Document 2: Judith Resnik, Excerpts from "'Naturally' Without Gender: Women, Jurisdiction, and the Federal Courts," New York University Law Review, 66 (December 1991), pp. 1682-1767.
This article was written when the Violence Against Women Act was still pending before Congress, and the author, Judith Resnik, noted that she was a "participant in some of the events" about which she wrote through her work as adviser and witness before the Federal Courts Study Committee, and as a member of the Ninth Circuit Task Force on Gender Bias. In this article, Resnik explored the role that gender plays in the allocation of work between state and federal courts. One of the major aims of the VAWA was to combat the inequality that women victims of violence encountered within state judicial systems. Resnik discusses the extent of this problem in the federal judiciary.
"NATURALLY" WITHOUT GENDER:
WOMEN, JURISDICTION, AND
THE FEDERAL COURTS.
For many years, women who work (or who have tried to work) with law and in courts have understood that their gender was relevant to that work. However, until recently, those who run the courts to which women have sought entry have not been interested in the effects of women on courts and of courts on women. Below, Professor Resnik explores the relationship between women and the federal courts and the role that gender plays in the allocation of work between state and federal courts.
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INTRODUCTION: JURISDICTION AND GENDER
A. The Emergence of Gender as a Topic for Courts
Women have long organized around their participation in legal institutions -- in groups such as the National Association of Women Lawyers, the National Conference of Women and the Law, the National Conference of Women Bar Associations, the National Association of Women Judges, and the Section on Women in Legal Education of the American Association of Law Schools, and by means of several journals that now exist at law schools around the United States.In the 1960s and 1970s, as women litigated about their rights, they found that some of the pain of discrimination came from the very places to which they brought claims -- courts.
In an effort to educate judges about the discrimination that was occurring under their aegis, the Legal Defense and Education Fund of the National Organization of Women founded the "National Judicial Education Project" (NJEP), which worked in cooperation with the National Association of Women Judges. The shorthand for the issue became "Gender Bias in the Courts," and the primary vehicle of expression became the creation of "Gender Bias Task Forces." New Jersey led the way in 1982 when Chief Justice Robert N. Wilentz of that state's Supreme Court created the first such Task Force.By the spring of 1990, "task force activity at various stages of operation [was] underway in some 30 jurisdictions" in the United States. These task forces review an array of topics, including the application of substantive legal doctrine, courtroom interactions, and the role of the court as employer. The conclusions of the Report of the New York Task Force on Women in the Courts are illustrative:"[G]ender bias against women . . . is a pervasive problem with grave consequences. . . . Cultural stereotypes of women's role in marriage and in society daily distort courts' application of substantive law. Women uniquely, disproportionately and with unacceptable frequency must endure a climate of condescension, indifference and hostility."
B. The Reluctant Federal Courts
From 1982 until 1990, these task forces on gender bias in the courts were exclusively the domain of state courts. The federal courts (either acting circuit by circuit or as a whole by action of the Judicial Conference of the United States) neither took the lead nor followed suit in forming committees to ask questions about the interaction between gender and the federal court system. The question of what role, if any, the federal courts as an institution might take in considering the effects of gender has come to the fore recently because of actions by Congress and by the federal judiciary.
In 1988, Congress created a specially chartered committee, empowered to provide a comprehensive overview of the federal judicial system. That group, the Federal Courts Study Committee (FCSC), with fifteen members appointed by the Chief Justice, included several federal judges; its charge was to think about the future of the federal courts. Many individuals and organizations saw the FCSC as having the potential to make recommendations about how gender affects decisionmaking, employment, and work in the federal courts. The FCSC thus heard and received testimony -- including many requests that the federal courts, like the state courts, convene gender bias task forces and begin other programs on gender bias.
The April 1990 Report of the Federal Courts Study Committee concluded that "another study" was not needed, but that education was. In support of its recommendations, the FCSC stated:Studies in many state systems reflect the presence of bias -- particularly gender bias -- in state judicial proceedings. Although we have confidence that the quality of the federal bench and the nature of federal law keep such problems to a minimum, it is unlikely that the federal judiciary is totally exempt from instances of this general social problem.
The FCSC Report did note that education about, awareness of, and vigilance against discrimination were always appropriate.
The second congressional action that raised the "gender question" was proposed legislation, the Violence Against Women Act, now pending before Congress. As described by its sponsors, the Act responds to the "national tragedy" that makes women the victims of violence in homes, workplaces, and on the streets.The Act has several provisions (such as a National Commission on Violent Crime against Women, funding of state programs on violence, and promoting safer college campuses). But what has caught the attention of the federal judiciary are two jurisdictional sections. One would provide a federal civil rights remedy to a person who is the victim of a "crime of violence, motivated by gender." Another section would create a federal crime when a person travels across state lines to injure, harass, or intimidate a spouse or intimate partner.
In the fall of 1991, the Judicial Conference of the United States issued a resolution opposing the enactment of the civil rights provisions of the proposed act. As a report of the ad hoc committee appointed to study the proposed legislation described, the Judicial Conference would like to play a "constructive role in offering its assistance to Congress in the effort to fashion an appropriate response to violence directed against women." However, according to the Conference, changing federal jurisdiction would be a mistake, for it would "embroil the federal courts in domestic relations disputes" and "flood [the federal courts] with cases that have been traditionally within the province of the state courts."
In his 1991 "Year-End Report on the Federal Judiciary," the Chief Justice echoed these themes. Noting that the federal courts are a precious national resource, the Chief Justice insisted that their role should be "reserved for issues where important national interests predominate." Within a few paragraphs, he urged that Congress attend to the Judicial Conference's opposition to the jurisdictional provisions of the Violence Against Women Act. Nowhere did he or the Judicial Conference endorse the provisions of the Act that would support gender bias studies and education in the federal courts.
Atop these two legislative initiatives come two grants of certiorari that require elucidation of the relationship between federal jurisdiction, women, and families. In NOW v. Operation Rescue, the Fourth Circuit held that women seeking access to health care facilities that provide abortions can invoke federal jurisdiction. Joining in the request for Supreme Court review, the Department of Justice argued that the federal courts have no such power. While this case has attracted sustained media attention as federal judges and Operation Rescue members face off, the other case the Supreme Court will hear is distinguished by the absence of popular attention paid. In an unpublished opinion in Ankenbrandt v. Richards, the Fifth Circuit affirmed a district judge's decision to decline to hear a child abuse diversity tort action. The trial court had relied on the so-called "domestic relations exception" and dismissed a complaint that alleged that Richards (whose parental rights had been terminated by a state court proceeding prior to the filing of the federal lawsuit) and his companion Kesler had abused Richards' former children. While acknowledging that tort actions did not fit "squarely within the Domestic Relations Exception," the trial court noted that the state court judgment could be modified and the issue of parental relationship reexamined. The trial court relied on the "state court interest in the ongoing welfare of the minor plaintiffs" to conclude that the "possibility of conflicting findings in this Court violates the basic principles of comity and compels this Court to apply its discretion declining the exercise of jurisdiction . . . ." This district court reading parallels the Judicial Conference's opposition to a portion of the Violence Against Women Act. Both are premised on a view that the federal courts should decline jurisdiction over "domestic relations" -- defined in Ankenbrandt as including violence against children as well as against women -- in favor of state court authority.
C. The Underlying Premises
Return to the language chosen by and the conclusions of the Federal Courts Study Committee (FCSC) about gender bias in the federal courts:[T]he quality of the federal bench and the nature of federal law keep such problems to a minimum . . . .
