I recently attended a law teacher’s conference where a speaker made a presentation on southern feminism and noted that southern novels featuring women characters tend to present law and the legal system as disconnected from the realities of women’s lives. Among the examples cited by the speaker was Sue Monk Kidd’s novel The Secret Life of Bees, in which the main character, a young girl, flees an abusive home life with her nanny, a woman who has been jailed in an incident of racial violence inspired by her valiant effort to register to vote and her implacable failure to subjugate herself to a group of vicious white men. Throughout the novel, law and legal institutions are rarely viewed as sources of protection for any of the protagonists; instead, law and legal institutions for the most part are either the source of oppression or persecution or their facilitator. Despite the fact that the nanny’s ability to register to vote is due to law – the adoption of the Voting Rights Act of 1965 – her actual ability to do so is not. Law leaves her to the reality of life in the south in the 1960’s which means that she is beat up and humiliated by a bunch of white guys, on her way to register to vote, and the police lock her up as a result of the beating. While in jail, her assailants have further access to her, so that she ends up in a hospital ward. The solution to this problem is for the nanny and her young charge to flee jail and the community in which they live. A different way of describing this flight is to suggest that what the protagonists do is to discharge their own kind of justice based on their own assessment of the justice and fairness of the situation, and their desire to ensure their own survival.

This appeared to be a remarkable aspect of southern literature to the speaker, but to me it sounded in absolute reality not reflecting simply a southern reality but a national reality, and an aspect of how law and women have interacted in the United States since colonial times, and in the global context, for a far longer period of time. That law was disconnected from the reality of women’s lives, and, instead, might be something to be actively avoided, is a theme pursued by too many American authors to name here, and given the lack of involvement and inclusion of women in the development of law and legal institutions for much of the country’s history, should not be too surprising in the context of past times.

What should be surprising and troubling is the fact that law and legal institutions continue to be disconnected from the reality of women’s lives to an extent that should be incredible today. I give two examples of this phenomenon, first, a recent United States Supreme Court decision from this past term insulating law enforcement officers from liability for refusing to enforce or respond effectively to violations of domestic violence protective orders; second, President Bush’s recent decision to nominate Judge John Roberts, of the United States Court of Appeals for the D.C. Circuit, to replace the first woman appointed to the United States Supreme Court, Associate Justice Sandra Day O’Connor.

I’ll deal with the easy one first. Nine justices sit on the United States Supreme Court and up until this year, only two of the nine were women. Over half the population of the United States is composed of women; simply as a matter of representational democracy, that only two – let alone one – of the seats on the third branch of government are occupied by women should give our society serious discomfort if not outright panic. The Supreme Court is the institution given power to interpret and enforce in cases and controversies the Constitution of the United States, including the Bill of Rights, our own domestic statement of fundamental human rights. That this institution has been insulated from meaningful participation by women in significant numbers should give us pause, if not shame. This is not to diminish or take away in any way the substantial accomplishments of the two women to have served on the Court – Justices O’Connor and Justice Ruth Bader Ginsburg. But just as the exclusion of women from legislatures, the bar, the franchise, the jury room and the courts prior to the 20th century, and in some cases until the latter half of the 20th century, ensured that law and legal institutions would remain disconnected from the lives of women, so too does maintaining the third branch of the federal government as an institution that does not admit of equal participation by women today.

This leads me to my second example – Town of Castle Rock, Colorado v. Gonzales. This case was decided this past June. An overwhelming number of justices (7 to 2) came to the conclusion that a woman with a restraining order against her estranged husband preventing him from visiting with the children except by prior arrangement for short periods of time, could not sue the police for refusing to respond when she reported that her husband had grabbed their children and taken them away without permission. The protective order required that police arrest the individual if he violated its terms. Ms. Gonzalez attempted at least four times, over the course of the ten hour ordeal, to get the police to enforce that protective order, to investigate, arrest, find her estranged husband and abducted daughters. Her estranged husband eventually showed up at the police station, opened fire with a semi-automatic handgun he had purchased, and was killed when the police fired back. In his truck were the bodies of all three daughters. Ms. Gonzalez filed suit against the police department under a federal civil rights statute giving individuals the right to file a claim against state actors that violate an individual’s civil rights. In this case, Ms. Gonzalez contended, her and her children’s civil rights had been violated because the town had an official policy or custom of failing to respond to complaints of restraining order violations and had a policy of tolerating non-enforcement of restraining orders. The Court rejected her claim, making it clear that federal law will not be a source of protection for domestic violence victims; instead, any assistance to be rendered to victims of domestic violence will have to come through the states. Whatever the merits of the legal reasoning that led a majority of the Court to conclude that Section 1983 of Title 42 of the United States Code did not provide a remedy for Ms. Gonzalez, the case clearly speaks to law’s disconnectedness from the reality of women’s lives. First, the case reminds us that no matter how successfully women may influence the course of legislation, like the statute at issue in the Castle Rock case, providing for mandatory arrest of violators, enforcement of those statutes and mandates is still, largely, a male affair, left to the vagaries and policy choices of police departments, still overwhelmingly male. Second, the case tells us that victims of domestic violence who have obtained protective orders are left to the whim of local law enforcement which may or may not be receptive to the needs of such victims. Since most victims of domestic violence are women and children, again the case speaks to us of the disconnectedness of law from women’s lives. Legal institutions in Castle Rock, like the local police department, are not to be trusted with the charge of protecting women’s lives.

Ensuring the presence of a meaningful number of women on the Supreme Court will not necessarily change the way individual justices vote on a particular legal issue; Justice O’Connor was in the majority in the Castle Rock case. It will further secure the legitimacy of the institution, however, for when a sizable portion of the population, still demarcated in the society by gender, is excluded from that institution, the legitimacy of that institution to speak to issues which impact primarily on that gender is severely undermined.

The above is submitted by a Loyola law professor who teaches constitutional law and gender discrimination law.

M. Isabel MedinaFerris Family Professor of LawLoyola University New OrleansSchool of Law