Persuasive or Pipe Dream? The Potential Influence of the Feminist Judgments Project on Future Judical Decision Making

Both the Supreme Court collection and tax decision collection of the FJP, as with all of their sister projects, were limited in their ability to rewrite the law. ⁽²⁷⁾ Specifically, authors of the feminist opinions had to write as if bound by the law and facts as they existed at the time. ⁽²⁸⁾ Authors could expand on the facts presented in the opinion, but only if those additional details were available in the record before the Court or subject to judicial notice. ⁽²⁹⁾ The opinion authors were free to write reimagined majority, concurring, or dissenting opinions. ⁽³⁰⁾ In the Supreme Court collection, the opinion authors created fifteen new majority decisions, of which eight changed the outcome and seven changed only the reasoning. ⁽³¹⁾ This collection contained four feminist concurrences, one partial concurrence/dissent, and five dissenting opinions. ⁽³²⁾ The tax law collection contains seven rewritten majority opinions, two dissents, one dissent in part and concurrence in part, and one concurrence. ⁽³³⁾

The FJP calls on authors to rewrite the opinions from a feminist perspective, ⁽³⁴⁾ but allows each author to choose from the “multiplicity of theories, methods, and approaches” within feminist legal theory. ⁽³⁵⁾ For example, in the FJP published to date, some opinions reflect theories of formal equality, while others take an anti-subordination or intersectionality approach. ⁽³⁶⁾ Opinion authors also use recognized feminist methods, such as feminist practical reasoning and narrative feminist method. ⁽³⁷⁾ As a result, the rewritten opinions have a wide variety of outcomes and reasoning.

In some cases, the majority decision was re-envisioned to such a degree that the new, imagined opinion had the opposite outcome to the original. ⁽³⁸⁾ For example, in the rewritten majority opinion of Town of Castle Rock v. Gonzales, Professor Maria Isabel Medina found that “the Colorado statute restricting law enforcement's discretion to refuse to enforce mandatory arrest restraining orders created a property interest that entitles its holder to meaningful process under the Due Process Clause.” ⁽³⁹⁾ This is directly contrary to the Supreme Court's majority opinion in the original decision. ⁽⁴⁰⁾ Despite the difference, Professor Medina based her opinion on existing precedent and facts, relying on a broad interpretation of Board of Regents v. Roth⁽⁴¹⁾ as well as reasoned consideration of the plain language and legislative history of the underlying Colorado statute. ⁽⁴²⁾ Professor Medina's traditional legal arguments were bolstered by a detailed factual immersion into the reality of domestic violence. Using the feminist jurisprudential method of narrative and contextualization, ⁽⁴³⁾ Professor Medina detailed the long history of women's legal subordination, the stereotypes beneath it, and how this led to a lack of enforcement of protective orders against domestic abusers. ⁽⁴⁴⁾ She explained the nationwide effort to combat these biases through mandated enforcement and provided explicit description of the violence these laws were intended to mitigate. ⁽⁴⁵⁾

In other FJP cases, the identical outcome was bolstered by a reinvigorated legal theory reflecting the insight of time and a critical analysis of the original decision. ⁽⁴⁶⁾ As just one example, in the rewritten Roe v. Wade, Professor Kimberly Mutcherson based the right to abortion not just on a right to privacy, the basis of the original opinion, ⁽⁴⁷⁾ but also on due process and equal protection. ⁽⁴⁸⁾ Professor Mutcherson further rejected the trimester framework and established a strict scrutiny test for any state effort to restrict access to abortion. ⁽⁴⁹⁾ Mutcherson adopted the argument of a number of scholars that limitations on abortion depend on gender stereotypes about women's “inherent” nature as mothers. ⁽⁵⁰⁾ Thus, Mutcherson used the classic feminist legal method of “asking the woman question,” ⁽⁵¹⁾ delving into the effect of abortion restriction laws that reinforce gender inequality. ⁽⁵²⁾ By doing so, Mutcherson explored the equal protection implications of abortion rights. ⁽⁵³⁾

Finally, in a number of important decisions, the feminist perspective led to a ringing dissent, looking to future legal change for the adoption of the author's viewpoint. ⁽⁵⁴⁾ For example, in the feminist judgment of United States v. Morrison, Professor Aníbal Rosario Lebrón wrote a dissenting opinion challenging the original opinion's holding that the Violence Against Women Act (VAWA) exceeded congressional authority under the Commerce Clause. ⁽⁵⁵⁾ Applying narrative feminist method—and in sharp contrast to the brief and euphemistic references in the original case—Professor Rosario Lebrón's dissent provided explicit detail of the underlying case, including the rapist's “debasing remarks about what he liked to do with women.” ⁽⁵⁶⁾ Rosario Lebrón drew on earlier Commence Clause precedents to focus on the burden and effect upon interstate commerce, rather than recent trends that analyze the source of the commerce, and used congressional findings to detail the ways gender violence acted as “a form of economic domination.” ⁽⁵⁷⁾ Rosario Lebrón also made the novel argument that the VAWA was a means to comply with the United States’ obligations under international law, specifically the International Covenant on Civil and Political Rights (ICCPR) which calls on signatories to combat gender-motivated violence. ⁽⁵⁸⁾

One goal of the FJP is “[t]o make the point that law may be driven by perspective as much as stare decisis.” ⁽⁵⁹⁾ The FJP seeks to demonstrate that a “more complex and contextualized vantage” would lead to a different decision making process. ⁽⁶⁰⁾ The FJP is based on the premise that decision makers are profoundly influenced by “subjective (and often unconscious) beliefs and assumptions,” that “reinforce traditional or familiar approaches,” and that these underlying influences generate the systemic inequalities within the law. ⁽⁶¹⁾ Indeed, according to the FJP, “all decision making involves a situated perspective … affected by assumptions and expectations of norms relating to gender, race, class, sexuality, and other characteristics.” ⁽⁶²⁾ The FJP's goal then, is to shed light on these underlying biases, and challenge the myth that judges are neutral actors who merely apply the law. ⁽⁶³⁾ The FJP asserts that by highlighting these subjective, situated influences, the Project creates the conditions for avoiding that influence, and thus, for changing the law. ⁽⁶⁴⁾

This stated premise of the FJP draws on the concepts of cultural cognition, a psychology-based theory of judicial decision making which asserts that unconscious cultural and cognitive forces subconsciously affect judges. ⁽⁶⁵⁾ Cultural cognition recognizes that people process information in a manner that supports their existing viewpoint; overlooking information that is inconsistent with their values and overvaluing facts that support it. ⁽⁶⁶⁾ When judges bring their own cultural perspective to a case, this type of processing results in biased decision making, a result termed “cognitive illiberalism.” ⁽⁶⁷⁾ According to cultural cognition theory, this is unconscious, and judges sincerely believe they are applying the law neutrally, without deliberate reference to their ideological beliefs. ⁽⁶⁸⁾ Consequently, those who adopt cultural cognition theory, and its related concepts of implicit bias, look to solutions via exposure, education, and conscious de-biasing techniques such as deliberately considering other points of view. ⁽⁶⁹⁾ According to theories of cultural cognition, by training decision makers on the influence of these biases and teaching them to use their conscious mind to counteract them, biases in decisions can be reduced or eliminated. ⁽⁷⁰⁾