Given recent attention paid to "natural law," one might be tempted to tease the FCSC Report about its choice of words. Further, given the absence in the record before it of any empirical information to support such a conclusion and given testimony that argued the opposite, one might be tempted to quarrel.
But rather than tease or quarrel, I think there is much to learn from the words and assumptions imbedded therein. The phrases "the quality of the federal bench" and "the nature of federal law" are useful, for they provide insight into the rhetoric, ideology, doctrine, and workplaces of the federal courts. Those who governed the state courts developed a sense of urgency about the relationship of courts to women. After inquiry, many state task forces concluded that women were "denied credibility" in courts and faced "a judiciary underinformed about matters integral to many women's welfare." Yet that urgency to study bias against women was not shared by those who governed the federal courts.
The implicit premises of the FCSC conclusion are that the people who become federal judges and the work that they do somehow are shielded from engaging in or being swayed by discrimination based on gender. What in the selection of federal judges and in the subject matter and jurisdiction of the federal courts would help insulate that judicial system from the disturbing conclusions reached in state jurisdictions about the degree to which gender bias exists and affects adjudication and other court-based processes? What is it about either "gender bias" or "the federal courts" that makes problems of discrimination against women less troubling ones in federal as contrasted to state adjudication?
Responding to these questions is not an inquiry into the "original intent" of the speakers but rather into the cultural and doctrinal milieu that shaped their conclusions. Answers require examination of both "gender" and "the federal courts." In this context, the word "gender" masks the issue, for "women" are the relevant category here, as they are in much of the work of Gender Bias Task Forces. Officially, court-based task forces embrace concerns about discrimination against anyone based on gender. In practice, "gender bias" task forces inquire principally about and document discrimination against women in the legal system. Once the words "gender bias" are translated as "discrimination against women," then the perception is that something about "the quality of the federal bench" and "in the nature of federal law" keeps problems of discrimination against women "to a minimum."
Different views might form the basis for this conclusion. A first is either that federal judges, when appointed, are screened for attentiveness to women's issues or that federal law is itself intrinsically egalitarian in statement and application and thus without discrimination against women. The argument might run that because of federal legislation like Title VII and constitutional antidiscrimination premises, federal judges are specially situated, already attuned to the problems women face and enforcing laws to prevent discrimination. Were it true that federal judges were so chosen or performed work that insulated them from bias, federal judges might well have welcomed gender bias task forces to confirm their inclusion of women and to alert them to any ways in which their intended egalitarianism failed in practice. However, given the controversy over the Violence Against Women Act, sketched above, and the demographics and ideology of the federal judiciary, detailed below, claims of deep egalitarianism are difficult to sustain. Similarly, while controversial recent appointments to the federal courts indicate that a candidate's attitudes towards women's rights have become relevant to appointment, there is little evidence that commitment to women's rights is a "litmus test" for nomination or confirmation.
In my view, the diminished sense of "gender" comes not from the complete implementation of egalitarian principles, but rather from a perception that the world of the federal courts is populated by and is about men. The fact of women's invisibility (documented by the very possibility of seeing the federal courts as places with little to do with gender bias) provides the basis for this inquiry about how the federal courts as a system could be perceived as not having much to do with women and their problems. The questions are several. Are women absent in fact or present but paid no attention? Absent and present in what roles? Pursuant to what jurisdictional rules? Why is state law understood as the arena more relevant to women than federal law? Based on what normative and doctrinal claims about the appropriate divisions between state and federal courts of the tasks of dispute resolution, law enforcement, and law creation?
Happily, I am not alone in asking these questions. In addition to a growing body of law review literature considering the gendered nature of federal laws and rules, two federal circuits have expressed willingness to consider the impact of gender on their work. In June of 1990, the governing body of the Court of Appeals for the District of Columbia Circuit created a committee to review court activities and consider racial and gender bias.In August of 1990, the Judicial Conference of the Ninth Circuit approved a resolution calling for a study of gender bias in its courts. This resolution will result in the first report of a task force charged with addressing gender bias issues in the context of the federal courts. As noted above, Congress is also considering legislation that would encourage circuits to study gender bias and would request that the Federal Judicial Center provide training and education. Thus, from a variety of places and using a range of methods, including surveys, data collection, reviews of case law, reports on office policies, and focus group discussions, people are thinking about the extent to which gender affects the federal courts and the federal courts affect our understanding of gender distinctions.
These efforts are made especially complex by the subtleties of all the elements of the topic -- gender, the federal courts, and the state courts. While it is both tempting and appropriate upon occasion to speak of "women" and of "men" as distinct categories, it is imperative to be sensitive to the limits of this distinction. One cannot assume that all women or men share the same experiences. Factors other than gender -- such as class, race, religion, and sexual orientation -- create important differences within the categories of "women" and "men."
Similarly, "the federal courts" are not themselves fixed or easily described. Within the national system, the circuits provide substantial variation in custom, practice, and tone. Moreover, little attention is paid to many of those who sit as "federal judges" but lack life tenure, as well as to the lawyers and staff who also populate "the federal courts" and shape the culture. Some 750 individuals hold life-tenured article III judgeships. Another 745 judges, named "magistrate judges" and "bankruptcy judges," do not have life tenure but do make first-tier adjudicatory decisions within the federal courts and are key participants in the interrelationship between trial court and litigants. In the shadows are law clerks, court clerks, and staff attorneys who influence both decisionmaking and the working environment. Standing outside the federal courts are another set of federal judges -- administrative law judges -- who may be the "federal judge" for many litigants who experience the system and who make the records reviewed by judges inside the courts.
State courts also are difficult to characterize. By definition each state system is insular, with its own judiciary, rules, doctrine, and ideology. The need to look at the specific context and to accept responsibility drives the request for state-by-state gender bias task forces. Yet, for certain purposes, all state courts stand in similar relationship to the federal courts. In short, although "essentialist" claims are made about women, the federal courts, and state courts (e.g., women are "essentially" wives and mothers; the experiences of heterosexual white middle class women are "women's experiences"; there are "essential attributes" of judicial power; family law is governed "essentially" by the states), attention to the distinctions within all categories is crucial, even as one simultaneously invokes the generics of gender, states, and the federal courts.
D. Challenging the Assumptions
Below, I explore empirical information, doctrine, and the jurisprudential and ideological assumptions about women in the federal courts to understand how perceptions about "the quality of the federal bench" and "the nature of federal law," on the one hand, and how the nature of the legal problems presumably faced by women, on the other, work together to support a belief of women's relative absence from the federal courts. The examination of the interaction of women, the federal courts, and the state courts is a vast undertaking. Here, I begin by trying to explain the differing attitudes toward the topic of "gender bias." At first glance, the disinterest of the federal judiciary in gender bias is puzzling. Some of the most visible federal litigation of the past decade were "women's" cases, involving reproductive freedom, sexual harassment, and injuries caused by the interuterine device, the Dalkon Shield.
What underlies both this lack of interest in and opposition to jurisdiction over gender-related injuries is the usually unstated and widely shared assumption that women are not relevant to the federal courts. This assumption, in turn, is fueled by an association of women with roles traditionally governed by state law (marriage, childbearing, and family care -- oversimplified, a "private" world) and a corresponding association of the federal courts not with such "domestic" concerns but rather with commerce, constitutional law, federal statutory enforcement (oversimplified, a "public" world) in which men predominate. The 1873 decision in Bradwell v. Illinois (which upheld a state law barring women from practicing law) is a classic statement also invoking "nature," of these divisions. According to one of the concurring Bradwell justices, women need not be given the right to practice law, for the "paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. . . . In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position." The dichotomy drawn, between a commercial arena that includes law practice and the domestic scene in which women perform "the offices of wife and mother," roughly parallels assumptions about state and federal jurisdictional lines. Traditionally, family law (including the violence done to women in families) has been described as a topic for state law.
