greater pressures than men to look attractive and pay greater penalties for falling short.
SURVEYING THE FOUNDATIONS: SOCIAL, BIOLOGICAL, ECONOMIC, TECHNOLOGICAL, AND MEDIA FORCES
What accounts for this premium on appearance? According to sociobiologists, we value attractiveness, especially in women, because it is a sign of health and fertility, which are key factors in reproductive success. Such theories help account for nearly universal preferences such as clear skin, facial symmetry, and hour-glass figures. But evolutionary imperatives alone cannot explain the variations over time and culture in what people perceive as attractive. The most obvious example is weight. Whether plumpness is prized or punished seems to depend largely on its role in signaling social status under different environmental conditions. Where food is scarce, fatness is a mark of wealth and prominence. Where food is abundant, the reverse is true. Our current cult of thinness makes no sense from an evolutionary standpoint; low body weight is linked to reproductive dysfunction.
There are other explanations for the importance of appearance and variations in cultural preferences. How someone looks can express religious and political values, as well as convey class and cultural identity. Particularly in today’s consumer-oriented culture, dress, grooming, and figure are crucial signals, as well as sources, of wealth. The body is a prime site for what sociologist Thorstein Veblen famously described as “conspicuous consumption.” Huge global industries turn on addressing problems that we haven’t always known we have. Sags and bags that were once accepted as a normal consequence of aging now account for a multibillion- dollar market in frequently ineffectual cosmetic responses.
Advances in science and technology have created new opportunities for “self-improvement” and corresponding pressures to take advantage of them. For example, the dramatic escalation in cosmetic surgery reflects both the growth in effective techniques and physicians’ efforts to market services not subject to insurers’ cost constraints. Other appearance-related products, now cloaked in a veneer of pseudoscience, promise effortless perfection. “Space-age slenderizer” and “poly-u collagen peptides” offer to shed consumers’ unwanted pounds and wrinkles overnight. The media in general and advertisers in particular have played an important role in magnifying the importance of appearance and the pressures to enhance it. Women’s magazines pitch an endless array of cosmetic advice and exhortation. Judging from their tables of contents, readers’ most urgent concerns are on the order of “thinner thighs in thirty days.” Televised makeovers and beauty pageants fuel implausible aspirations and unhealthy practices. “Reality” programs involving weight loss and cosmetic surgery are anything but realistic; careful editing omits anything inconsistent with a happily-ever-after ending. The public’s repeated exposure to airbrushed, surgically enhanced fashion models and Hollywood celebrities further reinforces unrealistic standards. Only five percent of American women are in the same weight category as models and actresses, and efforts to replicate their figures often lead to eating disorders and related psychological dysfunctions.
The media’s sexualized portrayals of prominent women, including everyone from athletes to politicians, also carries a cost. Overemphasis of their appearance deflects attention from their performance and reinforces sex-based double standards. That the highest paid member of Sarah Palin’s vice presidential campaign was her makeup “artist” speaks volumes about our misplaced priorities.
FEMINIST CHALLENGES AND RESPONSES
There have been efforts to challenge these priorities. In the United States, the nineteenth-century social purity crusade against cosmetics, the African-American campaign against skin whiteners and hair straighteners, and the feminist struggle for dress reform all set the terms for modern debates. During the Victorian era, religious and community leaders insisted that “respectable” women did not rouge. Prominent African Americans denounced cosmetic and grooming practices designed to replicate white norms. And suffragists such as Elizabeth Cady Stanton and Amelia Bloomer attempted to popularize alternatives to the corsets and crinolines that endangered women’s health and constricted their movement.
None of these efforts were particularly successful. It took the rise of the contemporary women’s movement in the 1960s to mount a broader and more sustained challenge to the beauty industry. That campaign kicked off with the infamous “bra-burning” protest at the 1968 Miss America pageant. Although no lingerie was in fact incinerated, the label stuck and battle lines were drawn. In most media portrayals, the activists were frumpy fanatical feminists, unhappy about standards of attractiveness that they could not hope to meet.