As noted above, the FJP appears to adopt this approach to understanding the origin of biased decision making and what are the potential solutions. In particular, many ⁽⁷¹⁾ of the rewritten opinions in the FJP seek to create legal change by offering new factual details omitted from or incompletely considered in the original opinions. ⁽⁷²⁾ This is consistent with the premise of cultural cognition that biases causes decision makers to unconsciously disregard facts that are inconsistent with their viewpoint, and the proposed solution of consciously examining the previously unconsidered perspective. ⁽⁷³⁾ For example, in her rewritten opinion of Meritor Savings Bank v. Vinson, Professor Onwauchi-Willig revised the legal standard for sexual harassment to analyze the work environment, not from a reasonable person standard, but from the perspective of a “reasonable victim in the complainant's shoes.” ⁽⁷⁴⁾ In crafting this standard, Onwauchi-Willig emphasized the factual circumstances of the plaintiff, a single woman with limited education who is dependent on her job to support her family, noting women are more likely than men to view conduct as harassment and some are less likely to resist or complain given vulnerable economic circumstances. ⁽⁷⁵⁾ Onwauchi-Willig went on to change the legal standard and hold employers strictly liable for sexual harassment by supervisors; again emphasizing the facts of worker vulnerability and the need to earn a living in contrast to the employer's superior ability to control a supervisor harasser. ⁽⁷⁶⁾

It is a common belief that judges, particularly the justices of the Supreme Court, are political, meaning they decide cases based on ideological preferences, not based on neutral application of the law. ⁽⁸⁰⁾ A number of political science scholars have empirically tested this general view and find that ideology does determine judicial outcomes. ⁽⁸¹⁾ The notion that ideology drives decisions is usually termed the attitudinal model of judicial decision making. ⁽⁸²⁾ The attitudinal model can be paired with the strategic model, which also asserts that judges engage in ideological decision making, but adds a constraint. ⁽⁸³⁾ Specifically, the strategic model claims that judges want to make ideology based decisions but are confined in their ability to do so by other political forces, such as the potential for reversal, or in the case of the Supreme Court, legislative override or even impeachment. ⁽⁸⁴⁾ Consequently, the strategic model states that judges will only vote as ideologically as possible, modifying their preferred position to stay below the partisan level of voting that could result in that type of backlash. ⁽⁸⁵⁾

These political science theories pose a challenge to the FJP. If judges are ideological decision makers, no amount of creative or persuasive arguments will alter the legal outcomes. The only real recourse would be political action, the election of a president who would appoint feminist minded judges and justices and the election of feminist minded legislators who might provide strategic incentive for the courts to be less hostile to feminist legal goals. If these theories are the correct understanding of how the courts work, the FJP is merely academic, and the time invested in the Project is perhaps better spent in the political arena.

The field of political science, however, does not monolithically limit the FJP to a thought exercise. A number of political science scholars counter the ideological theories and offer alternative theories on how and why the law does matter to, and constrain, judges. ⁽⁸⁶⁾ These alternative theories create the possibility that legal arguments, such as those offered by the FJP, can influence judges. In particular, the principles of “historical institutionalism” explain how judges, including Supreme Court justices, are limited by the institutional norms of the judiciary, including, for example, an obligation to apply precedents and consider certain legal values. ⁽⁸⁷⁾ As described in Section B below, according to this theory, institutional constraints prevent courts from acting as solely partisan decision makers. ⁽⁸⁸⁾

Historical institutionalism is a model for the behavior of political actors, including the judiciary. ⁽⁸⁹⁾ The basic premise of this model is that institutions, their norms, expectations and historical practices, confine and restrain decision makers. ⁽⁹⁰⁾ In the judicial context, historical institutionalism contends that judges act within a set of internalized constraints such as “a sense of duty or obligation about their responsibilities to the law and the Constitution and by a commitment to act as judges rather than as legislators or executives.” ⁽⁹¹⁾ Thus, courts, and the Supreme Court in particular, are unique among the three political branches, in that they are bound by certain legal practices and are not free to solely pursue their preferred ideological outcomes. ⁽⁹²⁾ To maintain their legitimacy, the courts must at least appear to be bound by the law; this limits the ability of judges to act in a wholly partisan manner. ⁽⁹³⁾ Historical institutionalism does not completely reject the attitudinal premise that political preferences affect judicial decisions, acknowledging that such preferences play a role. ⁽⁹⁴⁾ Rather, this model provides an explanation of the circumstances under which judges must subordinate their ideological preferences in order to serve institutional norms, including respect for the law. ⁽⁹⁵⁾

For example, historical institutionalist scholar Professor Ronald Kahn examined landmark religion cases during the Rehnquist Court and concluded that its justices did not “follow election returns, the policies of the presidents who appointed them, or even personal policy wants … institutional norms, including the following of precedent, or stare decisis; respect for the difference between law and politics; and concerns for institutional legitimacy inform[ed] Court decision-making in important ways.” ⁽⁹⁶⁾ As Kahn explained, if the Supreme Court of that era had followed personal policy preferences, it would have rejected precedents regarding state establishment and free exercise of religion. ⁽⁹⁷⁾ At the time, conservative scholars and politicians sought to replace the Establishment Clause test established in Lemon v. Kurtzman with what is called a coercion test, and which would allow greater state support of religion. ⁽⁹⁸⁾ The Rehnquist Court, however, rejected the coercion test and kept “the central premise of the Lemon test.” ⁽⁹⁹⁾ As Kahn explains, these decisions, which were contrary to conservative ideology, reflected the constraining effect of institutional principles, specifically, the duty to follow established precedents and the normative value of a Court's “autonomy from politics.” ⁽¹⁰⁰⁾

The evidence in support of historical institutionalism is often qualitative, consisting of deep analysis of the context and content of Supreme Court decisions and locating institutional influences at work. ⁽¹⁰¹⁾ Yet the proponents of this approach offer it as an alternative to the ideological models of analysis, ⁽¹⁰²⁾ which are based on empirical studies. ⁽¹⁰³⁾ Given the challenge that these theories pose to the utility of the FJP, explained above, it is important to examine what empirical evidence exists in support of the historical institutionalist claim that law matters. Fortunately, statistical analysis supporting the institutionalist position is available, including recent studies confirming the role of law in decisions.

Mark Richards and Herbert Kritzer provided one of the seminal statistical studies establishing the law's influence on the Supreme Court. ⁽¹⁰⁴⁾ Their study examined the influence of “jurisprudential regimes” which “structure Supreme Court decision making by establishing which case factors are relevant for decision making and/or by setting the level of scrutiny or balancing the justices are to employ … .” ⁽¹⁰⁵⁾ Richards and Kritzer applied statistical tests using logistic regression to examine “all cases from 1953 to 1998 that presented a free press, free expression, or free speech issue.” ⁽¹⁰⁶⁾ Although acknowledging that policy goals influence Supreme Court decision making, their study concludes that the Court “is not simply a small legislature - [l]aw matters in Supreme Court decision making” as well. ⁽¹⁰⁷⁾ Specifically, they found that jurisprudential regimes did structure the justices’ decisions, regardless of ideology. ⁽¹⁰⁸⁾

This study is consistent with Kahn's historical institutional analysis of the survival of the Lemon test in the Rehnquist Court described above. In fact, in a subsequent study, Richards and Kritzer performed a statistical analysis of the impact of Lemon v. Kurtzman on a series of subsequent Establishment Clause decisions. ⁽¹⁰⁹⁾ Their analysis concluded that although Lemon did not directly dictate specific outcomes, and justices did not always follow the decision, the Lemon test “acted as a framework for the decisions in Establishment Clause cases decided over the last 30 years.” ⁽¹¹⁰⁾ Thus, Richards and Kritzer explain, “law does matter” to the Supreme Court by setting the parameters for deciding cases. ⁽¹¹¹⁾