While Bradwell is well-known and often cited, there is another case deserving of equally close attention that, were it to be read, would undercut the assumption of state cours' dominion over family life. In 1859, in Barber v. Barber, the United States Supreme Court upheld the claim of a woman, invoking federal court diversity jurisdiction and seeking to obtain payment of alimony from the husband from whom she was separated. Finding a woman capable of having a separate domicile, Barber is an early juridicial recognition of women's rights and of federal court jurisdiction over interspousal disputes. But Barber has been reinterpreted in subsequent cases, both to narrow its legal scope and to align it with the ideological assumptions of Bradwell -- that women's roles in the family are not much a part of the national issues to which federal court resources should be dedicated.
Below, I map the sources of this ideology of the absence of families and of women from the federal courts to examine how it is both true and false. First, women's presumed absence from the federal courts has a material basis. In several respects, we women are in the federal courts in smaller, less visible and less powerful roles than are men. The demographics of this workplace, detailed below, demonstrate dense concentrations of women as staff, but few as judges and lawyers. As of the spring of 1990, four of the thirteen appellate courts and sixty of the ninety-four district courts had no article III judges who were women. In contrast to the higher echelons of the federal court work force, a review of federal jurisdiction suggests that women are frequent litigants in the federal courts. However, the dominance of the professionals, who are overwhelmingly male, coupled with the ways in which federal litigation is conducted, the low visibility of certain kinds of cases, and the imagined irrelevance of gender, reinforce the impression of an absence of women. Although actually present in the federal courts, women are paid little attention.
Second, this less visible relationship between women and the federal courts is supported by pervasive ideological, legal, and sociological assumptions and actions. Women, seen as actors in private rather than public life, are assumed primarily to interact with law as wives, mothers, and victims of violence, some of which occurs inside homes but does not deserve the gloss of the word "domestic." Family, in turn, is assumed not to be much a part of federal jurisdiction or a topic of federal jurisprudence. Federal judges repeatedly claim that family law is the "province of the state," and now disclaim a willingness to understand that claims of violence motivated by gender are "civil rights" cases appropriate for their jurisdiction. The disowning of family law and of violence directed against women on the federal side is echoed by the visible presence of these topics on the state side. Much of the work on gender bias in state courts, thus far, has looked at women in families, as divorcing parents disputing custody, as mothers in search of child support awards, and as victims of violence.
Both the equation of women with the family and the reduction of the law of the family to matters of marriage, divorce, and custody derive from nineteenth-century images. These equations lead to another nineteenth-century claim about the relationship between federal and state court jurisdiction -- that family life is governed by the law of the states, and that the federal courts "ought" not to get involved. But there is no intrinsic "ought" and nothing "natural" about this jurisdictional relationship; indeed, some federated systems place family law within the national sphere.
Two elements are missing from this ideological construction: acknowledgement of the deliberate construction of jurisdictional rules and doctrine to exclude "domestic relations" from federal court authority and acknowledgement of the wealth of federal law that implicitly and explicitly regulates many aspects of family life. These federal laws of the family come occassionally from the imposition of constitutional obligations on state lawmaking and more often from federal statutory regulations on reproduction, welfare, social security and pension benefits, tax laws, immigration, and bankruptcy, and by virtue of federal governance of some aspects of the lives of those in the military, in federal territories, and over Indian tribes.
Court systems are workplaces, administrative bureaucracies, and buildings. Court systems are also ideas, constructed from jurisdictional grants, jurisprudence, histories, and self-made images. From the understanding, sketched above, about how state and federal courts see themselves in relation to women comes need for changes in practice, rhetoric, and ideology. Women must press harder to be a part of the federal courts because of the ideology of the federal courts as well as of the nation, which identifies women with domestic life and then ignores the needs of that life. The assumption that the federal courts are doing work central to the nation reiterates the marginalization of the lives and work of women in national culture. Because the federal courts claim to be and are understood as the place in which the national agenda is debated and enforced, women must insist that our presence be recorded and that we not be summarily sent elsewhere. The "law of the federal courts" needs to be rewritten to take our presence into account and to examine, critically, what kinds of family law decisions federal courts do and should make, how authority over family life is and should be shared among court systems, and whether both court systems should respond to violence against women. Simultaneously, federal law must disentangle women from the net of family life and recognize us as actors in the full range of disputes that are the bases for federal adjudication.
However, the sense of the federal courts as important places for women to inhabit should not be translated into a presumption that federal courts are to be preferred to state courts as institutions willing to attend to women's claims. Here is another place to reject the essentialist claim that in the very being of one or the other court system lies empathic understanding of women's injuries. Rather, it is the lesson of the thirty gender bias task forces already underway that bias knows no jurisdictional boundaries. The diminution of discrimination against women awaits commitment, conscious decisionmaking, appointment and selection of judges who have demonstrated concern about the existence of discrimination, ongoing education, and willingness to uncover new understandings of how endemic -- in the "nature" of law as constituted in the United States -- are injuries done to women.
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PRESENT YET ABSENT
Given the many places -- both outside and in families -- in which women form the subject of discussion of federal law, return again to the puzzling statement that "the quality of the federal bench and the nature of federal law" render gender bias problems minimal. Consider also the lobbying against the jurisdictional provisions of the Violence Against Women Act. Proponents of the Act seek the creation of a federal civil rights remedy; opponents claim that federal jurisdiction would enmesh federal judges in a domestic world foreign to them. With all of this documentation of the presence of women and of the plentiful involvement by the federal courts with family life, how can the argument in opposition to the Violence Against Women Act be framed in terms of the absence of family life issues from the federal courts? Why is the refusal to propose gender bias studies linked to the "nature of the federal law" and the "quality of the federal bench"?
In general, women suffer discrimination and the issues that concern us are ignored or trivialized. In addition to these general attitudes, the answers lie in the ideology of federal courts jurisprudence, to which I now turn. Before beginning that discussion, I must pause to consider the methodological problems of embarking on such an inquiry. The difficulties are, obviously, about sources and assessment of "ideology." Trying to trace women's presence and absence in the materials about the federal courts is a daunting task, at the end of which one cannot claim to have found definite "proof." The "federal courts" have been a discrete topic for legal inquiry -- at least insofar as contemporary law libraries reveal -- from shortly before the Civil War, when practitioners and scholars began to write books, treatises, and eventually teaching materials on the subject. Looking for women in this body of literature demands that one explore what is said, what is not said, and the contemporary cultural meanings of both speech and silence.
Below, I use three approaches (in no way claimed to be comprehensive) as a window into what those who delineated the canon of federal courts jurisprudence took to be the place of women. First, I examine the official reports provided by the Director of the Administrative Office of the United States Courts -- looking at if, how, and when women appear. Second, I review early treatises and casebooks as well as contemporary casebooks about the federal courts to see when women are a topic of discussion. Third, I consider the rules by which federal courts have declined to exercise jurisdiction over "domestic relations." These last two approaches are interrelated as the domestic relations exception is sometimes the place in which women (in their capacity as wives or aspiring ex-wives) are mentioned in books about the federal courts.
