Many theories of gendered judicial decision-making can be traced back to Carol Gilligan’s (1982) different voice theory. Gilligan (1982) finds that women tend to define themselves within a community of relationships while men define themselves as separate and autonomous. Because women view themselves as linked to others, different voice theory suggests that women tend to prioritize justice as an “ethics of care,” focusing on interpersonal relationships, emphasizing empathy and compassion, and acknowledging interdependence across community members. Men, on the other hand, prioritize justice as viewed through individualism, autonomy, rights, and rules. This difference in conceptions of justice suggests that women may perceive and apply the law differently from their male peers, especially since the law frequently adjudicates between moral dilemmas, such as reconciling competing rights.^[1] As such, women should engage with law differently and develop their own feminine jurisprudence compared to their male peers (Sherry 1986).

Yet despite its reliance on different voice theory as the basis for possible gender differences, judicial scholarship has largely avoided engaging with feminist theories.^[2] This omission has left judicial theories of gendered decision-making underdeveloped, and it potentially reinforces harmful essentialist^[3] stereotypes of women. In addition, judicial scholarship’s emphasis on positivist, quantitative methodology has also severely limited its ability to evaluate different voice theory by forcing scholars to focus on case outcomes and judge votes, rather than the qualitative, contextual, and linguistic analyses required. Feminine jurisprudence may not directly align with case outcomes, judge votes, or traditional liberal-conservative judge ideologies. Different voice theory, for example, asserts that women make decisions differently from their male peers, not necessarily that the decisions will be different in terms of outcome. Focusing solely on quantitative outcome differences thus misses the crux of this theory.^[4]

This limited theoretical engagement and reliance on quantitative measures are likely why judicial scholarship finds mixed results in gendered decision-making. For example, Johnson et al. (2008) find that women are more sympathetic to civil liberties claimants. However, Walker and Barrow (1985) find no significant difference in women judges’ decision-making when compared to their male colleagues in civil rights claims, though women appear to be more sympathetic to economic regulation (see also Segal 2000). Kritzer and Uhlman (1977), Gruhl, Spohn, and Welch (1981), Gottschall (1983), and Davis (1986) do not find any significant differences in the voting behavior of male and female judges. Yet Boyd et al. (2010) and Haire and Moyer (2015) find that women judges vote differently from their male peers in sex discrimination cases, and Songer, Davis, and Haire (1994) show significant differences between men and women in cases involving employment discrimination.

In this chapter, we incorporate ecofeminism into gendered judicial decision-making. Ecofeminism builds upon feminist theories such as different voice theory by expanding the conceptualization of women’s issues and ethics of care to include not only communities of people but communities within an ecological system. Ecofeminism offers novel insights that source potential gender differences to their roles within communities and ecological systems and offers more explicit predictions for gendered decision-making that apply to previously unaddressed areas of law: environmental cases. We qualitatively evaluate the implications of ecofeminist theory on judicial decision-making in environmental cases before the US Supreme Court. By linguistically analyzing a set of solo-authored dissenting opinions, we evaluate whether women authors differ in their language, attitudes, and framework pertaining to environmental issues compared to their male peers. In the following sections, we discuss ecofeminism and how it applies to judicial decision-making. We then offer the results of our qualitative analyses and some concluding remarks.

Ecofeminism

Ecofeminism serves as a theory where feminist thought meets ecological interdependence (Mies and Shiva 2014). Ecofeminism highlights the relationship between the exploitation and domination of nature with patriarchal^[5] societies’ exploitation and domination of women, where both are rooted in socially constructed dichotomies that maintain existing power structures (Mies and Shiva 2014). These dichotomies—man versus woman, nature versus society, civilization versus primitive nature—are derived from Western colonialism (Mack-Canty 2004). Western colonialism, which is fundamentally dependent upon environmental and labor exploitation, created the institutional structures for oppression, racialization, misogyny, indigenous erasure, heteronormativity, and poverty (Mack-Canty 2004; Tuck and Yang 2012; Gruen 1992).