In another example, to test the hypotheses “that justices’ voting behavior is influenced by their desire to reach legally sound decisions,” Stefanie Lindquist and David Klein studied 338 cases in which the Supreme Court granted certiorari to resolve a circuit split. ⁽¹¹²⁾ Their statistical analysis revealed “strong evidence that jurisprudential influences matter for justices’ decisions in [circuit] conflicts cases.” ⁽¹¹³⁾ Specifically, they found that the greater the number of circuits in favor of a position, the more likely justices were to adopt that position. ⁽¹¹⁴⁾ As Lindquist and Klein explained, this indicated a number of possible jurisprudential influences: for example, that with more circuit court opinions there were more chances that at least one court hit upon a persuasive legal argument or the winning position gained more supporting circuit court positions because it had “greater legal plausibility and justices tend to choose the more plausible position.” ⁽¹¹⁵⁾ The study also found that justices were less likely to side with an argument that generated more dissenting and concurring opinions in the circuit court decisions. ⁽¹¹⁶⁾ Again this indicated jurisprudential influences on the Supreme Court: “[d]issenting opinions typically identify faults in the majority's legal analysis, thus undermining its persuasiveness.” ⁽¹¹⁷⁾

This study also established that the more prestigious the circuit court, the more likely the Supreme Court would adopt its position, likely due to the fact that circuit courts are prestigious for their superior legal reasoning. ⁽¹¹⁸⁾ Finally, Lindquist and Klein found that the position taken by the Solicitor General was, under certain circumstances, more likely to be adopted by the Supreme Court, and that this could indeed be due to the expertise in that office of crafting persuasive legal arguments. ⁽¹¹⁹⁾ Thus, overall, based on their empirical study and statistical analysis, Lindquist and Klein conclude that although justices’ personal values affect their decisions, the “results strongly support the view that judges and justices [also] engage in sincere efforts to find solutions that are persuasive according to a commonly held set of criteria.” ⁽¹²⁰⁾

More recent empirical studies bolster the evidence of legal influences on decisions making. For example, Michael Bailey and Forrest Maltzman tested the effects of three legal factors: precedent, deference to Congress, and “the sanctity of the First Amendment's free speech clause,” ⁽¹²¹⁾ in Supreme Court cases from 1951 through 2008. ⁽¹²²⁾ They found “strong evidence that legal principles are influential for the decisions made by most justices.” ⁽¹²³⁾ In a different study, Richard Pacelle, Jr., Brett Curry, and Bryan Marshall performed a statistical analysis of the Supreme Court's economic and civil liberties cases from the 1953–2000 terms to examine the influences of ideology and existing precedents. ⁽¹²⁴⁾ Although the study found that justices’ policy preferences play a significant role, it also found that the “Court pays attention to precedent and seeks to establish consistency in the law….” ⁽¹²⁵⁾ They specifically note the consistency of their findings with Richards and Kritzter's 2002 study on the influence of jurisprudential regimes. ⁽¹²⁶⁾ Thus, empirical studies support the assertion by historical institutionalists that the law acts as a constraining force on judicial decision making.

The first impact of historical institutionalism on the FJP is to offer some validation to the Project's goals. By rejecting the premise that judges only engage in ideological decision making, and giving law at least some role, historical institutionalism justifies the effort to craft legal arguments to persuade the courts, as the FJP does. Indeed, in many ways, the FJP works within the bounds of institutional theory. Specifically, the FJP only works with existing law. ⁽¹²⁷⁾ The Project does not assume a constitution with an Equal Rights Amendment; it does not rely on imaginary statutes; and it does not create new facts that did not exist at the time of the various decisions. ⁽¹²⁸⁾ Instead, all rewritten opinions in the FJP must use the law as it existed at the time and the facts available either in the record or through judicial notice. ⁽¹²⁹⁾ In this manner, the FJP implicitly accepts and works with the historical institutionalist premise that the judiciary as an institution is bound by certain norms such as precedent.

The FJP, however, also has a seemingly contradictory premise. Although each opinion is bound by the law at the time, each opinion is new, changing the precedent it is based on and offering a different type of argument in that case. By rewriting existing precedents, the FJP attempts to show that even within confines of existing law and fact, a different outcome or legal reasoning was, and is, possible. ⁽¹³⁰⁾ These changes in prior cases, create a model for deciding future cases in a similarly reinvented manner. Thus, the FJP ultimately seeks to change the law. ⁽¹³¹⁾ Historical institutionalism's basic premise, that institutional norms such as precedent confine judges, ⁽¹³²⁾ seems to suggest more continuity rather than change. Indeed, the Richards and Kritzer results suggest the stability of the law via jurisprudential regimes. ⁽¹³³⁾ Historical institutionalist works have addressed this issue, however. As described below, historical institutionalism theory offers detailed explanations on how change is possible even within institutional confines. ⁽¹³⁴⁾

According to Kahn, principled bi-directional decision making (PBD) “is the means through which the Court applies polity (political institutional) and rights principles, in light of the lives of citizens as they have lived them … as the complexity and the diversity of the nation's society, economy, and politics increase.” ⁽¹⁴⁰⁾ PBD is principled because it is based on legal doctrines and underlying institutional values; but it is also bi-directional because the Court's internal decision making norms interact with the external social and political world. ⁽¹⁴¹⁾ To put it another way, the legal and institutional principles which the Court is constrained to follow, can only gain meaning through their application to the outside world. ⁽¹⁴²⁾

PBD is a theoretical model that can explain Supreme Court decisions in certain areas such as individual rights; specifically, Kahn asserts that PBD can explain why “implied fundamental rights have been sustained and expanded in a conservative political era.” ⁽¹⁴³⁾ He points to a number of key examples, including Planned Parenthood v. Casey, ⁽¹⁴⁴⁾Lawrence v. Texas, ⁽¹⁴⁵⁾National Federation of Independent Business v. Sebelius, ⁽¹⁴⁶⁾United States v. Windsor, ⁽¹⁴⁷⁾ and Obergefell v. Hodges.^(148)(149) These decisions disappointed conservative activists who had hoped for different outcomes in light of the number of Republican appointments to the Supreme Court. ⁽¹⁵⁰⁾

A number of commentators and scholars explain these liberal outcomes by pointing to the ideology of the justices joining the majority opinions, which in all but Sebelius, consisted of liberal justices plus, in some cases, the long-acknowledged “swing” votes of Justices O’Connor and/or Kennedy. ⁽¹⁵¹⁾ Kahn, however, offers a different, non-ideologically based explanation, a “contextual analysis” that explores the relationship between the Court's decision making process and society. ⁽¹⁵²⁾ Kahn claims the theory of PBD offers superior explanatory utility, asserting that “most social scientists and other legal scholars and experts in constitutional law have failed to explain or predict the expansion of privacy rights and other individual liberties,” in these important decisions. ⁽¹⁵³⁾

For example, according to Kahn, in Casey, PBD forced the Court to look at the external society and acknowledge that the factual underpinnings of Roe, and the general understanding of those facts, had not changed. ⁽¹⁵⁴⁾ In fact, since the Roe decision, women's place in society continued to expand significantly, and “women and their families had grown to rely on the existence of rights of abortion choice.” ⁽¹⁵⁵⁾ In the process of engaging in PBD, the Court considered these external realities in light of internal norms such as the importance of precedent and an apolitical judiciary. ⁽¹⁵⁶⁾ Specifically, had the Court ignored the fact that societal facts still supported the central holding of Roe and overturned that case in whole, the Court would be seen as deciding the issue on “raw policy grounds, or in response to politics.” ⁽¹⁵⁷⁾ This would have undermined the Court's legitimacy as an institution. ⁽¹⁵⁸⁾ In fact, as a result of these institutional forces, the Court not only upheld the central holding of Roe v. Wade, it expanded beyond privacy rights as basis for doing so, recognizing abortion choice as important to women's rights of personhood as well. ⁽¹⁵⁹⁾ Thus, according to Kahn, in the Casey example, PBD acted as a force of both stability and change. ⁽¹⁶⁰⁾ The process of PBD led to continuity in the central holding of Roe with new, reinvigorated legal principles for doing so, namely, a new emphasis on relevance of abortion choice to women's right of personhood, not just privacy. ⁽¹⁶¹⁾

