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Article

Abstract

Feminist Judgments’s focus on jurists alone is not unusual. My own discipline has devoted a great deal of study to understanding why and how the justices of the U.S. Supreme Court make the decisions they do. Some of the scholarship has even examined whether women judges might operate differently than their male counterparts, though the findings have been mixed at best. The emphasis, moreover, is understandable and laudable, as it is jurists who have the final say on the content of law.

Emphasizing judicial behavior, however, unfortunately overlooks the fundamental passivity of the courts. As much as they might wish to do so, jurists cannot reach out into the world of potential legal disputes and select certain topics for resolution; they must wait for a litigant to bring the dispute to them. Indeed, were it not for the litigants bringing cases into the legal system in the first place, there would be no vehicle through which jurists make the law. The jurist may be the law’s sculptor, but the “raw material” with which he or she works is provided by a litigant. Moreover, if that litigant’s behavior has been shaped by gender, then the judicial opinion, whoever has written it, has been as well. To put it simply, if gender is influencing the cases on which jurists work, then gender has influenced the content of law—even if the jurist operates with a feminist perspective.

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