Gradually, however, the mainstream women’s movement supplied more tempered and influential critiques. Naomi Wolf’s bestselling Beauty Myth exposed many products as what dermatologists labeled “cosmetic hoo-hah.” A cottage industry of commentary on eating disorders and cosmetic surgery has made clear the medical risks of other appearance-driven practices. As critics have noted, even physically harmless preoccupations divert time and money to self-improvement rather than social action. Sexualized portrayals of prominent women—Hillary Clinton’s cleavage, Sarah Palin’s beehive, Michelle Obama’s upper arms—have underscored the double standard that channels attention to women’s appearance instead of their accomplishments.
Responses to these critiques have taken several forms. Commentators within and outside the women’s movement have defended appearance-related efforts as either a satisfying form of self-improvement and self-expression, or a necessary concession to cultural expectations. From their standpoint, the “personal may be political” but it is also personal. As long as women are subject to a double standard, they might as well do what they need to do and get on with their lives. The beauty industry has made analogous efforts to respond to feminist critiques by co-opting feminist principles. In the world of Madison Avenue marketers, diet and cosmetic products are a way for women to “be all they can be” and express who they “really are.”
Yet what is it that women want to be and how much time and money do they want to spend to get there? For many women, there are no easy answers, and issues of appearance remain a source of anxiety and ambivalence. That is particularly the case for women of a certain age, when cosmetic procedures, hair tints, and weight loss regimes begin to seem like necessary alternatives to “letting themselves go.” Even feminists who see these options as oppressive often feel shamed by their inability to escape them, or discomfited by the trade-offs. After all, as Susan Brownmiller ruefully notes, “sensible shoes aren’t sexy.”
There are some ways around this standoff. Whatever their other differences concerning appearance, most women would agree on several key points. The pursuit of beauty should be a source of pleasure, not a response to shame or social pressure. Women should be able to choose whether or not to dye their hair or use Botox without being viewed as politically incorrect or professionally inadequate. They should neither be held to a higher standard of appearance than men, nor ridiculed as vain for their efforts to measure up. If men can seem eminent as they age without cosmetic enhancement, so too should women.
APPEARANCE DISCRIMINATION: SOCIAL WRONGS AND LEGAL RIGHTS
We are, however, a far distance from this ideal world. What stands in the way? Two fundamental questions arise: Are any of the disadvantages resulting from discrimination based on appearance unjust? If so, do they call for some legal remedy?
The clearest argument for condemning appearance discrimination is that it offends principles of equal opportunity and individual dignity. As with other forms of prejudice, bias based on appearance often rests on inaccurate stereotypes. Assumptions that overweight individuals are lazy, undisciplined, or unfit are a case in point. Appearance–related discrimination also may stigmatize individuals based on factors at least partly beyond their control, and may encourage unsafe cosmetic and dieting practices.
A related concern is that such bias reinforces other inequalities based on race, ethnicity, class, age, and gender. A widely publicized example of sex-based double standards in appearance involved the grooming policy at Reno’s Harrah’s Casino. It required female beverage servers to wear makeup and nail polish, and to have their hair “teased, curled, or styled.” Male servers needed only short haircuts and fingernails that were “neatly trimmed.” Darlene Jespersen, a bartender with an outstanding performance record, challenged the policy on the grounds of sex discrimination. She felt that being “dolled up” was degrading and interfered with her ability to handle unruly customers. A federal appellate court rejected her challenge because she had not introduced proof that the standards imposed disproportionate burdens of time and expense on women, a fact that presumably would be obvious to reasonable jurors. Does anyone, except apparently some federal judges, really need expert testimony comparing the average time required for cleaning fingernails with applying makeup and styling hair? And as one dissenting judge pointed out, cosmetics “don’t grow on trees.” Such makeup and manicure requirements may seem trivial, but the broader principle is not. As another dissenting judge noted, the assumption underlying the casino’s policy was that “women’s undoctored faces compare unfavorably to men’s.” Holding only women to sexualized standards diverts attention from competence and perpetuates gender roles that are separate and by no means equal.