According to Kahn, in Lawrence v. Texas, PBD led to significant legal change expanding gay rights. ⁽¹⁶²⁾ Kahn asserts that, as in Casey, in Lawrence, the Court considered the social factual background, but in this case found the facts, or understanding of those facts, had changed. ⁽¹⁶³⁾ These new social constructions now recognized gay citizens as possessing rights of privacy and personhood that were often threatened by animus. ⁽¹⁶⁴⁾ In the mutual construction process of PBD, these social constructions implicated key internal judicial norms that affected the Court's legitimacy. ⁽¹⁶⁵⁾ For example, Supreme Court decisions since Bowers v. Hardwick offered expanded understanding of the connection between intimate choices and the personal dignity and autonomy central to the liberty protected by the Fourteenth Amendment. ⁽¹⁶⁶⁾ Had the Court refused to apply this legal precedent on liberty to a disfavored minority, it would be contrary to the Court's norms of being apolitical and its institutional role of protector of rights, even in the face of majority animosity. ⁽¹⁶⁷⁾

Kahn summarizes PBD in these two example cases as follows:

The Supreme Court sustains and expands individual rights, even gay rights, because … majority and concurring Justices in Casey and Lawrence strongly reject political contestation and majoritarian opinion as reasons on which to decide implied fundamental rights cases. When the Casey and Lawrence Courts engaged in PBD, they considered whether the rights at issue in these cases, privacy and personhood, are still important and expanding and whether citizens have accepted these rights in their lives. ⁽¹⁶⁸⁾

As the above examples show, PBD leads to changes in the law because PBD considers changes in society and how the law must evolve to address them. ⁽¹⁶⁹⁾ Kahn makes clear, however, that new social facts alone do not cause legal change; rather, advocates must use “legal grammar” to tie new social facts to existing institutional norms such as precedent or legal values of equal protection or liberty. ⁽¹⁷⁰⁾ Kahn defines this conversion of raw fact into legally significant fact, “social construction,” ⁽¹⁷¹⁾ and it is a central aspect of PBD described above. Kahn's definition of social construction is “both empirical and normative”—empirical because it draws on the real lives of citizens and normative because it entails application of principles of justice, liberty, and equality to these social facts. ⁽¹⁷²⁾ As described above, the process of social construction played a role in the evolution of the law of abortion rights in Casey and the law of gay rights in Lawrence.

Social constructions are woven within lines of Supreme Court cases and can influence future decisions as much as legal principles. ⁽¹⁷³⁾ For example, after Reed v. Reed and progressing through such cases as Frontiero v. Richardson, new social facts on women's expanding role in society became a social construction relevant to the principle of equal protection. ⁽¹⁷⁴⁾ As Kahn described it, “[w]ith each new case, social constructions would further illuminate what gender discrimination means, and thus what constituted an equal protection violation.” ⁽¹⁷⁵⁾ Kahn identifies other examples of social construction, such as the effect of psychological coercion on children in Lee v. Weisman or the reality of domestic abuse and power disparity between women and their spouses recognized in Casey. ⁽¹⁷⁶⁾ Kahn's recent work, however, cautions that the social construction must be robust in order to have precedential effect. ⁽¹⁷⁷⁾ Social construction will not create effective legal principles where social facts are not well connected to precedent, or the construction creates an unworkable rule. ⁽¹⁷⁸⁾

Kahn continues to rely on PBD to explain the monumental decisions in Sebelius, Windsor, and Obergefell, again rejecting a purely ideological explanation for the Justices’ individual decisions on the case. ⁽¹⁷⁹⁾ For example, Kahn describes Chief Justice Roberts’ decision in Sebelius as bringing external economic realities into an analysis of principles of federalism and separation of powers and of prior cases on the Commerce and Taxing Clauses. ⁽¹⁸⁰⁾ According to Kahn, Justice Roberts’ refusal to find authority for the ACA under the Commerce Clause stems from “his comparison of the failure of citizens to purchase health insurance with the failure of farmers to purchase wheat in Wickard and the failure of persons to grow and use marijuana in Raich.” ⁽¹⁸¹⁾ This connection between external facts and internal norms (precedent) matches Kahn's definition of PBD, principled based decision making, not ideology based. Kahn similarly describes Justice Ginsberg's dissent, not as a justification for her preferred ideological outcome, but rather as bi-directional decision making, specifically, a critique of the Roberts’ opinion's economic construction. ⁽¹⁸²⁾ According to Kahn, this dispute among the justices over how to incorporate economic realities into law reflects the centrality of the construction process to decision making, a key premise of his PBD theory in contrast to ideological explanations. ⁽¹⁸³⁾

Kahn also offers this alternative explanation for the outcome in subsequent gay rights cases. In Windsor, instead of turning solely on the political viewpoints of the justices with Kennedy as the key swing vote, Kahn sees principled (precedent and rights based) bi-directional (external world affecting those precedents) decision making. ⁽¹⁸⁴⁾ Kahn describes how the majority opinion brought in the outside world, the lived lives of same sex families, ⁽¹⁸⁵⁾ to existing precedent on marriage and gay rights. ⁽¹⁸⁶⁾ According to Khan, Kennedy looked outside of the bounds of the Constitution to consider the burdens DOMA placed on the family life of same sex couples and families, and that this reality demonstrated why DOMA was a denial of equal protection and liberty. ⁽¹⁸⁷⁾ With respect to Obergefell, again, Kahn finds that ideology-based theories of judicial decision making do not fully explain this case's dramatic outcome. ⁽¹⁸⁸⁾ Kahn notes that Obergefell is the logical next step in the social construction process started by Lawrence and continuing through other cases such as Windsor. ⁽¹⁸⁹⁾ In all of these cases, the lived lives of gay families are connected to legal principles of liberty and equal protection; a process of social construction which leads to the liberal outcome. ⁽¹⁹⁰⁾

Thus, the historical institutionalist theory of PBD offers a method for persuading justices. Through social construction, advocates can tie changes in the lives of citizens to existing legal principles to show how the law must evolve and change as well. This theory offers an explanation for a number of cases with progressive outcomes. The FJP would like to do the same thing: convince judges to change the law towards a more feminist legal reasoning and case decisions. ⁽¹⁹¹⁾ If the FJP uses the institutional change mechanism of PBD, perhaps the Project can succeed in its goals and influence even the current, conservative judiciary. The following section explores this question.

Although the FJP precedes the popularization of #MeToo, many FJP authors draw on the broader understanding of sexual violence and harassment that has since been more widely recognized as a result of the #MeToo movement ⁽¹⁹⁵⁾ and the related organization TimesUp. ⁽¹⁹⁶⁾ The #MeToo movement has received significant media coverage and started a new national conversation about the sexual abuse of women by men with power over their careers. ⁽¹⁹⁷⁾ Women under the #MeToo umbrella have come forward to report real life instances of mistreatment and crime, with many high profile perpetrators being held to account. ⁽¹⁹⁸⁾ A number of the opinions in the FJP are fortuitously drawing on themes that the #MeToo movement has been broadcasting widely. ⁽¹⁹⁹⁾ Moreover, the authors not only identify these new social facts, they specifically tie them to legal precedents and values using the “legal grammar” a judicial opinion requires. ⁽²⁰⁰⁾ This full, social construction, provides the dual force of new fact and legal argument that Kahn describes as persuasive. ⁽²⁰¹⁾