For example, the nature versus culture dichotomy is a central tenet of most Western ideologies, where “civilized” man is seen as having complete domination over “uncivilized” or primitive nature (Mack-Canty 2004; Lahar 1991). Indeed, this tenet was the foundation for colonialism, where legal justifications such as terra nullius^[6] enabled Western (White) expansion and legal appropriation of “unoccupied” lands because the “primitive” Indigenous Peoples on those lands were deemed to be part of nature—that is, they were part of the flora and fauna to be extracted or exploited. Colonialism was further mandated by capitalism, which requires the perpetual extraction of resources in order to generate profits; this discourse directly informed the development of classical liberalism (Mack-Canty 2004). The necessary spread of “civilization,” and thus capitalism, mandated and justified colonization and the exploitation of the environment, which holds value solely as a provider of resources for economic gain.

Environmental extraction became the key to promoting and funding Western colonization, whereby extraction became a powerful form of domination and control—both internally and abroad. For instance, internal colonization requires the management of people, land, flora, and fauna within the domestic borders of the colonial nation to generate wealth, which is derived from land. There, labor must be extracted in order to “develop” the land (Tuck and Yang 2012). These requirements gave rise to the enslavement of African and Indigenous Peoples (Spiegel 1996; Baptist 2014; Dunbar-Ortiz 2015; Reséndez 2017), as well as current modes of control such as policing, segregation, criminalization, and minoritizing (Tuck and Yang 2012). Western colonization impacts international communities in that many nations in the Global South who rely on agricultural and mineral exports are subjected to pressures from Western nations in the Global North such that they are incentivized (i.e., forced) to become monoculture industries to satisfy Western demands for imported resources (Lahar 1991). The transition to monoculture prompts a developing country to abandon centuries-old, sustainable practices to satisfy the desires of Western nations, such as being required to use genetically modified seeds to produce the “ideal” crop, a crop that can eliminate native crop species. Becoming dependent on lithium mining, which eradicates clean water supplies, causing mass animal deaths and wreaking havoc on ecosystems, is another example of this forcible imposition of resource demand. Furthermore, this relationship contributes to colonization: these nations in the Global South internalize Western beliefs, viewing natural resources as a commodity, valued only in terms of extractable units to be exploited, and the associated value systems (Lahar 1991).

Another effect of Western colonization and capitalism is that these systems designate which forms of labor are valuable (i.e., those that are profit-generating), tie the value of people to their economic use (i.e., their ability to generate profit), and delegate gendered (and racialized) roles of labor whereby certain groups of people are relegated to particular forms of labor. More specifically, because the tenets of Western colonization place women as closer to nature and thus more “primitive,” they are relegated to the “primitive” domestic work. This work largely consists of care-related activities, such as caring for family by cooking nutritious foods, creating safe and clean households, maintaining the health of family members, raising and educating children, and so on. Women are given similar roles within communities, as well; both family and community well-being are directly dependent upon the environment, as it provides the materials for food, water, housing, clothing, and medicine. These forms of labor are not directly profit-producing, which renders women of lower value in capitalist societies (MacGregor 2004). This devaluation of women causes a significant increase in violence against women (Shiva 1989), higher rates of female infanticide (Lahar 1991), and other female mortality risks (Mack-Canty 2004). Similarly, policies related to “women’s issues,” such as education and health care, are devalued relative to the more masculine policy areas of national security and economy.^[7]

Based on these critiques, ecofeminism seeks to alter discourse and sociopolitical practices to emphasize the value of women and the environment interdependently. Specifically, ecofeminism advocates for the adoption of an ecological civic virtue that stems from women’s societal standards of care—or a politicized ethic of care (Curtin 1991). Care ethics emphasize the notion that women are the individuals “who do the caring, nurturing, and subsistence work that sustains human life” (MacGregor 2004, 58). This “barefoot epistemology” states that women’s “ways of knowing” are inherently tied to life-affirming activities; therefore, women’s relation to nature, through their labor, is drastically different than men’s (MacGregor 2004). Women are more concerned with issues of survival rather than power, unlike men, which is directly dependent upon the environment (MacGregor 2004). Women have a higher epistemic awareness of survival and protection of life; therefore, women are more inclined to protect natural resources for the continued survival of their families and communities (MacGregor 2004). Consequently, ecofeminism suggests that women have a stronger ethical approach to the survival of the environment, as their relation to nature is fundamentally different from that of men (Salleh 2017).