A final objection to discrimination based on appearance is that it restricts rights to self-expression. How individuals present themselves to the world may implicate core political values, cultural identity, and religious beliefs. Frequently litigated examples include hair length, hair styles, headscarves, and yarmulkes that employers have been unwilling to accommodate.
Although many individuals dismiss such discrimination as inconsequential, it occurs more frequently than they assume. Anywhere from 12 to 16 percent of workers believe that they have been subject to such bias, a percentage that is in the same vicinity, or greater, than those reporting gender, racial, ethnic, age, or religious prejudice. So too, almost half of surveyed Americans believe that obese workers suffer discrimination in the workplace, a figure that is higher than for other groups, such as women and minorities, who are protected by antidiscrimination laws. When asked about legal remedies, the public splits almost evenly for and against prohibitions, with a majority of women and minority groups favoring a ban.
What stands in the way? There are a few major arguments against making appearance discrimination unlawful. One concern is that for some goods and services, employees’ attractiveness can be an effective selling point. Many bars, restaurants, and department stores have imposed hiring and grooming standards that enforce a certain “brand” look: “slender,” “hot” “young and trendy” or “not too ethnic.”3 As one Hooters spokesperson explained, “A lot of places sell good burgers. Hooters Girls, with their charm and all- American sex appeal, are what our customers come for.”
Yet that is an argument that courts have generally rejected in other discrimination contexts, and with reason. Consumer preferences often reflect and reinforce precisely the attitudes that society is seeking to eliminate. So, for example, unless sex is a business necessity, employers may not select workers on that basis. The same should be true of sexual attractiveness. Hooters’ customers who want cleavage with their burgers are no more worthy of deference than the male airline passengers in the 1970s who preferred stewardesses in hot pants.
To some courts and commentators, however, a ban on appearance discrimination asks too much. From their perspective, even if such discrimination is unfair, the law is incapable of eliminating it and efforts to do so will result in unwarranted costs and corrosive backlash. Stanford law professor Richard Ford voices a common objection: “a business community united in frustration at a bloated civil rights regime could become a powerful political force for reform or even repeal.” Many judges bristle at the prospect of clogging the courts with petty disputes over makeup, weight, and grooming standards. But it is by no means self-evident that prejudice based on appearance is harder to eradicate than other forms of bias. In fact, considerable evidence suggests racial, gender, and disability biases are also deeply rooted, but nonetheless subject to change through legal prohibitions. Moreover, as discussion below notes, none of the few local and state prohibitions on appearance discrimination currently in force have triggered the exorbitant costs or backlash that critics have predicted.
Bans on appearance discrimination could contribute to progressive social change. By expressing aspirations, establishing appropriate standards, deterring violations, and raising public awareness, such legal remedies could nudge us closer to a just society. In cases where victims of appearance discrimination have brought suit, the result has often been to raise public awareness of the costs of bias and to secure workplace or policy changes that help prevent it. Even litigants who lose in court may win in the world outside it. Harrah’s casino changed its policy after the lawsuit. But Darlene Jespersen paid too high a price. She lost a job at which she excelled and was blacklisted when she sought another. As her lawyer noted, when it comes to the casino business, “Reno is a small town.”
LEGAL FRAMEWORKS
Jespersen’s experience is all too typical. On the whole, the legal regulation of appearance has an unbecoming history. Its Anglo-European foundations date to thirteenth-century sumptuary laws, which reserved certain fashions only for aristocrats. Early American legislation focused more on preventing “indecency” than reinforcing class privilege. To that end, some jurisdictions banned “unsightly” individuals or women without corsets from appearing in public.
