For decades, well-funded feminist groups have argued that women’s interests are best served by a “living Constitution” and by activist judges who decide cases based on the desires of the public, rather than the rule of law.
In Harris Funeral Homes v. EEOC, for example, a case currently before the court, the National Women’s Law Center has filed a brief joined by 36 other amici, 25 of which are self-described women’s groups that claim to speak for women. While there are a number of amici advocating for the other side, the number of women’s groups filing in support of Harris Funeral Homes can be counted on half of one hand.
Similarly, Zubik v. Burwell illustrates the undue influence of left-leaning women’s legal groups. In that case, the federal government refused to provide a religious exemption from the so-called birth-control mandate, for organizations like the Little Sisters of the Poor, a group of Catholic nuns that served the poor and dying, irrespective of religion. The government threatened massive fines that would have shut the Little Sister’s doors.
In Burwell, the National Women’s Law Center again filed a brief joined by no less than 68 other amici, including at least 37 self-described women’s groups that claimed to represent all women. Even in a high profile case, in which the Supreme Court ultimately held unanimously in favor of the Little Sisters, only a handful of women’s groups filed in favor of religious liberty.
Although one wouldn’t know it from the feminist legal establishment, many American women believe in a limited, constitutional role for the federal courts and understand that policy change should be made primarily through the elected branches of government. The voices of these women, however, are not often represented before the courts.
Left-leaning women’s groups also advocate for judges that will enact their favored social policies and urge the Supreme Court and lower federal courts to update old laws to reflect current elite opinion. They believe that our written Constitution can and should be updated by a simple majority of five unelected justices of the Supreme Court.
The invitation from left-of-center women’s groups to the federal courts and judges to single-handedly update our Constitution and democratically enacted laws is a threat to our fundamental right of self-governance. When judges impose their own policy preferences unmoored from the text of the Constitution or a statute, this ultimately limits the ability of women to participate in government.
The politicization of the federal bench has led to contentious confirmation hearings that all too often focus, not on a nominee’s judicial philosophy, but instead on his or her personal views all in an effort to determine how he or she will vote on a particular case.
Worse, the politicization of the bench has made routine the politics of personal destruction. Most recently, the nomination of an extremely qualified individual, Brett Kavanaugh, was nearly derailed by a coordinated smear-campaign that produced zero evidence of the accused wrong-doing. Tellingly, the Senate Judiciary Committee referred no less than four of Kavanaugh’s accusers to the FBI for an investigation of their false allegations.
For these reasons, the Independent Women’s Forum is launching the Independent Women’s Law Center to provide a much-needed counterbalance to left-leaning feminist legal groups that have dominated the legal arena. It’s a David-and-Goliath struggle, but it’s time to push back on the misrepresentation of women’s interests in the courts.
Being pro-woman does not mean supporting judicial activism. To the contrary, women’s voices — at the ballot box or in public office — can only be heard when judges stay in their constitutionally-prescribed lanes and honor the rule of law over their own policy preferences.
Erin Hawley is a senior legal fellow at the nonprofit Independent Women’s Forum and former clerk to Chief Justice John G. Roberts, Jr.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