Ecofeminism and Judicial Decision-Making

Ecofeminism helps to bridge different voice theory and ethics of care feminist theories into environmental case law and judicial decision-making. Ecofeminism suggests that women exhibit higher awareness of survival and prioritize the protection of life; therefore, women have a stronger moral approach to the survival of the environment as their relation to nature is fundamentally different from that of men (Salleh 2017; MacGregor 2004). More specifically, because the economic division of labor places women in domestic, caregiving, and “primitive” sustenance-providing roles that are closer to nature (such as through the provision of food and water, caregiving via motherhood and extended family/community, and ensuring family/community health, safety, and nutrition), women experience the environment more directly and are more aware of their interdependence and reliance upon (a healthy) environment. Men, on the other hand, largely view themselves as separate from the environment and responsible for the “development” of environmental resources to generate wealth. As such, a woman judge should exhibit different responses to environmental issues compared to their male counterparts. We expect women judges to differ from men in their discussion of environmental cases, where women are more likely to (1) address the interdependence and interactions between humans and nature, (2) view environmental risk as more serious, long-lasting, and detrimental, (3) prioritize an ethics of care form of justice that values sustainability and sustenance, and (4) rely on legal theories that justify and mandate government intervention and oversight to protect the environment. We expect men judges to be more likely to (1) discuss people and society as separate and autonomous from nature, especially where people (men) are viewed as superior to nature, (2) minimize environmental risk, (3) prioritize economic endeavors and emphasize potential economic loss, (4) rely on legal theories limiting government power in order to avoid environmental restrictions and oversight. Table 1 summarizes these expectations.

Table 1: Expectations of ecofeminism in judicial decision-making

Before turning to data and methods, we want to emphasize that we do not argue that women judges themselves identify with ecofeminism or view themselves as ecofeminists. Rather, we suggest that women judges, as women, have a different relationship with nature than their male counterparts because of their social and economic attribution as caregivers and providers of sustenance within and across family units and communities. These life-affirming and sustaining roles given predominantly to women make them more directly aware of their dependence on nature. Thus it is women’s unique, prescribed relationship with the environment, rather than anything ontologically^[8] inherent about womanhood, that causes this difference between men and women. In other words, it is the social and economic designation of women to these caregiving and sustenance roles that causes the expected gender differences.

We also want to note that ecofeminism acknowledges that there are differences among women and the forms of oppression women experience (Mack-Canty 2004). Women in the Global North and Global South likely differ in their relationships with nature and the environment. Similarly, women of color and indigenous women differ in their relationship with nature relative to white women. While these variations—among others such as wealth, motherhood, religion, and so on—are certainly expected to exist, we cannot evaluate these differences, since our data include only the four women on the US Supreme Court.

Data and Methods

We test our theory of ecofeminism in judicial decision-making by qualitatively analyzing dissenting opinions written by justices of the US Supreme Court in environmental cases. A qualitative analysis enables analyzing social phenomena through an interpretivist epistemology so as to allow for a deeper understanding of social behavior and structural relations (Webley 2010) and offers a more detailed, contextual analysis (Kritzer 2009). Not only are qualitative analyses capable of testing causal and descriptive inferences and producing valid results (King, Keohane, and Verba 1994), but a qualitative, linguistic approach is the most appropriate method of evaluation of ecofeminism, which is based on an epistemology emphasizing multiple, dynamic understandings of knowledge and value.

Linguistics and concept formation can draw connections between women and nature. Wittgenstein (1953) argues that concept formation can be analyzed by the way an individual uses language to discuss themselves and the world around them. In most cultures, language is critical in perpetuating a sexist-naturist dialogue that sees women and nonhuman nature as less than men (Mack-Canty 2004). Specifically, the English language promotes naturalizing and animalizing women by comparing them to certain animals or parts of nature that are already viewed to be inferior to men (Adams 1990). For example, women can be referred to as bitches, chicks, queen bees, snakes, pets, bunnies, pigs, cows, and social butterflies; however, men are usually referred to as animals that are not similarly exploited (e.g., lions, wolves, tigers, eagles). The English language also feminizes nature as Mother Nature, while many nation-states and civilizations are masculinized as Fatherlands or father states, patriotism (derived from Greek and Latin words for father), and ancestral forefathers. Several English words are applied equally to women and nature, such as fertile, virginal and untouched, and wild, where both nature and women must be controlled, guided, and dominated by man in order to properly develop into their potential value—while simultaneously offering both a reprieve and recreation for man. Hence the way we talk about ourselves and the world around us matters. Language formation and cultural formation work to perpetuate patriarchal domination of women and nature by incorporating language that feminizes nature and naturalizes women (Adams 1990). Language also harbors these conceptualizations of relationships and hierarchies that may not otherwise be directly observable.