Contemporary law has banished such archaic prohibitions, but it has also given wide latitude to businesses and employers to impose their own restrictive grooming requirements and to discriminate on the basis of appearance. In general, such discrimination is illegal only if it involves other characteristics that civil rights law protects, such as sex, race, religion, or disability. So, for example, weight and grooming standards can be struck down if they impose unreasonable, disproportionate burdens on one sex. Grooming codes may be impermissible if they fail to make reasonable accommodation for religious expression, or selectively target practices associated with a particular racial group. Disability law has been held to prohibit weight discrimination in a very small percentage of cases involving extreme obesity that has a biological basis and that appears to impair normal functioning.
Even in these contexts, however, many courts have taken a restrictive view of what counts as discrimination. A representative example is the Harrah’s casino decision, which found no disproportionate burden resulting from hair and makeup rules. Judges have also been unsympathetic to African American women’s desire to wear cornrows, and Sikh employees’ wish to wear turbans or beards, even when the employer presents no convincing business justification for banning them. Narrow interpretations of state and federal disability law also exclude from protection the very individuals who need it most: those who are only moderately overweight and who are not impaired in their job performance. Such employees can be dismissed at will even if employers can show no demonstrable competence or health-related reasons.
These dismissals seem particularly unjust when the job involves no customer contact. As an attorney for an obese man denied a job as a fast-food cook put it, “The only thing that should matter to McDonald’s . . . [is] how he cooks, not how he looks.” Cases where individuals in such positions have lost their jobs occasionally have prompted public protests and policy responses, including some of the local ordinances that ban discrimination based on appearance. How do these ordinances work in practice?
One state and six cities or counties prohibit some form of appearance discrimination: Michigan, San Francisco, the District of Columbia, Santa Cruz (California) Madison (Wisconsin), Urbana (Illinois), and Howard County (Maryland). These laws vary in coverage and in the frequency of enforcement, but no jurisdiction has experienced the flood of frivolous claims that commentators have anticipated. Hypothetical examples such as Jewish deli owners forced to hire cashiers with swastika tattoos have made for provocative journalism, but they are nowhere to be found in reported cases.39 Santa Cruz, the poster child for critics of appearance prohibitions, has had no complaints in fifteen years. Urbana has had none in seven, and San Francisco has had only two in eight years. The average number of annual complaints for the other jurisdictions has ranged between one (the District of Columbia) and thirty (Michigan). Most have included allegations of other forms of bias (race, sex, and religion). Although some of these claims seem frivolous, they could have been brought without an appearance law, so it is not clear that the law has added significantly to businesses’ legal expenses.
Few appearance complaints have resulted in litigation or an unqualified victory for the complainant. For example, Michigan has averaged fewer than one lawsuit a year, and no final judgments of discrimination. However, a substantial number of cases have ended up with reasonable negotiated settlements, and the existence of the laws may have deterred unjust bias. Moreover, the grievances that have obtained some legal remedy demonstrate the need for such protection. A representative example involved a waitress fired when she was six to seven months pregnant, despite a doctor’s letter indicating that she was still able to work. The manager’s professed concern for maternal health was inconsistent with statements that she made to other workers about the effect of the waitress’s appearance on the restaurant’s image.
The American experience fits in a broader international context. European law is similar to that of the United States, and generally prohibits appearance discrimination only when it involves other forms of bias covered by human rights law (such as that involving race, gender, religion, age, disability, and sexual orientation). However, some countries, particularly France and Germany, extend greater protection to employee privacy, dignity, and self expression; those interests prevail unless the employer can demonstrate a strong countervailing business justification. So too, in Germany, grooming codes are often established through “codetermination” between management and elected worker councils, a process that accords significant weight to employee interests. Based on the information available, the Australian state of Victoria is the only jurisdiction outside the United States that has an explicit ban on appearance-related bias. It experiences few complaints that require a formal hearing.
