Document Type

Article

Publication Title

Houston Law Review

Abstract

On June 24, 2022, the U.S. Supreme Court issued its much-anticipated decision in Dobbs v. Jackson Women’s Health Organization, upholding a Mississippi ban on pre-viability abortions and overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, once the twin pillars of the Court’s abortion jurisprudence. Given the intense focus on Dobbs, the Court’s other consequential decisions on gun rights and religious freedom received less attention. The neglect of these other decisions is unfortunate because, when viewed in tandem with Dobbs, these other decisions suggest the Roberts Court’s commitment to an ascendant “jurisprudence of masculinity” that prioritizes, both explicitly and implicitly, men’s rights, even as it diminishes and constrains women’s rights. Focusing on Dobbs, New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely. Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation. The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation. By focusing narrowly on certain historical moments, while ignoring the histories that undermine — or challenge entirely — its preferred vision of constitutional rights, the Court interprets the Constitution, its text, and history in ways that prioritize and protect men in their exercise of constitutional rights while willfully ignoring the history that might support women’s claims for constitutional protection and rights. The Roberts Court’s commitment to this burgeoning jurisprudence of masculinity has costs and consequences that go beyond Dobbs and October Term 2021. In casting itself as the arbiter and protector of men’s rights, the Court necessarily leaves the protection of women and their rights to the political process. And while the prospect of a demosprudence of womanhood might seem an appealing counterpoint to a jurisprudence of masculinity, it is decidedly less attractive because the Court, again through its decisions, has facilitated the distortion and disruption of the processes of democratic deliberation. The Court’s distortions of the democratic landscape make it more difficult for women to participate as equal citizens in, and to achieve the codification and protection of their rights and interests through, the political process. In this regard, the jurisprudence of masculinity succeeds as intended, entrenching a revanchist vision of constitutional rights that is at odds with the prospect of a modern, pluralistic democracy.

First Page

799

Volume

60

Publication Date

2023

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