In order to test these linguistic components of ecofeminist theory, we qualitatively analyze the language of dissenting opinions from the US Supreme Court. We use dissenting opinions for two reasons: (1) dissenting opinions are not binding law, so justices have more freedom to express themselves (Wahlbeck et al. 1999), and (2) dissenting opinions require less negotiation and compromise than majority opinion decisions, so dissents should have a more centralized voice of the author to compares women and men’s voices.^[9]

Using Westlaw, we pulled all environmental cases with dissenting opinions from 1973 to 2010. Of all environmental cases decided during this time period, there were a total of fifty-seven available dissenting opinions, with fifty dissents authored by men and the remaining seven dissents authored by women. From this population of dissents, we sought to ensure representation of all the women (as there are only seven total dissents authored by women) and selected a random sample from male-authored dissents. Of the seven women-authored dissents available, none were authored by Justice Sotomayor. Justice O’Connor had only one dissent: a short paragraph summarily agreeing with Justice Scalia in Pennsylvania v. Union Gas Co (1989),^[10] and the majority of female dissents were written by Justice Ginsburg. Justice Kagan had only one dissent as well, which was joined by Justices Ginsburg, Sotomayor, and Breyer (in Michigan v. EPA). We include this dissent, despite the possibility for influence by other justices, because it reflects a majority of women on the Court. Omitting this dissent would effectively silence Justice Kagan, as author, and the other women (and Justice Breyer) joining her. For the male-authored dissents, we selected a random sample of the fifty available dissents in Westlaw. This random sample includes dissents from Justices Stevens, Scalia, Powell, Roberts, Douglas, and Marshall.

Hence we examine a total of nine dissenting opinions authored by men and women justices.^[11] Justice Ginsburg authored two dissenting opinions, and the remaining seven dissenting opinions are authored by Justices Kagan, Scalia, Stevens, Powell, Roberts, Douglas, and Marshall (with one dissent each). The limited female-authored dissents reflect the low number of women represented on the US Supreme Court and their relatively recent appointment to the Court (with the first female justice appointed in 1981). Yet comparing their dissenting language to their male dissenting counterparts enables a preliminary evaluation of whether gender differences aligning with ecofeminism appear at the nation’s highest court.

Results

We first evaluate the dissents written by women justices, followed by qualitative analyses of dissents authored by men justices on the US Supreme Court.

Justice Elena Kagan

In Michigan, et al. v. Environmental Protection Agency, et al., 576 U.S. __ (2015), pertaining to the Environmental Protection Agency’s (EPA) regulation of power plants, Justice Kagan filed a dissenting opinion, joined by all the other women on the court (and Justice Breyer), which argues that the environmental risk was greater than that perceived by the men in the majority opinion and argues in support of governmental (agency) responsibility to maintain a safe (unpolluted) environment. Furthermore, Justice Kagan critiques the majority opinion’s car metaphor that likened the EPA to a driver who believes it is “appropriate” to buy a Ferrari but fails to account for the cost, because “he plans to think about cost later when deciding whether to upgrade the sound system” (Michigan v. EPA 2015). Justice Kagan responds by providing her own car metaphor by comparing the EPA to a driver who decides that it is “appropriate and necessary” to replace her worn-out brake pads without initially considering cost, since she is well aware that she has enough time to evaluate costs and explore different options to stay within her budget from her prior experience with replacing worn-out brake pads.

Justice Kagan’s critique of the majority’s car metaphor is a direct critique on the masculine themes found within the majority’s opinion, where she categorizes the metaphor as “witty but wholly inapt,” and reminds the majority that the issue at hand has much larger implications than buying a car. She intentionally switches the pronouns used by the majority from he to she in her own interpretation of the reasonable car purchase metaphor. Switching the metaphor from male to female, and from a luxury purchase to a necessary safety purchase, simultaneously addresses the male perception of unpolluted nature as an unnecessary luxury while firmly placing the provision of safety and reasonable decision-making within a female realm. This switch thus reaffirms female agency and decision-making as necessary, “appropriate and reasonable” lifesaving actions.

