For the first time, a Supreme Court opinion uses the word "feminist."

The case is Coleman v. Court of Appeals of Maryland, which came out this year on March 20th. There are 19 other Supreme Court opinions where the word "feminist/s" appears, but only in the name of an entity like "the Feminist Majority Foundation" or the "Feminists for Life of America" or (once) in the name of a cited law review article.

The article is "The Victim In a Forcible Rape Case; A Feminist View," cited for the proposition that "Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage," in the case that says it's cruel and unusual punishment to impose the death penalty for rape. Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"? Often? Accompanied? Rape is a physical injury! "Can also inflict mental and psychological damage"?! Can? Do you really have to hedge it?

Anyway, the actual use of the word "feminist" occurs in a dissenting opinion written by Justice Ginsburg. She is explaining why she thinks that Congress had power under §5 of the 14th amendment to enact the self-care provisions of the Family and Medical Leave Act of 1993. To fit the §5 doctrine, the law needs to be portrayed as some kind of remedy for a 14th Amendment rights violation, but both males and females use sick leave, and getting sick leave doesn't seem to be about alleviating unconstitutional sex discrimination.

But Ginsburg says the law had roots in a California effort to require pregnancy or childbirth leave to women:

The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.... “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate.

So the first time a Supreme Court Justice uses "feminist," she's talking about 2 types of feminists, the "'equal-treatment' feminists" and the "'equal-opportunity' feminists." Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women. For example Prof. Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment."



By the way, the word "feminism" only appears in one Supreme Court opinion, and that was back in 1968, in a case called Ginsberg v. New York. (Ginsburg... Ginsberg... just a coincidence.) But the word appears only in quoted material in the appendix to a dissenting opinion by Justice Douglas (who didn't agree that the state could prosecute a man for selling a "girlie" magazine to a minor). Douglas quotes J. Rinaldo, "Psychoanalysis of the 'Reformer'":

In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, "The Purple Mother," all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the theater, the same deformed and inverted sexual life.

Homo-sexualism may not be openly admitted, but the "sissy" and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritanism. As one grows so does the other. Neither seems to precede or follow.

Crazy stuff. Dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures....

Man, I need to do word searches in the Supreme Court opinions more often.

Dog dinners. I did not go looking for that.

Should psychiatrists offer opinions about the mental conditions of various characters in the news?

The official rule of the American Psychiatric Association is that they can speak generally but it's unethical to give a professional opinion about an individual. The rule grew out of a case involving Barry Goldwater:

Just before the 1964 election, a muckraking magazine called Fact decided to survey members of the American Psychiatric Association for their professional assessment of Senator Barry Goldwater of Arizona, the Republican nominee against President Lyndon B. Johnson....

The survey, highly unscientific even by the standards of the time, was sent to 12,356 psychiatrists, of whom 2,417 responded. ... Half of the respondents judged Mr. Goldwater psychologically unfit to be president. They used terms like “megalomaniac,” “paranoid” and “grossly psychotic,” and some even offered specific diagnoses, including schizophrenia and narcissistic personality disorder....

There were several attempts at a psychodynamic formulation of Mr. Goldwater’s character. One unsigned comment called the candidate “inwardly a frightened person who sees himself as weak and threatened by strong virile power around him,” and added that “his call for aggressiveness and the need for individual strength and prerogatives is an attempt to defend himself against and to deny his feelings of weakness.”...

Goldwater sued for libel and won, which led to the APA rule barring opinions. Obviously, it brings psychiatry into disrepute when ordinary people can see it used dishonestly to promote a political goal. But I don't see why it's so bad for psychiatric experts to speculate and opine about public figures. We the people need to think about the events in the news, and some expert opinion is helpful. Let us decide which experts are worth hearing from. The political hacks will be enjoyed or condemned as we see fit. But some analysis is going to be good. Frame it as speculation and hedge appropriately: I would need to meet with the individual to make a professional diagnosis, but here's what I can say....

If the experts don't do it, the pseudoexperts will. As for the fear of lawsuits, libel law is constrained by free speech values. Mere opinion in not libel. And public figures have to meet a high standard to prove libel.

Why then did Goldwater win his lawsuit? The linked article, by psychiatry professor Richard A. Friedman and published in the Science section of today's New York Times, says:

The Supreme Court awarded the senator $1 in compensatory damages and $75,000 in punitive damages — and, more important, set a legal precedent that helped change medical ethics for good.

Of course, any lawyer knows that the Supreme Court doesn't award damages. It only affirms the lower court's decision. But what is this Supreme Court case and how did it deal with the free speech issue? Hello? New York Times? Don't you wonder how this case would square with New York Times v. Sullivan (second link, above)? So did Justices Black and Douglas, dissenting from the denial of certiorari in Ginzburg v. Goldwater! Justice Black wrote:

This case perhaps more than any I have seen in this area convinces me that the New York Times constitutional rule is wholly inadequate to assure the 'uninhibited, robust, and wide-open' public debate which the majority in that case thought it was guaranteeing....

This suit was brought by a man who was then the nominee of his party for the Presidency of the United States. In our times, the person who holds that high office has an almost unbounded power for good or evil. The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President. The decisions of the District Court and the Court of Appeals in this case can only have the effect of dampening political debate by making fearful and timid those who should under our Constitution feel totally free openly to criticize Presidential candidates. Doubtless, the jury was justified in this case in finding that the Fact articles on Senator Goldwater were prepared with a reckless disregard of the truth, as many campaign articles unquestionably are. But, even if I believed in a balancing process to determine scope of the First Amendment, which I do not, the grave dangers of prohibiting or penalizing the publication of even the most inaccurate and misleading information seem to me to more than outweigh any gain, personal or social, that might result from permitting libel awards such as the one before the Court today. I firmly believe it is precisely because of these considerations that the First Amendment bars in absolute, unequivocal terms any abridgment by the Government of freedom of speech and press.

So the jury found that the New York Times standard was met, and the Court of Appeals affirmed. The Supreme Court declined the case, with Justices Black and Douglas arguing for greater free-speech protection.

And when I say "the New York Times standard was met," I mean the legal standard from the case New York Times v. Sullivan. I do not think the New York Times standard of journalism was met for this article!