Part of the reason for the limited legal enforcement activity both here and abroad is that victims of appearance discrimination face significant costs and evidentiary obstacles; favorable decisions are unlikely in the absence of compelling undisputed facts. Many individuals are unwilling to assume the stigma and reputational damage of publicly airing complaints about their unattractiveness. Particularly in jurisdictions that do not authorize attorneys’ fees or substantial financial damages, victims also may lack sufficient economic incentives to pursue a claim. Another deterrent is the extreme deference that some courts and commissions give to employer regulations. So for example, Wisconsin discount stores and pet supply outlets have been allowed to ban earrings for male sales personnel. Employers’ desire to ensure a “pleasant shopping experience,” and their unsupported assumption that jewelry on men is inconsistent with that goal, have been found sufficient justification for the restrictions.
Yet despite these limitations, the existence of appearance discrimination laws can sometimes make a difference. There are, in fact, many examples in which victims of inaccurate stereotypes or invidious bias obtained reasonable remedies. When these cases also attracted significant publicity, they sent a message to employers, and raised public awareness of the costs of discrimination. A complaint before the San Francisco Human Rights Commission illustrates that potential. It involved Jennifer Portnick, a 240-pound aerobics instructor, who was denied a franchise by Jazzercise, a national fitness company. According to its lawyer, “One of the keys to success is extending franchises to instructors with a fit, toned body. Being able to portray this image inspires students . . . [and] is a necessary part of what students seek to achieve.” But Portnick was in fact fit. She worked out six days a week, taught back-to-back exercise classes, and had no history of performance problems or lack of students. She simply wanted to be “judged on my merits, not my measurements.” After a commission ruling in her favor and massive adverse publicity, the company changed its policy. The message that emerged in national media coverage was that full-bodied students can be inspired, not deterred, by an instructor their size who is fit and toned. Given recent evidence suggesting that fitness, rather than body mass, is the best predictor of health in most overweight individuals, that is an important social message.
There is one area in which more effective appearance-related laws and enforcement structures could make a difference in one particular area: the regulation of false or misleading claims about beauty and weight-reduction products. Aggressive marketing of these products both encourages preoccupation with appearance and deludes consumers about effortless ways to enhance it. Although federal and state consumer agencies have authority to regulate fraudulent advertising, they lack the resources to keep up with the barrage of deceptive claims involving pseudoscientific “miracle methods.” If promises about these products sound too good to be true, it’s because they aren’t true. No one, outside the fantasy land of Madison Avenue marketing, can “eliminate” fat through seaweed patches and Chinese herbal creams (“no will power required”). Yet consumers squander billions of dollars on such products, partly because a majority of the public wrongly assumes that manufacturers could not make these claims without solid scientific evidence for their validity.
A ROAD MAP FOR REFORM
None of these problems connected with appearance are readily remedied. Our prejudices and preoccupations run deep, and multibillion dollar industries have a stake in perpetuating them. Yet neither are we helpless to address some of the worst injustices, and, there are available that could push us in the right direction.
As a threshold matter, we need greater clarity about our goals. At the cultural level, a central priority should be to promote more attainable, healthy, and inclusive ideals. Our standards of attractiveness should reflect greater variation across age, weight, race, and ethnicity, and our grooming requirements should reflect greater tolerance for diversity and self-expression. Judgments based on appearance should not spill over to educational and employment contexts where they have no socially defensible role. More support should also be available for strategies that promote healthy lifestyles, which could also help reduce the weight-related concerns that prompt discrimination.
Law can assist that agenda by combating appearance bias and by providing greater protection from restrictive grooming regulations and misleading advertising claims. One obvious strategy would be to prohibit discrimination based on appearance that is not justified by substantial business needs. A fair and accessible dispute resolution process, with the potential for judicial review, could increase the likelihood that victims would raise concerns as well as minimize the cost of addressing them.
In the absence of specific prohibitions on appearance discrimination, some progress is possible through broader interpretations of current discrimination and disability law. When evaluating sex-specific grooming and dress codes, courts should take a realistic view of what constitutes disproportionate burdens on one sex, and should disallow rules that reinforce gender stereotypes, like the makeup requirement of Harrah’s Casino. Customer preferences should not constitute a justification for discrimination unless sexual attractiveness is a business necessity. So too, disability law should be interpreted more broadly and should encompass discrimination based on weight whether or not it involves extreme obesity with a physiological cause.
