A Suitable Judge: Courting Gender Equality, from Amy Coney Barrett to Indu Malhotra

By Raiyah Butt and C. Chandrawala

Aren’t we all just counting the days at this point? They always say time flies, but for some reason, November 3rd can’t seem to get here fast enough. Before we get into this international dissection of Supreme Courts, can we just take a minute and say:

to our friends over in the US - please, just vote.

The 2016-2020 term in American politics has been the gift that just keeps giving, and despite all our collective “oh please, that’s not necessary”-ing, it still had one more gift to give.

Amy Coney Barrett.

The swearing-in of Amy Coney Barrett to the US Supreme Court, eight days before the election, was a direct blow to so many things - bipartisanship among the American judiciary, migration, gender, and of course, women’s rights. Don’t get me wrong, I’m sure Ms Barrett represents women, anatomically. I’m just not sure the representation goes any further than that. And perhaps when Trump, speaking about filling the seat left by Ruth Bader Ginsburg, assured the world, don’t worry - “it will be a woman”, a pocketful of people sprinkled around the world optimistically thought, “same-same, no?”

Amy's predecessor, Ruth Bader Ginsburg aka RBG was championed not because of her biological definition, but because of her legacy as a trailblazer for women’s rights in the courts. So Amy Coney Barret? No, not quite 'same-same’.

Ruth Bader Ginsburg

Before becoming a judge, she co-founded the ACLU’s Women’s Rights Project, and argued over 300 gender discrimination cases - six before the Supreme Court. She fought for equal pay, abortion rights, and was the first judge to officiate a same-sex marriage. Her relentless efforts to challenge the status quo for women through the law earned her the nickname the Notorious RBG. Over time, she became a representative not only of her own views, but of a broader culture movement, and highlighted precisely why it was important for those views to be represented within powerful cornerstone institutions such as the Supreme Court. Her passing has not only led to a revisit of her legacy, but a discussion around how Barrett, another woman, may be a part of closing some of the doors that RBG opened.

When asked about Roe v Wade, one of the Supreme Court’s most contentious cases which legalised abortion, Barret has either refused to say if she would uphold access to abortion, birth control and fertility treatment or has on a number of occasions indicated her pro-life stance.

During her time as a law professor at Notre Dame School of Law, she was a member of “Faculty for Life”, an anti-abortion group. She also served as a “handmaid”, a high ranking leader in the religious group People of Praise, that believes in women’s subordination to men, and opposes both LGBTQ rights and abortion. So, here we have someone who is the ideological opposite of the woman she’s replacing and is the tipping point of the Supreme Court bench in favour of a Conservative majority.

The assumption is often made that a minority in a position of power will automatically advocate for the rights of their minority group. But clearly, this isn’t the case. Personal views and political beliefs will often conflict with what we hold up as the ideal, progressive, modern-era judge. And in the Supreme Court, this has a huge effect on our rights and privileges, and in turn our social progress.

Indu Malhotra

We see this weird reductive rationale around minority or women’s representation play out in India as well. In India, there are only two female judges out of thirty-four in the Supreme Court: Indu Malhotra and Indira Banerjee. I mean, talk about putting the OK in tokenism. On the one hand, we can’t reasonably expect the weight of Indian feminism to rest upon the shoulders of two women. But what we can ask for is those women to use their power for opportunities of advancement for women’s rights, acting as alternative perspectives and needed voices in a male-dominated space. If we look closer, we can see that these opportunities have often been willfully missed by Malhotra and Banerjee.

In 2018, the Indian Supreme Court revoked a ban that barred women of “menstruating age”, that is aged ten to fifty, from entering the holy temple of Sabarimala. Chief Justice at the time Dipak Misra said that “the right to practice is available to both men and women''. Whilst this verdict was hailed, a disappointment was found in the fact that the only woman judge at the time, Malhotra, dissented from the majority verdict. In her opinion “deep religious sentiments should not be interfered with by the court”. But where can the line be drawn between interference in religious practices and preventing discrimination against women? When the former is encompassing the latter, shouldn’t we reasonably expect a woman to defend for equality within religion? And here we begin to see the divergence in having women in a Supreme Court and having women’s rights in a Supreme Court. As with most legal frameworks, the devil is in the details.

Indira Banerjee

Another case saw Banerjee author the opinion which upheld a High Court judgement in a dowry death case, State of Haryana v Angori Devi.

*Content warning - graphic death*

After ongoing disputes, harassment, and abuse by her husband and his parents, a woman was tortured and killed, with kerosene oil poured on her body and burnt to death. Her in-laws had previously asked for Rs.60,000, but the victim’s father could not afford it, and just over a year later his daughter was dead. The Court upheld that there was insufficient connection and evidence between the demand for dowry and the cruelty, harassment and death of the victim. Whilst we won’t get into the legal complexities, a woman’s death that is wrapped up in the violence of patriarchy, unequal matrimony, and abuse of the vulnerable was dismissed as “normal under the circumstances and within seven years of marriage” as written in the verdict delivered by Banerjee. As harrowing as this is, Banerjee delivered her opinion in accordance to the value system she believed deserved further representation - acting in a manner that aligned with patriarchal values and further entrenched deeply exploitative and abusive norms for women across the board, and most particularly for those among lower socio-economic classes.

To be clear, this isn’t a testimony against the appointment of female judges. It is a revelation about how much more we need to demand from both, male and female judges, and a recognition that the fight for women’s rights and minority rights is not confined to gender.

It is also a recognition of how shallow our exploration of representation has gone. But rather than depressing us, we should be excited at the possibility of exploring so many more forms and forums for representation to occur. Ones that go beyond our simple anatomical makeup to better reflect our moral