A. The Chronicles of the Courts
Listening to self-description is an important method of feminist inquiry. Law professors and political scientists write about the federal courts. Judges write for the federal courts. But the federal courts also describe themselves through reports authored either by employees of the federal courts or by those affiliated with the federal courts. Since 1940, the Director of the Administrative Office of the United States Courts has filed an "Annual Report" which describes the "business" of the courts. More recently, as a result of the Civil Justice Reform Act of 1990, individual district courts have begun to issue their own reports about the state of their dockets and their plans for civil justice reform. These documents are impressive in their silences. Women are sometimes utterly absent and only on rare occasion implicitly or explicitly present. Ironically, from the vantage point of a reader of Annual Reports, women as members of judges' families are the most visible set of women in the federal courts.
The Administrative Office's Annual Reports are comprised of both descriptive information and detailed statistical tables. From 1940 until 1990, women were not frequently a topic directly addressed. One can imply women's presence from some of the categories of litigation listed. For example, from 1942 until 1960, "divorce and maintenance" was a reported classification of cases under the "local jurisdiction" of the district courts. Beginning in 1961 and continuing to the present, "domestic relations" has become the categorization and accounted for a tiny percentage of the federal civil docket.
Turning to criminal litigation, women appeared sporadically as probationers. During the first year of reporting, probation tables classified probationers by sex; during the second year of reporting, classifications also included "race and nativity." The sex and race delineations were resumed from 1955 to 1962, and then disappeared. Women do appear, implicitly, as victims of crime; rape is one of the offenses found in most of the lists of crimes, although it has been categorized differently over the years. From a research point of view, the absence of specific information on women is regrettable. For example, while women make their way into the pictorial graphics (black and white silhouettes of those selected and challenged for jury service), neither text nor table provides a breakdown by race and gender of those who served.
No mention is made of women as article III judges. While data are provided on vacancies, appointments, and authorized positions, the demographics of the judiciary are not. Women are implicitly present as wives, widows, and daughters of federal judges. Beginning in 1955, each Annual Report contains a discussion, sometimes relatively lengthy, of the Judicial Survivors' Annuity Fund. In light of the workplace demographics, women are heavily represented in this group. Our presence is recorded by the only use of the pronoun "she" found in the text of the Annual Reports.
Women as workers in non-article III positions do come into focus, temporarily, in the 1980s. In 1980, the Judicial Conference established the Equal Employment Opportunity Program (EEOP), aimed at developing programs for more inclusive hiring (save judicial appointments). From 1981 to 1983, each Annual Report included a description of the mandate of EEOP and referred the reader to a separately published report. From 1984 to 1986, such data moved into the report itself, and lists of the numbers of women and minorities (but not of the intersecting categories of women who are also members of other minorities) appeared. In 1987, these data collections disappear; and in 1988, the explanation provided is that the Judicial Conference changed the requirements so that the EEOP information no longer had to appear in the Annual Reports.
Another possible source of discussions about women is the newly issued Civil Justice Delay Reduction Plans, written by district court committees and promulgated by district courts by virtue of the Civil Justice Reform Act. In the thirty-three lengthy documents (available as of this writing) from districts in twenty-four states and the Virgin Islands, no mention is made of any distinct issues or problems that women, as litigants, lawyers, employees, judges, or jurors, have in the federal courts.
B. The Jurisprudence of the Federal Courts
Other sources to explore are books written by those who describe the federal courts from the perspectives of scholarship and education. Several of us who teach and write about the federal courts have tried to uncover some of the underlying assumptions of that discipline. Some scholars tell a story of the federal courts as a nationalizing force, with key events being the Civil War and the civil rights activity of the 1960s; others rely on the role of state courts at the founding of the nation and seek to describe those institutions as central. The jurisdictional analyses of Posner, Chemerinsky, and Kramer provide other windows into federal court ideology. The federal courts are claimed to be the means by which to create uniform interpretation of federal law, to minimize "diseconomies" of difference, to lessen the imposition by self-interested states of externalities on other states, and to protect the vulnerable. All theories and descriptions of "the federal courts" take as part of their subject matter the division of responsibilities between state and federal court systems.
What role do women, in and out of families, play in these ideological constructions and jurisdictional descriptions? Contemporary literature, such as the Report of the Federal Courts Study Committee, does not much discuss women as a topic. In contrast, some of the early federal courts literature did mention women, often when reviewing women's disabilities as juridical actors. When early casebook writers considered the topic of the relationship between federal and state courts, some of them used "domestic relations" and "probate" as illustrations of jurisdiction reserved to the states.
As women's legal disabilities diminished and we gained recognition as officially eligible to participate in the federal courts, women became less visibly a category to consider in books about the federal courts. Moreover, despite the role of federal courts in enforcing statutory and constitutional equality rights and the growth of federal court authority over family life, contemporary casebook authors have not returned to the topic of the powers of state and federal courts over family life. Gains in official legal recognition as participants have obscured interest in the continuing effects of being a part of the category "women."
1. Women as Citizens and Litigants
Those who took as their task to explain federal court jurisdiction sometimes paid attention to the legal disabilities that constrained women who sought to be juridical actors, as citizens, witnesses, jurors, and lawyers. For example, some early commentators discuss that married women were deemed citizens and residents of the states in which their husbands were domiciled. Others address the limited authority of married women to sue on their own behalf, the roles of guardians ad litem, and the mode of examining married women who attempted to convey property. Yet others discuss the impact of such disabilities. By dipping into "old" books on the federal courts, one can sometimes find "women" as a group among the specially disabled.
Moving from treatises to the early casebooks, women appear as they struggle for recognition as citizens and thus raise the question of who is a "natural person" for purposes of diversity of citizenship. For example, George W. Rightmire's Cases and Readings on the Jurisdiction and Procedure of the Federal Courts, published in 1917, was one of the first casebooks designed specifically to teach students about the federal courts and included the case of Minor v. Happersett. The issue in Minor was whether a Missouri law, providing only men with the right to vote, violated the then recently adopted fourteenth amendment of the United States Constitution. The Court's opinion, written by Chief Justice Morrison Waite, concluded that there was "no doubt that women may be citizens" and that that possibility predated the fourteenth amendment, for such right adhered in being part of "the people" -- either by birth or naturalization. As the case reasoned, because "females are included" as part of "the people," women were also to be included as part of "all children" who can gain citizenship by virtue of being born in a country in which the parents are citizens. Support for its conclusion of women as citizens was drawn from court records, which were "full of cases in which the [diversity] jurisdiction depends upon the citizenship of women . . . . Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States." From there, the Court reasoned that, as citizens, women were "entitled to all the privileges and immunities of citizens" and thus the question was whether voting was such a right. Recognition as citizens, however, did not lead to the right to vote as the Court held that not all citizens were "necessarily" voters nor all voters necessarily citizens.
Rogers Smith has described Minor as "reinforcing the privatistic orientation of American political thought." The opinion continued the relegation of women to a separate, legally disabled sphere. Under its aegis, women were in a familiar double bind -- told we were citizens but citizens of a special sort, possessing not all of the attributes of citizenship that men had. Contemporary legal scholars have compared the right to litigate with the right to vote. Women were disabled in both respects. While constitutional amendment has been able to overturn the rule of Minor, its intellectual premises -- women as suspect participants in full political citizenship -- remain. 2. Domestic Relations Excepted
Rightmire's initial inclusion of the debate about women's citizenship is not followed by subsequent writers of books for students of the federal courts. While "citizenship" in the context of diversity litigation remains a subject of inquiry, women's citizenship was and is not much explored. However, in one arena, women (in their capacity as wives, struggling to exit one version of the family) persist in federal courts jurisprudence. Several contemporary casebooks refer to the series of cases in which the federal courts decline to exercise jurisdiction on the basis of what has become known as the "domestic relations" exception to federal court jurisdiction. While often explained as an exception to diversity jurisdiction, the domestic relations exception also has been used to oust the federal courts of jurisdiction in domestic relations cases involving foreign officials and to prevent federal courts from hearing tort cases.