Justice Ruth Bader Ginsburg

In Donald C. Winter, Secretary of the Navy, et al. v. Natural Resources Defense Council, Inc., et al., 555 U.S. 7 (2008), pertaining to requirements for an environmental impact statement (EIS) to assess the risks and potential dangers Navy exercises could have on marine life, the dissent by Justice Ginsburg emphasizes the potential harms to marine mammals and environment when she states that “environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration—that is, irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment” (Winter v. Nat. Res. Def. Council, Inc. 2008).

Justice Ginsburg thus perceives the public interest to be one of protecting the environment and marine wildlife, rather than the continued military exercises. This affirms (feminine) environmental protections over (masculine) security priorities. Her dissent thus reflects her perception that the environmental risk is greater than perceived by the majority opinion, questions the presumption that military interests automatically outweigh environmental interests, and affirms broad use of government power to protect the environment through an injunction.

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al., 557 U.S. 261 (2009), dealing with wastewater from gold mines, Justice Ginsburg argues that the all-male majority opinion completely undermines the purpose of the Clean Water Act. In a footnote, Justice Ginsburg critiques Justice Breyer’s attempt to assuage concerns of the Court creating loopholes in environmental protection (expressed in his concurring opinion) by stating that “[d]estruction of nearly all aquatic life in a pristine lake apparently does not qualify as ‘unacceptable.’” Justice Ginsburg’s use of imagery cannot go unnoticed. Her use of the word “pristine” to describe the lake, which she argued would be perversely polluted, could be interpreted as an ecofeminist critique against the exploitation of a “pristine” lake to be used as a dumping site for waste. Furthermore, she again finds environmental risk to be greater than her male peers believe and sees environmental protection as a legitimate, necessary interest of government, such that she expresses her disdain for the majority position in both her words and tone.

Chief Justice John Roberts

In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), pertaining to the regulation of greenhouse gases, Chief Justice Roberts dissented against the majority’s stance that the EPA has authority to regulate greenhouse gases, arguing that the petitioners do not have a traceable or particular injury to have Article III standing to sue. Chief Justice Roberts begins his dissenting opinion by stating that “global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’…Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it” (Massachusetts v. EPA 2007).

Chief Justice Roberts downplays the potential risks of climate change by continuously employing the word may to condition its significant, negative effects through generating uncertainty. He also intentionally places the word crisis and the phrase “the most pressing environmental problem of our time” in quotes to signal that he does not believe these claims. Ironically, Chief Justice Robert’s focus on the global scale of the risks of climate change and the recognition that these risks (i.e., injuries) are experienced by every living being on the planet—rather than being individual and personal—are used to undermine petitioner standing and government authority to ensure environmental (and thus human) protection. These themes thus align with the masculine perspective we hypothesized, where environmental risks are undermined or underestimated and government authority is insufficient or illegitimate in efforts to protect the environment.

Justice Antonin Scalia

In Friends of the Earth, Inc., et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), dealing with the discharge of mercury into the North Tyger River in South Carolina, Justice Scalia’s dissenting opinion reflects rhetoric similar to that of Chief Justice Roberts. Justice Scalia states, “Ongoing ‘concerns’ about the environment are not enough, for ‘It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions’” (internal quotes pertain to Los Angeles v. Lyons, 461 U.S. 95 [1983]) (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. [TOC], Inc., 2000).

Justice Scalia uses linguistic tools to undermine the legitimacy of environmental concerns and questions the ability of people to demonstrate environmental injury as well as their legitimacy as enforcers of environmental laws. In every discussion of environmental concerns or environmental harms, Justice Scalia consistently places the terms concerns or harms in quotation marks, to indicate that the environmental concerns or harms asserted by Friends of the Earth, or any party asserting similar concerns, are not legitimate and not objective realities—which is reiterated in his reference to environmental harm as “subjective apprehensions” rather than demonstrable fact. Justice Scalia also implies a distinct separation between mankind and the environment by asserting that no direct, objective link can be made between the environment and litigants. Thus his dissent appears to align with our expectations that this male-centered view underestimates environmental risk or damage, perceives nature as something completely distinct and separate from human livelihood and safety, and seeks minimal government action and authority to protect the environment.