The rewritten opinion of Dothard v. Rawlinson, ⁽²⁰²⁾ is an example of this social construction. The original Supreme Court opinion held that the height and weight requirements imposed by Alabama's correctional department violated the prohibition of sex discrimination in employment because it disparately excluded women and the state failed to show the requirements were necessary for the position. ⁽²⁰³⁾ At the same time, the Court also held that sex was a bona fide occupational qualification (“BFOQ”) for guarding a men's prison due to the risk of sexual assault, and, as a result, women could be completely excluded from that job. ⁽²⁰⁴⁾ In the rewritten feminist judgment, concurring and dissenting in part, Professor Maria Ontiveros critiques this BFOQ argument for its stereotyping of women as the cause of sexual assault, ⁽²⁰⁵⁾ echoing a theme of #MeToo. ⁽²⁰⁶⁾ As Ontiveros explains in her dissenting part, the majority accepted the assertion by the state that sexual assaults against female guards are inevitable; ignoring evidence that the prison system made a series of choices in the structure of the prison that created this hazard and failed to take available steps, used in other systems, to eliminate it. ⁽²⁰⁷⁾ As Ontiveros explains, “the majority's line of reasoning reinforces the stereotypes that women are, first and foremost, sexual objects whose very presence cause sexual assault [relying] on the unstated premise that the stereotype is fixed, normal and natural, and nothing can be done to change it.” ⁽²⁰⁸⁾ Ontiveros then takes the next step in social construction by tying this social understanding of assault to the law. Specifically, she notes how all of these assumptions are stereotypes about the nature and roles of women, and that precedent explicitly prohibits basing a BFOQ defense on stereotypes. ⁽²⁰⁹⁾ She also draws the logical corollary that BFOQ is not available when the employer itself creates the conditions that make a position inhospitable to a particular gender. ⁽²¹⁰⁾

The rewritten opinion in Meritor Saving Bank also emphasizes a #MeToo principle, that there are many reasons why victims of harassment cannot immediately report the misconduct or find help, ⁽²¹¹⁾ and adds another feature of new social facts, the intersectional impact of race and gender. ⁽²¹²⁾ The original Meritor opinion established the first definitive definition of sexual harassment as a form of sex discrimination under Title VII, requiring plaintiffs to show severe or pervasive misconduct based on sex that was both objectively and subjectively offensive. ⁽²¹³⁾ In rewriting Meritor, Onwuachi-Willig took the opportunity to offer a new foundational definition that removed the problematic aspects of subjective offense (unwelcomeness), objective offense assessed by a “neutral” standard, and the severe and pervasive language which has proven to be a significant roadblock to plaintiffs’ recovery. ⁽²¹⁴⁾ This rejection of the current legal standard for sexual harassment resonates with the #MeToo and TimesUp efforts to address harassment, including the unduly demanding legal standards as well as other barriers. ⁽²¹⁵⁾ In the rewritten opinion, “the gravamen” of a sexual harassment claim is now “whether the challenged conduct unreasonably interfered with the plaintiff's work environment or performance, create a hostile or intimidating environment, or worked to preserve patterns of sex segregation in employment.” ⁽²¹⁶⁾ Professor Onwuachi-Willig, removes the unwelcome requirement altogether, because focusing on whether the harassment was welcome ignores the power differentials that make it less likely that some women, given their economic or career vulnerabilities, are able to resist or complain, the accepted evidence of unwelcomeness. ⁽²¹⁷⁾

In her discussion, Onwuachi-Willig also emphasized the particular vulnerability of black women, citing studies that showed their claims of sexual harm were less likely to believed and the stereotypes of black women as sexually immoral that contribute to this. ⁽²¹⁸⁾ To legally capture this social reality, she created a different standard for assessing whether there is a hostile work environment, asking how the reasonable person with the complainant's identity characteristics, here a reasonable black woman, would perceive events instead of the original reasonable person standard. ⁽²¹⁹⁾ Onwuachi-Willig moves beyond the hashtag MeToo movement in this intersectional analysis, echoing perhaps more of the original #MeToo creator's message. ⁽²²⁰⁾ Overall, she ties a broader understanding of the real life experiences of women, and black women in particular, into the legal definitions of harassment.

Other rewritten opinions reflect the increased social recognition of the nature, extent, and implications of sexual violence and harassment. In the rewritten Gebser v. Lago Vista, ⁽²²¹⁾ for example, Professor Ann Bartow crafted a dissent rejecting the original opinion's characterization of sex between a thirteen (to fifteen) year old and her teacher as a “relationship,” correctly identifying this as rape due to the student's age and lack of capacity to consent. ⁽²²²⁾ Bartow further explores the social facts of how difficult it is for a minor to report sexual misconduct by a teacher with authority over their grades and courses. ⁽²²³⁾ Bartow's contextualization for a minor victim resonates with Tarana Burke's original MeToo and its empathetic focus on younger victims of sexual violence; although Bartow's case lacks the intersectional perspective Burke also emphasizes. ⁽²²⁴⁾ Bartow then ties this reality to the legal standard, again rejecting the original majority opinion and its requirement that a school have actual notice and fail to act before it is liable for a teacher's harassment of a student. ⁽²²⁵⁾ Instead, Bartow offers a standard of liability based on agency law, that “a school district is liable under Title IX if a teacher's sexual harassment was ‘facilitated either expressly or implicitly, by the teacher's actual or apparent authority as an employee of the school.’” ⁽²²⁶⁾ This rewritten opinion also echoes some of the messages of the #MeToo and TimesUp movements more generally—namely the role of power disparity in facilitating sexual abuse, ⁽²²⁷⁾ and the need for more effective, systemic solutions. ⁽²²⁸⁾

Other examples include the rewritten opinions of Town of Castle Rock v. Gonzales⁽²²⁹⁾ and Oncale v. Sundowner Offshore Services, Inc.⁽²³⁰⁾ In Town of Castle Rock, the Supreme Court originally held that a victim of domestic violence had no federal constitutional right to the enforcement of a civil restraining order against her husband, despite a Colorado statute mandating such enforcement. ⁽²³¹⁾ In the rewritten majority opinion, Professor Maria Isabel Medina comes to the opposite conclusion, finding a property interest in such enforcement that is protected by the Due Process Clause. ⁽²³²⁾ Medina's opinion provided detailed social facts highlighting the pervasiveness of domestic violence and the history of police under-enforcement of protective orders based on long standing stereotypes about “primacy of male spouses as heads of households” and “views of women as naturally submissive, indecisive, and prone to complaint, but likely to retract allegations of domestic violence.” ⁽²³³⁾ Medina reasoned that the Colorado legislature sought specifically to counteract those problems by requiring enforcement of domestic violence protective orders. ⁽²³⁴⁾ She engaged in social construction by tying these concepts to existing precedent on property rights. ⁽²³⁵⁾ She reasoned that the Colorado statute created a bundle of rights, and that the Court had found other analogous state benefits to be protected by Due Process. ⁽²³⁶⁾ Although not the main focus of the #MeToo movement, which in its current iteration most often concerns workplace abuse, some of the movement's themes have been extended to domestic violence. ⁽²³⁷⁾ Indeed, as Professor Jane Stoever explains, “[t]he recent #MeToo movement is relevant to societal and legal responses to gender-based violence … [and] reveals the persistent societal reluctance to believe abuse survivors and offer real remedies.” ⁽²³⁸⁾ Thus, Medina's rewritten opinion is also engaged in social construction on issues of increasing social salience.