The "domestic relations" exception is traced to dictum in an 1859 case, Barber v. Barber, in which Justice Wayne for the majority "disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony." Dissenters in Barber linked that jurisdictional disclaimer to English equity jurisdiction, described as similarly lacking power over "the subjects of divorce and alimony." The English limitation on jurisdiction over divorce (to the extent it existed) was in turn tied to religious practices under which marriage was not subject to dissolution. From the words of the majority and dissent came the conclusion that federal courts have no authority over cases, otherwise jurisdictionally proper, in which the subject of dispute is divorce, alimony, or child custody.
The actual holding in Barber was that the federal court, in a diversity jurisdiction case, could hear the claim of a husband's failure to pay alimony awarded by a state court. In this sense, the case was a stunning victory for the relatively small number of wives who could first obtain recognition of their separate legal status and who also had the resources to pursue enforcement of obligations of support. Subsequent readings of Barber have recast it by using the disclaimer of jurisdiction over divorce itself and by distinguishing the powers of federal territorial (as contrasted with article III) courts in family law. The holding, which concluded that "[a]limony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is," has been ignored. By 1890 in In re Burrus, the Court claimed that the "whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."
The explanation, provided by the dissenters in Barber, of why the federal courts lacked jurisdiction provides insight into nineteenth century views about the respective spheres of the state and federal governments:It is not in accordance with the design and operation of a Government having its origin in causes and necessities, political, general, and external, that it should assume to regulate the domestic relations of society. . . . If such functions are to be exercised by the Federal tribunals, it is important to inquire by what rule or system of proceeding . . . they are to be enforced. . . . The Federal tribunals can have no power to control the duties or the habits of the different members of private families in their domestic intercourse.
The question, of course, is whether this explanation remains vital at the end of the twentieth century.
The assumption of lack of federal judicial power over personal relations has been eroded by litigation over the course of this century about reproduction and federal benefits, both of which structure relations among "different members of private families in their domestic intercourse," Further, that assertion ignored nineteenth century federal efforts to control polygamy and sexual relations, which in turn affect family relations, albeit nontraditional ones. In 1862, 1882, and 1887, Congress outlawed polygamy. Fragments of these laws still remain. While this legislation was directed at federal governance of the territories and was implemented by the federal courts in their capacity as "territorial courts" (thus acting as "state courts" for these purposes), other federal legislation did bring the federal courts into the governance of multiple marriages in the states. The "Mann Act" -- involving federal regulation of sexual activity -- was used in prosecutions of individuals who transported women in "interstate commerce." In one of the cases prosecuted under the Mann Act, the Court expressly endorsed Congress's authority to "defeat what are deemed to be immoral practices; the fact that the means used may have the 'quality of police regulations' is not consequential." Despite a claim of noninvolvement in interpersonal relations (some of which might bear the title "family"), federal law and federal courts have, on selected occasions, taken on these issues.
The Barber majority did not fashion an opinion that had to be read as disclaiming power over relations among former family members. The opinion discussed at length the capacity of a legally separated wife to have a separate domicile, qualifying her as a diversity litigant capable of enforcing a debt, and the dissent objected to the exercise of that power. Since Barber, the article III federal judiciary has from time to time exercised its jurisdiction in certain spheres of "family life" -- taken by virtue of constitutional interpretation, congressional enactment, and federal common-law interpretation. Acknowledgement of this jurisdiction is necessary for accurate description of the respective spheres of federal and state governmental control over interpersonal relations. While federal jurisdiction is by no means comprehensive, it has been a force in family governance.
But the power (and appeal?) of the rhetoric of federal noninvolvement has been so strong that the presumption of disengagement persuaded the Supreme Court to disavow jurisdiction of article III federal prime example, Ohio ex rel. Popovici v. Agler, is a case involving a foreign official living in the United States. In Popovici, federal court jurisdiction was asserted on the grounds that one of the litigants, John C. Popovici, who was stationed in Cleveland, Ohio, was a "vice-consul" for the "Kingdom of Roumania," and as such, a party over whom the federal courts had jurisdiction "exclusive" of the states. When Helen Popovici sued him in state court for "divorce and alimony," he claimed immunity from suit on the grounds that the federal courts had exclusive jurisdiction. Writing for the Court, Justice Oliver Wendell Holmes stated that, even when meeting the requirements for federal jurisdiction, "domestic" disputes were not to be heard by the federal courts. While noting the possible foreign relations implications, Holmes relied on Helen Popovici's "position" as a United States citizen, and thus invoked the court-made rule that the federal courts did not speak to the issue of the termination of marriage.
Holmes's view might be understood as rejecting claims of immunity from suit by foreign officials, and thereby as enabling women (assumed to be the spouses of a male corps of "ambassadors, other public ministers . . . counsuls or vice-counsuls") to have access to state courts, and thus as a victory for women. But he also blocked women from access to the federal courts. Holmes had another option. Had he acknowledged even their limited role as territorial courts in domestic relations, Holmes could have permitted federal courts to consider divorce actions when foreign officials were parties. This struggle about jurisdictional boundaries in family law cases used to be a part of the literature of federal courts. Popovici, like Happersett, was available to prior generations of federal courts students. In a 1931 publication, Cases and Other Authorities on Federal Jurisdiction and Procedure Felix Frankfurter and Wilber Katz entitled a section "Limitations on Federal Jurisdiction in Probate and Domestic Relations," and included the text of Popovici.
The point here is not that federal law in fact governs all aspects of family life. Reviewing the occasions upon which the federal courts have exercised jurisdiction over family relations, one does not unearth a comprehensive federal law of domestic relations. Rather, one finds a pattern of interaction between the national government and individuals, some but by no means all of whom reside in federal territories, about discrete issues relating to family life, marriage, sexuality, and economic relations. When this history of sporadic federal intervention is coupled with the many contemporary federal laws that affect and regulate family life, the idea that family law belongs to the states becomes problematic.
On some occasions, federal courts have deferred to state courts and declined to hear "domestic relations" claims. In other cases, federal courts take "domestic" issues to be part of their jurisdiction. In federal family law, one finds a series of abstention doctrines, akin to the many other abstention and comity doctrines that form the bases for a vast literature on federal and state jurisdictional lines. Indeed, the whole of the Barber opinion is an exegesis on roles -- of state and federal courts, of communities and the nation, of women as wives and men as husbands. The majority opinion is an early (1859) statement of national courts' powers, as well as of women's rights. The subsequent construction of that case as about the disavowal of federal court authority, and the overlay of congressional regulation of family life might be a basis for teachers and theorists of the federal courts to discuss the appropriate allocation of authority between state and federal court systems, a centerpiece of federal courts' scholarship and teaching.
But instead of the presence of this issue, one finds silence. Only one contemporary casebook of which I am aware reproduces a case that is about the "domestic relations" exception. The rest, like many of the earlier casebooks, either mention the issue in textual comments, in notes, or not at all. Further only one other teaching book notes the history of married women's domicile as linked to that of their husbands and questions the constitutionality of that rule in light of recent cases on women's rights.