Law is, of course, only one of the strategies necessary to promote cultural change, and it is most effective when joined with other approaches. Litigation and policy initiatives can often raise public awareness about the appearance discrimination as well as the broader societal efforts necessary to address it. To achieve such reform, activists need to be strategic in how they coordinate legal, media, and political strategies. A textbook example is the work of fat activists in San Francisco after a local fitness center ran an advertisement featuring a space alien and a caption, “When they come, they’ll eat the fat ones first.” Protesters showed up at the center in alien costumes wearing signs that said “Eat Me” and “This Gym Alienates Fat People.” Activists also demanded hearings before the San Francisco Human Rights Commission to explore examples of discrimination. The result was enactment of the city’s ordinance prohibiting discrimination based on height and weight.
Another masterful coordination of legal and media tactics involved a sex discrimination suit by two former “Borgata Babes,” cocktail waitresses at the Atlantic City’s Borgata Hotel and Casino. Two “Babes” agreed, as part of their employment contract to keep a hourglass figure, and be height and weight appropriate.” The policy contributed to widespread eating disorders and related mental and physical health difficulties. Widespread media coverage led not only to a substantial settlement, but also to greater public awareness of the health issues at stake. The terms were confidential, but the impact was not. Commentators drew analogies to another celebrated lawsuit involving the Sand Hotel. There, a cocktail waitress successfully sued for sex discrimination after being forced to wear a revealing uniform and high heels, and being told that her job was to “sell sex.” That litigation prompted other Atlantic City casinos except the Borgata to offer uniforms including pants and flat shoes.
These cases underscore the possibilities for social change. Lawsuits, along with public protests, have made a difference. Workplace policies have been modified, legislation has been passed, and employees have been reinstated or compensated. Yet the full potential of law has yet to be realized. We need more explicit prohibitions of appearance related bias, and more expansive interpretations of existing antidiscrimination laws that could address it. Even if formal complaints remain infrequent, such legal mandates can play an important role in deterring and publicizing abuse, providing bargaining leverage for victims, and expressing social ideals. Beauty may be only skin deep, but the damages associated with its pursuit go much deeper. Only through a better understanding of the injustices of appearance can we fashion more effective responses.
Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford University and is the author of several books including In the Interests of Justice, Access to Justice, and Ethics in Practice.
Adapted, with the author's permission, from The Beauty Bias published by Oxford University Press, Inc. © 2010 Oxford University Press, Inc.
Further Reading Online
An editorial on this issue that Professor Rhode authored in the National Law Journal, 5-3-2010
An interview with Deborah Rhode at Concurring Opinions, 4-19-2010
Tags: Deborah Rhode, justice, Excerpts
04/29/10
Prologue
Nat, September 30, 2008
A man is sitting on a bed. He is my father.
The body of a woman is beneath the covers. She was my mother.
This is not really where the story starts. Or how it ends. But it is the moment my mind returns to, the way I always see them.
According to what my father will soon tell me, he has been there, in that room, for nearly twenty-three hours, except for bathroom breaks. Yesterday, he awoke, as he does most weekdays, at half past six and could see the mortal change as soon as he glanced back at my mother, just as his feet had found his slippers. He rocked her shoulder, touched her lips. He pumped the heel of his palm against her sternum a few times, but her skin was cool as clay. Her limbs were already moving in a piece, like a mannequin’s.
He will tell me he sat then, in a chair across from her. He never cried. He thought, he will say. He does not know how long, except that the sun had moved all the way across the room, when he finally stood again and began to tidy obsessively.
He will say he put the three or four books she was always reading back on the shelf. He hung up the clothes she had a habit of piling on the chaise in front of her dressing mirror, then made the bed around her, pulling the sheets tight, folding the spread down evenly, before laying her hands out like a doll’s on the satin binding of the blanket. He threw out two of the flowers that had wilted in the vase on her night table and straightened the papers and magazines on her desk.