In the rewritten Oncale decision, Professor Ann McGinley continues the process of social construction identified by Kahn, and extends Title VII to prohibit discrimination on the basis of sexual orientation. ⁽²³⁹⁾ The original Oncale decision found that harassment between members of the same sex would also violate Title VII's prohibition of discrimination on the basis of sex; but did not address sexual orientation discrimination. ⁽²⁴⁰⁾ McGinley's rewritten per curium opinion has the same outcome, but extends the legal reasoning to specifically find that harassment and discrimination based on sexual orientation violates the statute as well. ⁽²⁴¹⁾ McGinley reasons that the existing legal basis for finding that discrimination based on sex includes discrimination for failure to meet the social expectations for gender, women who are insufficiently feminine or men who are insufficiently masculine. ⁽²⁴²⁾ She then engages in social construction by extending this concept to animosity toward sexual orientation, explaining how this too is inextricably connected to stereotypes about the “proper” behavior of men and women. ⁽²⁴³⁾ Specifically, drawing on masculinities theory she cites research that it is virtually impossible to distinguish between animosity towards a man's failure to meet expectations of masculinity and animosity toward homosexuality. ⁽²⁴⁴⁾ She therefore concludes that a victim of same sex harassment may show the mistreatment was because of sex and thus actionable under Title VII by showing the harasser was motivated by the victim's failure to “adhere to masculine (or feminine) stereotypes including the real or perceived sexual orientation of the victim.” ⁽²⁴⁵⁾ Although not as explicitly tied to the #MeToo movement, McGinley's analysis does tie into an increasing social understanding of the harm of toxic masculinity, which has been part of the #MeToo discussion, and is now so prevalent as to appear in razor commercials and medical recommendations. ⁽²⁴⁶⁾ Thus, in a number of the FJP's rewritten Supreme Court decisions, we see opinion authors tying increasingly salient social facts to legal principles, which is the type of argument Kahn identifies as potentially persuasive.

Kahn's description of social construction, the way evolving social norms can be incorporated into legal rules and thus change the law, is echoed in a number of rewritten tax opinions of the FJP as well. A number of authors offer alternative legal standards based on modern feminist theory and more complete and compassionate factual backgrounds. For example, as described below, three of these opinions offer a roadmap for courts to consider new understandings of LGBTQ rights, life, and dignity, again echoing a method of social construction Kahn found to be effective in creating progressive legal change, even in a conservative court.

In the rewritten opinion in Magdalin v. Commissioner, Professor Jennifer Bird-Pollan challenges the U.S. Tax Court's refusal to grant a medical deduction to a fertile gay man who used reproductive technology in order to have biologically related children. ⁽²⁴⁷⁾ The original opinion refused the deduction on the basis that the taxpayer did not suffer from a disease or defect requiring the fertility treatments. ⁽²⁴⁸⁾ At issue was the definition of medical care, which is deductible, under §213 of the Tax Code. ⁽²⁴⁹⁾ Unlike the original opinion which focused on §213's language defining medical care as treatment of disease, ⁽²⁵⁰⁾ Bird-Pollan emphasized the second part of §213's definition, whether the amounts paid “for the purpose of affecting any structure or function of the body.” ⁽²⁵¹⁾ The rewritten opinion found that reproduction is a type of human functioning and thus reproductive treatments are covered by §213's second part, regardless of the presence or lack of a medical disease or defect. ⁽²⁵²⁾ This legal argument is presented in the context of important social facts about the reality of gay life and families, echoing the process Kahn identified in the Lawrence, Windsor, and Obergefell decisions. ⁽²⁵³⁾ As Bird-Pollan explains, although some heterosexual couples require assisted reproductive technology due to medical conditions, “a large category of people … by the very nature of their identity, will also require IVF in order to facilitate reproduction.” ⁽²⁵⁴⁾ The original opinion's conclusion that a fertile gay man could not deduct IVF expenses comes with the “unstated implication” that heterosexual intercourse was the proper way to have a child. ⁽²⁵⁵⁾ As Bird-Pollan's opinion explains, allowing a deduction ART for heterosexual couples but not fertile gay prospective parents “raise specters of discrimination on the part of the government” and injects non-determinative facts, namely, sexual orientation, into a tax deduction issue. ⁽²⁵⁶⁾

The rewritten opinion in O’Donnabhaim v. Commissioner similarly uses a broader understanding of the dignity of transgender people to construct the law on tax deductibility of gender confirmation surgery. ⁽²⁵⁷⁾ In the original opinion, the Tax Court found that the taxpayer could deduct a significant portion, but not all, of the surgery and related treatment as a medical expense. ⁽²⁵⁸⁾ The court's conclusion, however, was based on a finding that the taxpayer suffered from a disease. ⁽²⁵⁹⁾ Professor David Cruz's rewritten opinion avoids the stigmatizing disease focus and incorporates a new social acceptance of the transgendered, by finding medical deductibility elsewhere. ⁽²⁶⁰⁾ Indeed, his opinion specifically explains the harms of treating transgenderism as a kind of illness. ⁽²⁶¹⁾ The new opinion therefore establishes that gender difference affects the structure and function of the body and is therefore deductible under the second part of §213. ⁽²⁶²⁾ In this manner Cruz analogizes gender confirmation surgery to vasectomies or abortions that do not treat a disease but that are nonetheless deductible as medical expenses. ⁽²⁶³⁾ With the acknowledged cautions against stigmatizing the transgendered by undue emphasis on “disease”, Cruz's opinion also presents the reasoning on why gender reassignment surgery and related expenses also meet the standard for treatment under the first portion of §213. ⁽²⁶⁴⁾ He does so as a Tax Court opinion author, recognizing that the IRS might appeal the decision and that in later analysis, disease may be the taxpayer's only winning argument. ⁽²⁶⁵⁾ He does so in light of the “benefits that the (Gender Identity Disorder) diagnosis has brought, especially to trans people of limited economic means” and ‘[i]n the interest of doing justice to the real human person before us.” ⁽²⁶⁶⁾ This theme of dignity is similar to the dignity concerns raised in the Lawrence, Windsor, and Obergefell decisions, and Kahn identifies these themes as part of the PBD process which led to the progressive decisions. ⁽²⁶⁷⁾

Finally, in the rewritten opinion in United States v. Windsor, Professor Ruthann Robson invigorates even this progressive decision with newer and different understandings of society. ⁽²⁶⁸⁾ Her rewritten opinion has the same outcome as the original, but offers a legal basis that more robustly prohibits discrimination on the basis of sexual orientation and recognizes the wide variety of family structures in current society. ⁽²⁶⁹⁾ The original opinion reasoned that in the Defense of Marriage Act (DOMA), the federal government was treating some state sanctioned marriages, same sex, differently from others, in a manner that violated due process rights and equal protection under the constitution. ⁽²⁷⁰⁾ The original opinion did not specifically call sexual orientation a suspect class nor designate a level scrutiny for it. ⁽²⁷¹⁾ The rewritten opinion, in contrast, does not find any due process violation, and instead treats sexual orientation as a suspect classification subject to intermediate scrutiny under the equal protection clause. ⁽²⁷²⁾ Now six years after the original Windsor, it is possible that Robson's rewritten opinion taps a current social construction that supports protected class status for sexual orientation. ⁽²⁷³⁾

The rewritten opinion also reflects a critique of the original Windsor opinion, that by basing the marriage rights on due process, it unduly glorified the status of marriage in a society of increasing variety of family structure. ⁽²⁷⁴⁾ Instead, the focus on equal protection turns the focus toward harm of sexual orientation discrimination. ⁽²⁷⁵⁾ Thus, the rewritten opinion avoids discussion of the harm to children which the original opinion mentioned frequently, despite the fact that the lesbian family which brought the suit had no children. ⁽²⁷⁶⁾ Recognizing the new social reality of increasing variety in family structure, Robson removes the emphasis on traditional marriage and procreative purpose, to avoid “elevating a biological component to parenting that denigrates every adoptive or nonbiological parent, whether male or female.” ⁽²⁷⁷⁾ Although taking social construction beyond the issue of sexual orientation in the original Windsor, to include non-marital families in her rewrite, Robson is still using the PBD method to emphasize the legal importance of a broad social reality.