Of course, only in 1992 has the Supreme Court raised the doctrinal issue again by granting review in the Ankerbrandt case. Moreover, over the course of a century, interest in the legal questions posed by domicile and diversity jurisdiction has declined, as commentators urge the abolition of diversity jurisdiction and as other issues take center stage. The relative silence exemplifies the view that the issues of domestic relations and married women as domiciliaries in their own right are simply not high on the list of items to be "covered" when teaching about the already-too-vast materials within the "federal courts canon."
But there is something deeper at work than simply too many topics to discuss in a semester of "federal courts" and too many examples of abstention to use. Women and the families they sometimes inhabit are not only assumed to be outside the federal courts, they also are assumed not to be related to the "national issues" to which the federal judiciary is to devote its interests. Jurisdictional lines have not been drawn according to the laws of nature but by men, who today are seeking to confirm their prestige as members of the most important judiciary in the country. Individual problems move lower on the federal courts' agenda. Dealing with women -- in and out of families, arguing about federal statutory rights of relatively small value -- is not how they want to frame their job. As a consequence, while present -- in federal statutory, administrative, common, and constitutional law -- the interaction between federal courts and women is not a subject of discussion. And, when possible, federal courts divest themselves of "family issues."
C. The Image Created
To summarize, some of the early casebooks and treatises about the federal courts mentioned women, as disabled litigants, without juridical voice. In early teaching materials, court decisions, about whether women were "citizens" and court-made limitations on federal jurisdiction over domestic relations, were topics of discussion. "Early" Annual Reports about the federal courts also made note of women in a few instances. More recently, women have become less visible in writings about the federal courts. An assumption of egalitarian treatment operates as a justification for an unwillingess to inquire into how gender affects adjudication. Given the construction of domestic relations as out of the jurisdiction and concerns of the national courts, it is not surprising that women, so often identified in their roles in families, were similarly understood to be only obliquely related to the federal courts. These court-made jurisdictional rules and a limited scholarly interest in them support an impression that there is something in "the nature of federal law" that keeps "gender bias problems to a minimum." Such rules also enable the current unembarrassed efforts by federal judges to resist jurisdiction over civil rights claims motivated by gender. Reports about the federal courts also do nothing to point to women as litigants and workers; equal employment data are not placed in the principle Annual Reports but in a separate unpublished document, circulated upon request.
Instead of proving the actual absence of gender bias, reviewing the materials of the federal courts supports the opposite conclusion. These court-made rules and reports, coupled with a scholarly jurisprudence that does not challenge the assumptions of the exclusion of family concerns from the federal docket, demonstrate that in the very "nature of federal law" are lines of jurisdiction, doctrine, and scholarship that marginalize the "domestic" sphere, linked in this culture to women.
CONCLUSION: THE IMPLICATIONS OF PRESENCE
A. Sharing the Field
Pointing out links between federal law and families raises a question, traditional for federal courts scholars. While not discussed by federal courts jurisprudence, a complex mosaic of federal regulation of economic and social relations now overlays state laws on divorce, alimony, and child support. What is to be made of this fact of joint governance of the field? Because I hope scholars of federal courts developments -- shaped by different images of what is on the national agenda that federal courts implement and adjudicate -- might take federal courts' authority over family life into account. The central question is what "business is the federal business," and it is time to answer this question by recognizing that there already is joint federal and state governance of an array of issues, from land use and torts to families. Once understood as a joint endeavor, the next issue is how to allocate authority.
A first possibility is that federal court involvement in family life is bad, per se, at a structural level. This claim takes seriously the arguments made in the many cases espousing (slight pun intended) state control over family life and fearing that the federal courts would become hopelessly "enmeshed" in family disputes. Under this vision, the states (and Indian tribes) as smaller units of government are closer to "the people" and thus a more appropriate level of government to determine matters affecting intimate life. matters affecting intimate life.
Possible justifications for this view exist. Contemporary invocations of the domestic relations exception discard arguments based on ecclesiastical authority, the alleged lack of jurisdictional diversity between married couples, and the claim that divorces lack monetary value -- all in favor of a "modern view that state courts have historically decided these matters and have developed both a well-known expertise in these cases and a strong interest in disposing of them." Whether based in nineteenth-century or twentieth-century conceptions, the claims of affiliation and expertise require consideration. "Communitarianism" has strong adherents in contemporary debates on political theory; respecting groups' self-constitution may entail state governance of the family. Further, the existence of some form of an exception to federal court jurisdiction based on probate reveals another justification for state control -- an implicit sense of marriage as a status existing within the state's borders and an ongoing link between sovereign authority and territorial borders. Holding aside the ever-present question of boundaries, doctrine might shift in a variety of ways when ideological claims about the relationship between federal courts and family are revised.
First, one could insist that, despite recognition of federal laws of the family, the claim of deference to state governance remains strong and, as a matter of doctrine, complete abstention (a form of reverse preemption) is desirable. To the extent recent federal law in bankruptcy, pensions, and benefits law points in the other direction, that erosion should be stopped -- by legislation or judicial interpretation. But were one to really press this claim -- that states are specially situated and should be controlling family life -- one would not seek only to cabin the federal courts. This position would also require urging Congress and agencies to avoid defining families by rewriting statutes and regulations to incorporate state law, so as to permit state governance of interpersonal relations. An array of federal statutes would have to incorporate state definitions of families, and what would be lost in uniformity and national norms would be gained in recognition of the special relationship of states in defining family life.
Alternatively, one might instruct the federal courts to adopt a somewhat weaker form of deference, reminiscent of eleventh amendment doctrine and conscious of the many instances of congressional silence. Under such a rule, it would be for the Congress and not the federal courts to decide when state governance is exclusive. Absent express congressional legislation preempting state authority, federal courts would permit state rules to govern whenever issues relating to family life are raised. The cases involving federal pension and benefits laws, in which federal courts have acknowledged states' roles yet held that congressional intervention overrides the presumption of state governance, could be read as exemplifying this approach. One thus might have a "domestic relations" exception to diversity jurisdiction, in which no federal claim is presented, and ask in all federal question cases: what law has Congress instructed the federal courts to apply?
Yet a third alternative is to have selective federal court interpretation of congressional silence as a basis for federal law to override state law. For example, federal courts could construe silence as permitting state laws to govern except when special federal interests (such as millitary benefits) are at issue. All of these doctrinal positions rely on the view that states are situated differently from the federal government in family life; as a consequence, federal courts should prefer state-based adjudication and defer to the political legitimacy of state decisions in this sphere.
A different conception rejects a view that the states are the embodiment of communities that legitimate state governance of intimate life. While a few states may be relatively homogeneous, the vast majority have no special claim to a communitarian vision. Therefore, federal court involvement in family life is not bad, per se, as a matter of federalism. Nonetheless, federal court jurisdiction might still be undesirable, given federal judicial history -- either of noninvolvement or of disclaimers of such involvement with domestic life. Here the question of the "quality of the federal bench," as well as that of the "nature of federal law," reemerges. Arguments in support of this approach could be tied to two other strains in the case law claiming a "domestic relations" exception to federal court jurisdiction. First, in light of this "time-honored boundary," the federal courts lack the requisite knowledge and "are not, as a matter of fact, competent tribunals to handle" typical domestic relations cases. Translated, the claim is that federal judges are neither selected on the basis of knowledge of family law nor trained, once judges, to become knowledgeable and also lack support staff who might mitigate these problems. Moreover, given the composition of the docket, federal courts would be unlikely to gain expertise because their involvement would be sporadic. Second, the federal courts are too important or the issues of family law too unappealing, trivial, and "non-national" for federal court decisionmaking. The competency claim, at least in the subset of family law dealing with interpersonal familial relations, has some appeal. In the words of one federal court, some questions are:too hard and too remote from the experience of federal judges . . . . Our experience and sense of fairness teach us that this is not a case where the application of a federal rule . . . is likely to provide the best answer. We must rely on a judge in a court of family law -- with its more flexible standards . . . -- to balance the equities and seek compromises that best accommodate the interests of the parties.
