Friday, February 09, 2007

O.W. Holmes Jr. Man of His Time Club Member: Justice Bradley in Bradwell v. Illinois

From a certain point of view, Bradwell v. Illinois, 83 U.S. 130 (1873), is a forgettable case. In Bradwell, the Court builds on the Slaughter-House Cases, holding that the right to practice law is not among the Privileges or Immunities protected by the 14th Amendment.

What is memorable about the case is Justice Joseph Bradley's (wink, wink) concurrence in this 8-1 opinion.

Based on the undeniable power of this concurrence, I'm proud to announce that Justice Bradley has just won entry into the hallowed halls of the O.W. Holmes Jr. Man of His Time Club, a select club for bygone Supreme Court Justices who included startlingly pre-modern passages in their opinions. (Of course, Holmes's opinion in Buck v. Bell is offensive enough to install him as the permanent founding member.)

Here's Justice Bradley, concurring that the 14th Amendment doesn't prohibit Illinois from denying Myra Bradwell admission to the bar on the basis of her sex:
[T]he 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 constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband . . . It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

Bradwell, 83 U.S. 130 at 141.

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At 11:55 AM, Anonymous Anonymous said...

Of course, through the Reed v. Reed (1970), Mississippi Univ. for Women v. Hogan (1982), and U.S. v. Virginia (1996) line of precedent the Court rejected the notion that gender or sex can be used as an over-broad criterion to "pigeonhole" people as to assign them to their designated talents and functions. In other words, sex is no reasonable indicator of a person's choice of (or her/his capability to achieve) a given task.

Less well-known is Justice Harry A. Blackmun's opinion of the Court in Automobile Workers v. Johnson Controls (1991). Although Automobile Workers was not a constitutional case, the majority applied the same ratio decidendi to invalidate the company's sex-specific fetal-protection policy as violative of Title VII, as amended by the Pregnancy Discrimination Act (PDA). Consider the following language from the syllabus of the majority opinion in Automobile Workers:

"By excluding women with childbearing capacity from lead-exposed jobs, respondent's policy creates a facial classification based on gender and explicitly discriminates against women on the basis of their sex under 703(a) of Title VII. Moreover, in using the words "capable of bearing children" as the criterion for exclusion, the policy explicitly classifies on the basis of potential for pregnancy, which classification must be regarded, under the PDA, in the same light as explicit sex discrimination."

A female worker's "ability" (immediate or future) to bear children has no legitimate or lawfully protected bearing on the company excluding her from a certain job. It follows, ipso facto, that the Court assumed that the female worker was entitled to make this choice on her own accord and her mere ability to have children didn't necessarily mean that she would exercise this choice someday in the future. Accordingly, this was a lame excuse for the company to be solicitous and paternalistic and to exclude her from the dangerous job unfit for the timidity befitting her sex and station in life (to paraphrase Justice Bradley's Bradwell concurrence). That said, Justice Ginsburg was correct in the last abortion case (Gonzales v. Carhart) that the majority's dictum cast into doubt many of these sex equality ideas animating the Court's prior decisions concerning reproductive freedom. At this point, things are rather uncertain and "a chill wind blows." Webster v. Reproductive Health Services (1989) (opinion of Blackmun, J.).


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