Overall, in each of these opinions, social facts infuse the analysis, guiding the rewritten opinion authors to new legal standards and alternative reasoning. Significantly, the reasoning in these opinions in not fictional; rather, it also draws on precedents, statutes, and regulations, the proper legal grammar for a court. ⁽²⁷⁸⁾ In this manner, the FJP opinions are engaging in social construction, the key aspect of PBD, a process that allows changes in social understandings to potentially change the law. ⁽²⁷⁹⁾ By explicitly tying broader social acceptance and understanding of citizens’ lived lives to existing legal norms, the FJP follows the blueprint for legal change described by Professor Kahn. ⁽²⁸⁰⁾

A court will engage in PDB when it believes that adapting to social change is necessary to sustain legitimacy. ⁽²⁸⁴⁾ Originalists, however, believe the opposite, that judicial expansion of rights beyond those historically recognized is unprincipled and undermines respect for the courts. ⁽²⁸⁵⁾ As Kahn explains, originalists such as Scalia, “refus[e] to accept PBD and all rights based on that process, if that process moves beyond intentions derived from founding periods. Thus, Roe, Casey, Romer, and Lawrence are all illegitimate claims of “Constitutional” law.” ⁽²⁸⁶⁾ According to Kahn, the real fissure on the Supreme Court, and to some degree politics more broadly, is not conservative versus liberal, but rather, originalist versus non-originalist. ⁽²⁸⁷⁾ This debate is not limited to the controversial decisions on gay rights or abortion, but extends to the nature of judicial decision-making and the role of the judiciary in government. ⁽²⁸⁸⁾

A number of Supreme Court decisions reflect the limitations of PBD to create progressive outcomes when a significant portion of the Court is originalist. ⁽²⁸⁹⁾ As just one example, the Supreme Court's decision to allow President Trump's ban on transgendered people serving in the military ⁽²⁹⁰⁾ stands in direct contrast to the rewritten opinion in O’Donnabhaim v. Commissioner⁽²⁹¹⁾. Moreover, the recent appointment of Justices Kavanaugh and Gorsuch seems to have solidified an originalist bloc on the Court. ⁽²⁹²⁾ Thus, the originalists’ objection to PBD, combined with their status on the Supreme Court, does threaten to undermine the efficacy of social construction-based persuasion.

That said, perhaps Chief Justice Roberts’ apparent new role as the swing vote leaves the door open to PDB and some version of social fact-based argument. ⁽²⁹³⁾ Indeed, his apparent concern for the Court's legitimacy ⁽²⁹⁴⁾ is, according to historical institutionalists, one of the foundational motivations that can drive judicial decision making away from ideology. ⁽²⁹⁵⁾ In addition to Roberts’ potentially moderating path, as noted above, there are a number of empirical studies showing that law can still play at least some role in Supreme Court decision making even with ideological and strategic voting. ⁽²⁹⁶⁾ Indeed, historical examples provide some basis for optimism. In an in-depth, comparative case-study of death penalty and abortion cases before the Supreme Court from 1972 through 1989, which included the Reagan/Bush Court, political science scholars Lynn Epstein and Joseph Kobylka examined the cause of legal change. ⁽²⁹⁷⁾ Their study identified a myriad of factors influencing the Court's decisions, including changes in Court personnel, interest group mobilization and political context. ⁽²⁹⁸⁾ Their study, however, also concluded that the legal arguments by the attorneys and within the amicus briefs had an influence as well, and that ultimately, “legal arguments grounded in law matter, and they matter dearly … arguments seem to influence most clearly the content and direction of the legal change that results.” ⁽²⁹⁹⁾

Thus, overall, the prospects for the FJP to be persuasive are mixed, particularly with respect to the FJP's rewritten Supreme Court opinions. The historical institutionalists present PBD, a compelling theory for the efficacy of persuasive arguments such as those offered by the FJP, and some empirical and case studies support this premise. Given the resistance of originalists, however, this branch of political science cannot offer a complete defense of the Project's utility.

A number of opinions within the FJP are subject to an even stronger critique because they engage in displacement, a more radical method of legal change than PBD. In PBD, existing legal principles are considered and applied in light of new social facts, a mutually constructive process that gives current legal rules an important role. ⁽³⁰⁰⁾ In contrast, sometimes groups seek to completely substitute one set of rules for another, a process historical institutionalists term displacement. ⁽³⁰¹⁾ Displacement is a more difficult type of change for out of power groups to achieve. ⁽³⁰²⁾ As described below, some of the rewritten FJP opinions concerning disparate impact are attempting this displacement, and in so doing, fail to offer strongly persuasive arguments for future use.

Disparate impact is a theory of discrimination that does not involve intentional conduct, but rather finds unintentional, or covert, acts create unequal results for protected groups. ⁽³⁰³⁾ As described below, in a number of FJP rewritten opinions, the authors pursue equality on disparate impact theories, challenging neutral laws that disproportionately harm women. At first glance, the FJP opinions discussing disparate impact could seem to be effective under the concept of PBD. Specifically, many disparate impact arguments offered by the FJP reference the phenomenon of implicit bias—a term for subconscious bias that results in unequal outcomes. ⁽³⁰⁴⁾ Implicit bias is gaining increased social recognition as a non-intentional, but nonetheless real, source of discrimination. ⁽³⁰⁵⁾ As Kahn makes clear, however, the mere presence of new social facts does not lead to change, but rather it is the ability to tie those facts to specific existing legal concepts that influences judges. ⁽³⁰⁶⁾ Thus, although there are advances in understanding implicit bias, there is strong legal precedent requiring intentional discrimination that makes the adoption of these disparate impact theories much more difficult. ⁽³⁰⁷⁾ Thus, according to historical institutionalists, the adoption of the FJP's disparate impact theories would not be the evolutionary social construction found in PDB, but rather, would require wholesale substitution of existing legal rules, a form of displacement which is not easily achieved. ⁽³⁰⁸⁾

For example, in the rewritten Griswold v. Connecticut decision, Professor Laura Rosenbury came to the same outcome as the original opinion, finding Connecticut statutes criminalizing birth control to be unconstitutional, but offered a different legal basis. ⁽³⁰⁹⁾ Instead of a right to privacy, Rosenbury invalidates the statutes based on Due Process and Equal Protection. ⁽³¹⁰⁾ Specifically, Rosenbury takes advantage of the historically situated posture of each rewrite. According to the premise of the FJP, opinion authors are bound by existing law at the time, but not future decisions. ⁽³¹¹⁾ Thus, Rosenbury's rewrite is before the Washington v. Davis case which held that only intentional discrimination creates a constitutional violation. ⁽³¹²⁾ Rosenbury, therefore ignores Washington v. Davis and finds disparate impact violates the Equal Protection clause, as if to start an alternative timeline of the law. ⁽³¹³⁾ This outcome might be historically possible at the time of the decision; however, arguments imagining the absence of a case that does, in fact, exist are less useful for the FJP's goal to affect future decisions. This feminist rewrite in Griswold offers the type of displacement that, according to political scientists, is hard for out of power groups to win. ⁽³¹⁴⁾

In the rewritten opinions that post-date Washington v. Davis, the authors do not try to reverse that precedent, as doing so would violate the premise of the FJP. ⁽³¹⁵⁾ In one of the post-Washington cases, Price Waterhouse v. Hopkins, however, the opinion author worked with disparate impact in another context that was also contrary to existing precedent. ⁽³¹⁶⁾ In the rewritten Price Waterhouse v. Hopkins opinion, Professor Martha Chamallas writes a concurring opinion to emphasize the role of implicit bias in employment decisions, ⁽³¹⁷⁾ and urges courts to play close attention to expert testimony ⁽³¹⁸⁾. “Chamallas rejects the focus on conscious intent as the touchstone of ‘real’ discrimination … [and] requires courts to look at the totality of a corporate culture.” ⁽³¹⁹⁾ As with the Griswold rewrite as described above, the rewritten Price Waterhouse decision takes advantage of its historical posture. The Supreme Court generally rejected these ideas on implicit bias and reliance on expert testimony in the Wal-Mart v. Dukes decision. ⁽³²⁰⁾ Although there are certainly many intellectual uses for envisioning alternative lines of jurisprudence, by contradicting later firm precedent, this aspect of the Price Waterhouse rewrite is less useful for future persuasive arguments. Again, political science would characterize this as a displacement which is more difficult to instill. ⁽³²¹⁾