He will tell me he called no one, not even the paramedics because he was certain she was dead, and sent only a one-line e-mail to his assistant to say he would not be at work. He did not answer the phone, although it rang several times. Almost an entire day will have passed before he realizes he must contact me.
But how can she be dead? I will ask. She was fine two nights ago when we were together. After a freighted second, I will tell my father, She didn’t kill herself.
No, he will agree at once.
She wasn’t in that kind of mood.
It was her heart, he will say then. It had to be her heart. And her blood pressure. Your grandfather died the same way.
Are you going to call the police?
The police, he will say after a time. Why would I call the police?
Well, Christ, Dad. You’re a judge. Isn’t that what you do when someone dies suddenly? I was crying by now. I didn’t know when I had started.
I was going to phone the funeral home, he will tell me, but I realized you might want to see her before I did that.
Well, shit, well, yes, I want to see her.
As it happens, the funeral home will tell us to call our family doctor, and he in turn will summon the coroner, who will send the police. It will become a long morning, and then a longer afternoon, with dozens of people moving in and out of the house. The coroner will not arrive for nearly six hours. He will be alone with my mom’s body for only a minute before asking my dad’s permission to make an index of all the medications she took. An hour later, I will pass my parents’ bathroom and see a cop standing slack-jawed before the open medicine cabinet, a pen and pad in hand.
Jesus, he will declare.
Bipolar disorder, I will tell him when he finally notices me. She had to take a lot of pills. In time, he will simply sweep the shelves clean and go off with a garbage bag containing all the bottles.
In the meanwhile, every so often another police officer will arrive and ask my father about what happened. He tells the story again and again, always the same way.
What was there to think about all that time? one cop will say.
My dad can have a hard way with his blue eyes, something he probably learned from his own father, a man he despised.
Officer, are you married?
I am, Judge.
Then you know what there was to think about. Life, he will answer. Marriage. Her.
The police will make him go through his account three or four more times—how he sat there and why. His response will never vary. He will answer every question in his usual contained manner, the stolid man of law who looks out on life as an endless sea.
He will tell them how he moved each item.
He will tell them where he spent each hour.
But he will not tell anybody about the girl.
This article is excerpted, with the author’s permission, from Innocent by Scott Turow.
Tags: Excerpts
03/31/10
By David Remnick
Barack Obama went to Harvard Law School to learn “power’s currency in all its intricacy in detail.” An exclusive excerpt from The Bridge: The Life and Rise of Barack Obama, David Remnick shows how much Obama learned in law school.
In the early fall of 1988, Barack Obama arrived in Cambridge sure that he would learn what he later called “a way of thinking.” He was taking on thousands of dollars in debt for the privilege. Unlike many students who end up in law school without quite knowing why, apart from its value as another blue-chip credential, Obama approached Harvard Law School purposefully, as a serious place that offered dimensions of knowledge that he could never acquire as an organizer on the South Side of Chicago.
At Harvard, he would join the world of the super-meritocrats of his generation, shifting from outsider to insider. “I would learn about interest rates, corporate mergers, the legislative process, about the way businesses and banks were put together; how real-estate ventures succeeded or failed,” he wrote. “I would learn power’s currency in all its intricacy and detail, knowledge that would have compromised me before coming to Chicago but that I could now bring back to where it was needed, back to Roseland, back to Altgeld; bring it back like Promethean fire.”
A modern would-be politician, particularly a Democrat like Barack Obama, arrives at Harvard Law School keenly aware that the law school—its students and faculty—provided much of the brainpower for the New Deal, the New Frontier, and the Great Society. Before Obama, Rutherford B. Hayes was the only President to graduate from the law school, but Harvard alumni have always been well represented in Congress and, especially, on the Supreme Court. On the current Supreme Court, John Roberts, Antonin Scalia, Anthony Kennedy, and Stephen Breyer all graduated from the law school. (Ruth Bader Ginsburg attended for a year and made the Law Review, then moved with her husband to New York, and finished at Columbia.)
