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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 morals and values, and the cultures upon which our society bases itself. As Cham and Whiteson note in the foreword to We Have No Idea, “by understanding what we don’t know, we can see that the future is still full of amazing possibilities. So strap in, get comfortable, and get ready to explore the depths of our own ignorance, because the first step in discovery is to know what is unknown.” Perhaps they were discussing physics and not politics, but if Newton and Bose were willing to demand more from the laws of physics, we fail to see why we can’t demand more from the laws of representation and justice as well.

When it comes to female judges, we tend to expect more of them by virtue of their role as minorities within spaces that normally didn’t allow for them.

This is probably because as women, we know that men historically haven’t fought in our corner, and so when we finally get someone through the door, we expect them to break barriers. Malhotra and Banerjee, whilst we may disagree with their decisions, aren’t the only ones with the power to change things, and institutions which were built to uphold certain structures should not be where we look to be the sole force of change.

Even RBG had her flaws. In Sherrill v Oneida Indian Nation, she wrote the 8-1 majority verdict that refused to restore lands to a Native tribe and revive its sovereignty. Her ruling used underlying colonial reasoning which described the “non-Indian character of the land”, using the so-called “discovery doctrine” which in 1823 deemed that any land which isn’t occupied by European Christians could be inhabited. The ruling stated that the Court “must prevent the Tribe from rekindling the embers of sovereignty that long ago grew cold”, effectively ignoring tribal history, civilisation and ancestry, and was a huge blow to indigenous rights amongst other cases that RBG has had a hand in. She later called it her biggest regret during her time in the Court.

Placing these examples side by side raises the question - how far can we go with our expectations for women in power, and ultimately is pushing for representation still useful if those who make it don’t represent us? The realisation is that women can only be representative for some, not all.

So whilst it might be easy to criticise someone like Amy Coney Barrett, who is more obviously ideologically opposed to minority rights, it must also be acknowledged that all Supreme Courts, US and India alike, are designed to maintain social systems, and as such, their default will rarely if ever be set to embrace social change, anti-colonialism, and civil rights. RBG and Coney Barrett may at first seem like chocolate milk and battery acid in comparison, but for some, they’re actually both cut from the same cloth of a narrow, white brand of feminism, with RBG representing the liberal type, and Coney Barret representing the religious type. Employing both an intersectional and indigenous perspective on the onus of representation, the champion of the people isn’t found in either of these women. Malhotra and Banerjee can be looked at in a similar way, they can’t possibly represent every woman, but also every tribe, or caste, or religious sect.

However, progress isn’t binary, it’s a continuum. The role of institutions such as Supreme Courts within the march for progress lies in their existence as key nodal points within a greater web of social change. They confirm and define social growth and in many ways, set the baseline for societal movements - they draw a legislative line in the sand which society can look upon and say, ‘from here on, we cannot return to whence we came.’ But when these baseline institutions lag behind the societies they are meant to represent, they drag backwards along with them the entire ecosystem of progress, erasing those lines and resurrecting challenges and threats to modern social progressions which had long been buried in dust. We saw this in the unanimous ruling in favour of decriminalising same-sex marriage in India two years ago. We saw this with Roe v Wade. And while the anatomical makeup of the courts in these decisions surely played a part, their willingness to push forward positive change that benefits not just their own identity group, but others as well as was much more critical.

And as always, while considering what those in power are capable of, we have a responsibility to stop to consider our own power as well.

We must acknowledge our own role as the penultimate check and balance in the great democratic experiment. When the judges, whether male or female, who are meant to represent our values and morals systems as a society fail to do so, it is we who must hold them accountable.

We do so by challenging such decisions, assisting those who do so within the legal fora, and helping to lower the barriers and obstacles for those trying to access legal systems. Grassroots activism and advocacy also help define social pathways to progress, so that when these issues come to light, those with the power to do so, are able to see the road ahead. But moreover, whether it be in our homes, in the markets, or in the courts, we hold space for others, to help create stronger and more inclusive discourse around where we as a society, should draw our lines in the sand.


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