Some of the Tax FJP opinions also attempt to establish disparate impact as a viable legal theory in contravention of existing precedent. For example, in the rewritten Bob Jones University v. United States, ⁽³²²⁾ Dean David Brennan's concurring opinion comes to the same outcome as the original opinion, ⁽³²³⁾ specifically, that Bob Jones University is not entitled to §501(c)(3) status as a charitable organization because its admissions policies violate public policy, ⁽³²⁴⁾ but offers different reasoning. The original opinion based this outcome on the fact that the University's admissions policies were, intentionally, racially discriminatory. ⁽³²⁵⁾ Brennan finds the policies also violate public policy because they have a disparate impact on women. ⁽³²⁶⁾ To find that the admissions policy violated public policy, both the original opinion and the rewrite reviewed legislative, executive, and judicial actions concerning discrimination to find evidence of public policy. ⁽³²⁷⁾ Brennan's argument that gendered disparate impact as such a violation is contrary to Washington v. Davis, and indeed (as the commentary on his opinion acknowledges) to other cases indicating a mixed record on even intentional gender discrimination at that time. ⁽³²⁸⁾ Thus, while perhaps not requiring direct displacement of Washington v. Davis, the rewritten opinion bases its argument on disparate impact as “public policy,” a difficult premise to support.

The rewritten opinion in Estate of Clack v. Commissioner, similarly offers a disparate impact theory as the basis for its opinion, acknowledging its likely lack of support by writing as a dissent. ⁽³²⁹⁾ In the original opinion, the Tax Court found that a marital deduction was still possible even where an executor could divest a surviving spouse of a property interest through qualified terminable interest property (QTIP) elections. ⁽³³⁰⁾ In the rewritten opinion, Professor Wendy Gerzog challenges this holding for its reliance on gender stereotypes and disparate impact on women. ⁽³³¹⁾ As the commentary on the opinion acknowledges, it is embracing a disparate impact theory rejected by Washington v. Davis, and indeed a number of other tax related opinions. ⁽³³²⁾ Nonetheless, the commentary argues for “the expressive force of dissents,” asserting that “[p]erhaps Gerzog's opinion could have set the stage for a series of dissents over time point out the structural sexism, racism, and heterosexism of the Code [which] could in turn have influenced public opinion.” ⁽³³³⁾ Again, although useful for theoretical and intellectual pursuits, this alternative history of law offers less utility for crafting arguments to influence the current judiciary.

Overall, the above analysis identifies a category of FJP opinions engaged in displacement, which offer less useful arguments for persuasion, and a category of FJP decisions using PBD, which offers useful arguments for persuasion but only to non-originalists jurists. This section explores a third category of re-written FJP opinions that uses a perhaps more moderate approach, what has been termed “ideational salience amplification” (ISA). ⁽³³⁴⁾ ISA is a method of persuasion available to those without dominant power who wish to push judicial outcomes in a different direction. ⁽³³⁵⁾ ISA is available because, typically, those within power shape their decisions based on a wide range of ideas. ⁽³³⁶⁾ With ISA, “[r]ather than having to replace one set of established ideas with an alternative paradigm, emergent actors may simply amplify the salience of certain ideas that already exist within the judicial field.” ⁽³³⁷⁾ For example, conservative legal advocates used the norm of color blindness, first developed to aid the historically disadvantaged, to challenge affirmative action. ⁽³³⁸⁾ ISA takes a more legalistic approach than PBD. In PBD, existing precedent evolves to apply to new social facts; these facts play a crucial role in the argument. ⁽³³⁹⁾ With ISA, an existing legal principle receives greater emphasis, and this legal argument drives the outcome. ⁽³⁴⁰⁾

A number of FJP opinions tap into the process of ISA. For example, in the Tax FJP, Professor Mary Louise Fellows re-wrote Welch v. Halvering⁽³⁴¹⁾ and revived the “necessary” prong of the existing ordinary and necessary business deduction test. ⁽³⁴²⁾ In the original opinion, the Supreme Court did not emphasize the necessary factor and deferred to the taxpayer's view on this aspect. ⁽³⁴³⁾ Professor Fellows removed this deference, and provided a more critical path for reviewing purportedly necessary deductions. ⁽³⁴⁴⁾ By amplifying the salience of this factor, Professor Fellows “avoid[ed] the original's reflexive abdication of power to the already powerful,” and critiques the acceptance of public related expenses as necessary and business related while relegating others to “women's” private sphere. ⁽³⁴⁵⁾

In the rewritten opinion of Cheshire v. Commissioner, Professor Danshera Cords, as a Tax Court judge, comes to the opposite conclusion as the original opinion on the crucial issue of what level of knowledge removes the innocent spouse defense to joint liability on a jointly filed married tax return. ⁽³⁴⁶⁾ The original opinion held that a married taxpayer was not entitled to innocent spouse relief if the spouse knew of the transactions giving rise to the income underlying the tax liability. ⁽³⁴⁷⁾ In contrast, Cords finds innocent spouse relief is only removed where the spouse has knowledge that the item is in fact taxable. ⁽³⁴⁸⁾ Cords’ interpretation relies on extensive analysis of the legislative history of the relevant innocent spouse provision. ⁽³⁴⁹⁾ As a feminist opinion, Cords discusses the gendered context of this tax law, detailing the traditional gender roles women assume within marriage and how that places them at particular risk from joint liability. ⁽³⁵⁰⁾ Cords’ reasoning however, is not dependent upon finding the law has a disparate impact on women, and instead rests on giving greater ideational salience to the legislative history supporting her legal test. ⁽³⁵¹⁾

In some FJP opinions, the authors use ISA on the concept of stereotyping as a form of gender discrimination. ⁽³⁵²⁾ Courts, including the Supreme Court, have long recognized a connection between stereotyping and discrimination. ⁽³⁵³⁾ This relatively non-controversial and accepted principle is therefore ripe for salience amplification. For example, in the rewritten opinion of Rostker v. Goldberg, ⁽³⁵⁴⁾ Professor David Cohen reverses the original opinion that had upheld the male only registration for the military draft. ⁽³⁵⁵⁾ Cohen's opinion concludes that the draft must apply to all, regardless of gender, refusing to adopt the original opinion's strong deference to the military. ⁽³⁵⁶⁾ Instead, Cohen details and emphasizes the extensive gender stereotypes behind the male-only rule and ties them into the anti-stereotyping principles the Court in Reed v. Reed, ⁽³⁵⁷⁾Frontiero v. Richardson, ⁽³⁵⁸⁾ and Craig v. Boren.⁽³⁵⁹⁾

As these examples show, one of the techniques of the FJP is to persuade using existing legal concepts to different effect. This ideational salience amplification is quickly recognized by legal scholars as a classic form of argument; but it also has the support of political science scholars who have studied theories of idea-based change. This field recognizes that an out-of-power group that seeks to replace ideas altogether faces a more difficult path than one that takes the more indirect path of enhancing the prominence of existing norms and values. ⁽³⁶⁰⁾ Thus, to the likely extent that originalist judges will not be receptive to PBD and the displacement cases are contrary to existing precedent, ISA offers an alternative path of persuasion.