By the time Obama arrived at Harvard, the law-school curriculum had grown much more flexible than in its early days and the student body more diverse, but the school was still a fractious place, riven by political conflict and intramural resentments. As if to flaunt its own unhappiness, the law-school community commonly referred to itself as a bastion of Levantine infighting—alternately “Beirut on the Charles” and “the Beirut of legal education.”
Obama said that Harvard Law School was the “perfect place to examine how the power structure works.” Indeed, the “power structure”—a phrase common in organizing circles—and how it is, or is not, examined by the likes of Harvard Law School was the focus of a battle that had already raged for a decade when Obama enrolled. In 1977, a group of legal academics—radicals, as most would readily have identified themselves—met at a conference in Madison, Wisconsin, to discuss a barely formed school of thought that was soon to be called Critical Legal Studies. Influenced by post-structuralism, the Frankfurt School of critical theory, and the Legal Realism of the nineteen-twenties, the scholars interested in Critical Legal Studies sought to demystify the law and the language of law and legal studies, to challenge its self-regard as a disinterested system of precedent. Critical Legal Studies posited that law is politics by other means, that the practice and discourse of law—and legal education—is merely another lever of entrenched power, a way of enforcing the primacy and perquisites of the wealthy, the powerful, the male, and the white.
According to the adherents of Critical Legal Studies, many of the conditions of the legal status quo—the high incarceration rates among people of color, the higher penalties for drugs used mainly among the poor—are inscribed in a legal system that only pretends to be consistent and nonideological.
By the time Obama appeared on campus, there had also appeared an increasing number of conservative and libertarian scholars centered on the Federalist Society, a many-branched group that had begun in 1982 at Harvard, Yale, and the University of Chicago. The main tenet of the Federalists was, in their terms, judicial restraint; critics argued that the Federalist vision of restraint was a form of conservative activism. The founders included such conservative jurists as Robert Bork. (On the current Supreme Court, Antonin Scalia and Samuel Alito are Federalists.) Some Federalists believe in the Law-and-Economics approach, a theoretical marriage of Milton Friedman’s free-market economics and judicial minimalism, and they look to the pioneering work not only of Smith and Pareto but of the economist Ronald Coase, and such jurists as Frank Easterbrook and Richard Posner.
At Harvard Law School, where an A.C.L.U. liberal is considered a centrist, the advent of the Federalists—a vocal minority—heightened the political tension on campus. “Posner wasn’t at Harvard, of course, but Barack was extremely interested in what he was saying and writing, too,” Ken Mack said. “Some students on the left just wouldn’t read about the ‘law and economics’ school on general principle. That wasn’t Barack.”
The combination of C.L.S. radicals, A.C.L.U. liberals, and Federalist conservatives made for constant fights at the law school, particularly over tenure decisions. In the fall of 1987, one of the younger Critical Legal Studies adherents, Clare Dalton, a specialist in family law and the wife of the economist Robert Reich, was denied tenure, despite overwhelming support from the outside review committee. When Derrick Bell, the first black professor to gain a place on the Harvard Law School faculty, staged a sit-in supporting Dalton, Robert Clark, a leading professor at the law school, cracked, “This is a university, not a lunch counter in the Deep South.” He eventually apologized for the remark, but the tone of the conflict was set.
“By the time Barack got to campus, in 1988, all the talk and the debates were shifting to race,” said Elena Kagan, who became dean of the law school and then, in 2009, was named Obama’s Solicitor General. In part as a result of affirmative action, ten to twelve per cent of the student body at the law school was African-American, and the racial atmosphere, as at so many other institutions, was marked by a general undertone of resentment and disquiet. At meals, blacks sat mainly with blacks, whites with whites. Some of Obama’s classmates told me that, as students in their early and mid-twenties, they were beginning to imagine their professional lives in the “white world”—in law firms, corporations, public service—and the process of finding a sense of confidence and identity and balance was not easy at Harvard Law.
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Tags: David Remnick, Harvard Law Review, law school, Presidents, Barack Obama, Excerpts
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