Feminism similarly counsels attention to experience, to the knowledge gained by first-hand understanding of problems. But the imagined state competence is undermined to some extent by the many state gender bias task forces that found state judges were biased in this very area of the assumed expertise -- family law cases. Further, some of those reports also detail a parallel devaluation of family law. Trivialization of family life is a problem that defies jurisdictional boundaries. While the federal courts may lack the experience, the lesson from state bias studies is that experience alone is insufficient.
This disheartening news from state courts does not, however, end the discussion. To the extent federal judges think family law beneath them or not interesting, they either will not or cannot do it wisely. But that problem goes beyond the question of whether the federal courts might take on new areas of jurisdiction and rewrite the "domestic relations" exception. Many federal statutes already involve federal judges in family life. The express disinterest or claimed incompetence in domestic relations may spill over to disdainful or uninformed decisionmaking in cases pending under current doctrinal parameters. To the extent that such federal judicial disinterest is widespread, one might urge Congress to rewrite statutes -- to locate enforcement of some of its legislation that involves family life in the state courts, which (according to federal judges) are better equipped to handle them.
Yet a problem remains. The current hierarchy stipulates the federal courts as most powerful; the supremacy clause confirms that sense of authority. Further, federal courts theorists might affirmatively argue that federal courts are needed in this area -- either because of their special capacity to protect the politically disfavored or because federal sovereign and administrative interests are at stake. While neither the appeal to the community envisioned by the claim of closeness of the state to the family nor the concern about attitudes and knowledge of federal judges should be discounted, the "inevitability of federal involvement" in family life remains, as does a sense that the rejection of that role by federal courts reconfirms the marginalization of women and families from national life.
Federal involvement emerges here, as it does in torts, land use, health regulation, criminal law, and other areas, because of the wealth of interactions that make the imagined coherence of the very categories "federal" and "state" themselves problematic. Whether looking at the problem from the top down, and seeing "joint governance" or considering the issue from the perspective of individuals and speaking of "membership in multiple communities," the point is the same: an interlocking, enmeshed regulatory structure covers the host of human activity in the United States. There is no a priori line one can invoke to separate legal regulation into two bounded boxes "state" and "federal." Uniform state laws demonstrate the limits of state court borders and the need for regulatory structures that bridge them. State and federal court interpretations of "family" are unavoidable.
Thus, a third model of federal/state relations, one named by Robert M. Cover and T. Alexander Alienkoff as "dialectical federalism," becomes appropriate to explore. Their context was joint federal/state governance of criminal law, by virtue of federal courts' occasional involvement in habeas corpus petitions filed by state prisoners. Cover and Alienkoff's aspiration was for a dialogue in which state and federal judges, working on the same problems from differing perspectives, might enhance the development of norms and obtain new understandings by watching parallel systems generate legal rules. In this context, overlapping issues -- of defining families, of how many heads of households may exist, of whether to support co-parenting obligations, of how savings and pensions are to be allocated among the workers who comprise the family unit, of what remedies should be available for violence occurring in the home -- provide occasions for overlapping decisionmaking. To the extent that two court systems are populated by judges empowered by different institutional arrangements (life tenure, appointment, and election) and working in contexts with differing ideologies, their simultaneous and, to some extent, redundant exploration of issues of family life provide opportunities for confirmation of shared norms, as well as for dialogue about the disjunctions that emerge.
Yet a fourth option is to imagine a world of literal joint work and pooled resources. Rather than choosing either federal or state court as the dominant jurisdiction or having them work sequentially in conversation, why not have them work together, simultaneously? In some large-scale tort cases, in which state and federal courts have overlapping jurisdiction, federal and state judges have literally shared jurisdiction -- sitting together and issuing joint orders. Proposals for "pooling resources" and sharing information, as well as for joint governance, have been put forth in the criminal context as well. Transferring these insights to the family law arena, one might imagine a federal trial judge (aware of state court decisionmaking about particular litigants in a "family" case in which federal issues also arise) seeking the kind of intercourt cooperation used in some of the mass torts cases. But to devise either such informal or formal coordination requires first that both state and federal judges acknowledge the legitimacy of their exercise of jurisdiction and second that they perceive the issues at stake as worth the effort and time.
These are some of the doctrinal possibilities, but potentially creative opportunities cannot be taken under current circumstances. Given the history of federal judicial disdain for family law issues, federal judges have been reluctant to acknowledge their capacity to work in this area. While some who believe that the federal judiciary is now hostile to civil rights enforcement might be eager to hide behind any label that divests federal courts of jurisdiction, for me the "domestic relations" exception no longer suffices to code activity as outside federal court authority. The burden of reasoning (imposed in other areas when federal courts decline, in the name of comity and "our federalism," the exercise of jurisdiction) is required.
B. A State-Federal Dialogue on Gender
Doctrinal shifts cannot happen without a concomitant documentation of women's presence as federal litigants, of women's presence as federal workers, mostly at the lower echelons of the courts, and women's absence from contemporary materials about the federal courts, all of which might result in sustained inquiry about discrimination against women in federal courts. While state court gender bias studies have assumed women's presence and moved on to explore the implications, studies in the federal system will have to trace women's presences and absences to understand the operation of gender in the federal courts. Federal courts will have to confront not only the data about workplaces, courtroom interaction, and substantive law, but also the very nature of their jurisdictional rules and the separate spheres ideology to which those rules are wedded.
Federal court inquiry into gender bias may take the courts deeper into an understanding of their own limits, for part of that inquiry requires asking about the past disinterest in raising such questions. I began by considering why states moved ahead of the federal courts in gender bias studies, but thus far I have answered only by explaining why the federal courts were behind. I can only suggest paths of inquiry about what, in the "nature" of state law, jurisdiction, and ideology or in the selection of state judges, enabled those judiciaries to be more responsive to concerns of discrimination. Perhaps state judges are more open to perceiving themselves as in need of education (in general) than are article III judges. Perhaps state judges, many of whom are elected, are more concerned about the administration of justice and the perceptions of justice in their courts. Perhaps state judges are more committed to equality norms. Perhaps the activity of ruling on events so vividly bound up with gender construction generated interest. Perhaps the work did not initiate with the judiciary but from outside it. Because state and local governments include more women and men of color and white women, those voices might have been heard more easily. Perhaps law firms, public sector lawyers, law professors, and litigants have played critical roles. Perhaps the women and men who organized to oppose discrimination in and by courts thought state judiciaries more accessible than the federal courts.
Federal court investigation of gender permits not only self-reflection and structural comparisons with state court systems but also an opportunity to decide what aspects of gender to consider. Once the troubling equation of "women" with "families" and the accompanying assumption of the absence of family matters from the federal courts are underscored, the question of what stance to take about the linkage of women and family life emerges. Women, by law, have been specially disabled when in families; until relatively recently, with marriage came the loss of a woman's juridical voice. Thus, linking women to their roles in families is fair when seeking to understand the impact of many laws on women.
