Law and Lived Experience: Applying Pragmatic Feminism to Supreme Court Rulings Open Access

Abstract

In this thesis, I will argue that pragmatic feminism offers a set of applicable principles for the Court to employ in its constitutional interpretation, especially in cases pertaining to women’s rights. First, I survey current modes of constitutional interpretation to demonstrate the variety of issues the Supreme Court faces when making its rulings, ultimately showing that traditional modes of constitutional interpretation no longer measure up to the demands of the current-day United States. Next, I broadly cover feminist legal theory, which understands the law to be inherently imbued with masculine interests that oppress women. I include critiques made by postmodern theorists to highlight that feminism must move beyond justifying distinctions and similarities between men and women: feminism ought to instead focus on uncovering overlapping biological and sociological forces that construct gender. I then propose that pragmatic feminism combines the most useful elements of constitutional interpretation and feminist legal theory. Following the philosophies of William James and John Dewey, a pragmatic feminist form of judicial review would uncover hidden interests, biases, and harmful categorizations within existing law. Crucially, I demonstrate that this form of judicial review already exists in past Supreme Court opinions. I look at the majority opinion in Califano v. Goldfarb and the dissenting opinion in Dobbs v. Jackson Women’s Health Organization, highlighting the language used by the Justices that corresponds with a pragmatic feminist method of judicial review. Finally, I conclude by emphasizing that pragmatic feminism presents an applicable path forward for the Supreme Court to rigorously pursue the interests of a plurality of citizens, thereby furthering American democracy.

Table of Contents

Introduction.....................................................................1

Current Modes of Constitutional Interpretation............................4

Feminist Legal Theory.......................................................14

Applying Pragmatic Feminism to Supreme Court Cases................27

Conclusion.....................................................................37

Works Cited...................................................................40

About this Honors Thesis

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School	Emory College
Department	Philosophy
Degree	B.A.
Submission	Honors Thesis
Language	English
Research Field	Law Philosophy
Keyword	Feminism Pragmatism
Committee Chair / Thesis Advisor	John J. Stuhr, Emory University
Committee Members	Sean Meighoo, Emory University John T. Lysaker, Emory University

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