However, families are by no means the totality of women's existence nor of their relationship to law. Moreover, the world of "domestic relations," equated in jurisdictional rules with issues of heterosexual marriage, support, and child custody, and framed by implicit assumptions about class and race, is itself too narrow. Domestic relations encompass much more, including the interaction between federal and state economic and constitutional regulation of the relations among current and former family members. Those coming from the perspective of family law as an academic discipline recognize that federal law now "mandate[s] nationally uniform, federal answers to many basic policy issues in family law." However, federal courts jurisprudence has not yet seen through the nineteenth-century layers (women in families, families constituted narrowly, state courts' governance of families) that continue to obscure twentieth-century federal court involvement with the family.
But the federal courts do not alone shoulder the responsibility for having failed to see the changing governance of family life. Not only have federal judges and federal courts scholars assumed the absence of federal laws of the family, state courts have claimed a corresponding special relationship to family life, and that claim is grounded in both practice and ideology. While I have spent many pages emphasizing the ways in which state and federal courts share control over family life, the purpose was not to conflate the two. Federal judges do not regularly decide the custodial relations of children of divorcing parents; federal judges do not see many of the problems common in juvenile detention; and federal judges do not determine adoption or the rules, at first instance, of the allocation of property at divorce.
Moreover, gender bias studies in state courts themselves have assumed and underscored the special relationship between state law and families. Although gender bias studies are relatively new, a "tradition" has emerged, in large measure guided by a 1986 Manual for operating gender bias task forces. One aspect of that effort is heroic. All of these task forces break with the conventional understanding of the administration of justice in the United States, which has been reluctant to consider discrimination by the legal system against categories of individuals and its effect on individual cases. While invoking the aspirations of impartial justice, gender bias task forces challenge that assumption and obtain admissions by senior court officials of partial justice.
But, at the same time and perhaps in part because of the nature of the challenge made, state task forces have kept a limited focus; much of the work is about women in families. That Manual highlights topics to be addressed by several state task forces; in addition to courtroom interaction and the court as employer, the substantive legal issues proposed are "domestic abuse," "alimony," and "juvenile justice." State task force reports echo that emphasis. All of the chapters of Maryland's report (other than those dealing with courtroom interaction, selection of judges, and treatment of employees) address issues of domestic life and violence. Connecticut's Task Force created subcommittees on courtroom interaction, women attorneys, public hearings, and court administration; the areas of law addressed were "family law" and "domestic violence." Utah's and Nevada's Task Forces have taken similar approaches. While several state reports (particularly the more recently published ones) have pushed beyond these parameters, to consider civil damage awards, employment law, prostitution, sentencing, correctional facilities, and court awarded attorneys' fees, even in those reports the bulk of the discussion remains on domestic and criminal law. While federal judges might have seen the obviously shared concerns about courtroom interaction, treatment of women lawyers, and employment, both the Manual's topics and reports from many states may reinforce the federal judiciary's sense that the substantive law covered as "women's problems" are not ones relevant to the federal courts.
Thinking about gender bias in the federal system may help the state court task forces to move beyond their emphases on families, criminal justice, and violence. While laudable to start with issues central to the daily experiences of women, state task forces have sometimes stopped with the placement of women in families and have not explored bias much beyond those parameters. The social construction of gender and the intersections of race and gender are not uniformly pursued; most data are provided about "women" rather than about groups of women identified by race, class, and sexual orientation. Families themselves are understood in only traditional terms. Thus far, state task force reports have not taken on the interdependency of gender bias and of discrimination based on sexual orientation, which often cabins women and men in stereotypical roles.
The decisions to approach gender bias by focusing on women in traditional roles have been founded not only on the import of legal control over families to women's lives but also on the relative ease of studying such issues. Keeping women in families remains politically safe and sometimes palatable. The task forces have not chosen the "oppression of women" or the "patriarchy" as their topics. Rather, the focus has been on courtroom interaction, the court as employer, and on the substantive laws of the family and criminal justice. Given the family orientation of state gender bias task forces, work on gender bias in the federal context -- seen to be far away from family life -- may provide an opportunity to locate women in many settings, of which the family is only one. Further, given the centrality of civil rights litigation to the federal court persona, federal gender bias work might be able to focus attention on the interaction between race and gender.
To the extent such an opportunity exists, impressing the federal courts that they, like the states, deal with family law may prove to be a diversion. Federal gender bias task forces might be led to mimic state efforts and document women's worlds as family worlds, rather than expand both the range of topics addressed (to look at women as litigants in environmental cases, as consumers, as creditors and debtors in bankruptcy, as tort victims and alleged harmdoers, and as plaintiffs and defendants throughout the civil and criminal docket) and the women considered (to understand the distinctive and the shared experiences of straight women, lesbian women, and women of color).
This acknowledgement of the full range of women's lives (and the disputes that result) must include public and private worlds. Federal jurisprudence's rejection of jurisdiction on the domestic side limits its willingness to inquire about the effects of federal law on women in all aspects of life. That ideology haunts contemporary debates, once again framed in jurisdictional terms, about women and the federal courts. Today's leaders of the federal courts reaffirm their commitment to a legal system in which they have no obligation for "domestic relations." In 1991 and 1992, spokespersons for the federal judiciary are lobbying hard against the federal jurisdictional provisions of the Violence Against Women Act that would give parties "federal questions" and thus presumptive access to the federal courts. These same spokepersons stand silent about the Act's provisions to educate them about gender bias.
It is not happenstance that these disputes are about federal courts, women, and jurisdiction. Women's unexamined presence in the law and jurisprudence of the federal courts bespeaks hostility to seeing women as legitimate participants in the national world -- in this context represented by the federal courts. The debate about the pending legislation and the arguments about the pending cases will be affected by disclaimers from federal judges of knowledge, expertise, experience, and competency in making decisions that affect family life. Federal courts' jurisprudence helps hide both federal court jurisdiction over families and the role the federal judiciary has played in limiting access to federal courts. While contemporary federal judicial distress about congressional efforts to enlarge federal courts' jurisdiction is in no way limited to women's rights, no such "gender-neutral" explanation is available for the failure of the federal judiciary to endorse the provisions of pending legislation that fund judicial studies of and education about gender.
Attitudes of the federal judiciary towards family law and towards women's roles in the federal courts will not shift without self-conscious decisions to reconsider both past and present. The federal judiciary and its commentators must reclaim the history heretofore denied about the ongoing relations of the federal courts with family life. Federal judges need to turn to state courts for guidance and insight in exploring both family issues and the bias that surrounds them. Federal judges will also need support, from scholars of the federal courts, in development of theories of jurisdiction that incorporate and delineate roles for state and federal legislatures and courts as they work simultaneously on family life. We need to take up the question of how federal and state courts share jurisdiction over the family, just as these courts share jurisdiction over civil rights, criminal law, land use, and other substantive areas.
Exploration of the "nature of federal law" thus illuminates the multitude of roles for women in federal courts and the many roles of the federal courts in women's lives. The imagined stability of state jurisdictional control over family law is thus shaken. What remains is the difficult task of exploring the myriad ways in which the "nature of federal law" is itself a source of bias against women and the ways in which the "quality of the federal bench" fails to cushion that bias. The shared work of clarifying how such bias works, in both state and federal courts, awaits.
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