Justice John Paul Stevens

In Monsanto Co., et al. v. Geertson Seed Farms, et al., 561 U.S. 139 (2010), dealing with genetically engineered alfalfa plants, Justice Stevens places significant weight on the environmental impacts that genetically modified plants could have when gene transfer occurs with native plants, where “the environmental and economic consequences would be devastating.” Yet his concerns for the cross-contamination of alfalfa crops are mostly framed within the forecasted economic loss of farmers whose livelihoods depend on naturally occurring alfalfa crops. While this framing can be conceived as ecofeminist in the efforts to preserve sustainable agricultural techniques and protecting natural seeds, especially in the face of large transnational corporations (Mies and Shiva 2014), it can also be framed as masculine in that the value of the natural seed, as treated in Steven’s dissent, does not originate from an innate value of natural seeds or preserving traditional cultural practices. Rather the value of natural seeds is that farmers rely on them for their economic livelihood. Hence the driving factor of Steven’s dissent is not the protection of naturally occurring alfalfa (i.e., the environment itself); instead, the primary motivation for environmental protection is the protection of farmers’ economic well-being and national economic production of American agriculture. Because his focus remains primarily on human economic wealth and future national wealth, which are conceptualized as profit rather than sustenance, we consider his dissent to align with our expectations of masculine perspectives rather than ecofeminism.

Justice Lewis Powell

In Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), pertaining to the construction of the Tellico Dam in a critical habitat for the endangered snail darter, Justice Powell issued a dissenting opinion, joined by Justices Rehnquist and Blackmun, arguing that environmental concerns of endangered species should not apply when a project is completed or substantially completed. He writes, “This decision casts a long shadow over the operation of even the most important projects, serving vital needs of society and national defense, whenever it is determined that continued operation would threaten extinction of an endangered species or its habitat” (Tennessee Valley Auth. v. Hill 1978).

Here, one sees Powell’s prioritization of national defense over the environment, implying an assumption of the superiority of mankind and their military (and economic) endeavors to dominate environments, which are considered largely useless as they offer homes to only tiny, inconsequential life-forms. Justice Powell draws a dichotomy between the “grandiosity” of governmental projects and the “minuscule” environment, referring to the federal hydroelectric projects and reservoirs as “great” and “essential to the [United States’] economic health and safety.” However, when critiquing the majority’s decision, he uses a “water spider” or “amoeba” as an example of what the majority argues would be sufficient to halt the development of an infringing federal project. Justice Powell’s choice to use a water spider or amoeba is intended to categorize the environment as a minuscule barrier that is overshadowed in comparison to the “great” federal projects. Indeed, his selection of these life-forms is designed to make the majority opinion protecting the environment appear ridiculous. The dissent thus reflects the perception that humans are fundamentally distinct and separate from their environments, where the environment is most (or only) useful as a resource to develop, through which it gains value.

Justice William Douglas

In United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), dealing with environmental impact statements (EIS) on proposed changes to railroad freight rate surcharges, Justice Douglas references the value of environment as solely resources used for human activity and consumption. His concerns are thus not the protection of the environment for sustainable ecological well-being and interdependence; rather, his concerns focus on the preservation of nonrenewable resources that are used in human economies, such as wood pulp and metal ore. For example, Justice Douglas quotes the National Environmental Policy Act of 1969 (42 U.S.C. §4331 [b]) that conceptualizes nature as ensuring “safe, healthful, productive, and esthetically and culturally pleasing surroundings…and enhance[ing] the quality of renewable resources and depletable resources.” This conceptualization suggests an acknowledgment of nature in providing mankind’s health and safety, but then immediately emphasizes its value through ensuring productive human activities as resources and sites of recreation and reprieve that are culturally and sensorially pleasing to man. This context suggests the extractive nature of the perception of nature’s value, in that the value of nature is what it provides mankind. In his dissent, Justice Douglas focuses on injuries related to environmental damage in recreational areas, such as parks and picnic areas. The implication is thus that the primary value of the environment is economic (as resources for human economies) and recreational (as aesthetic human playgrounds). In sum, the language of the dissent reveals an androcentric perception of nature and its utility to mankind.

Justice Thurgood Marshall

In Chemical Manufacturers Association v. Natural Resources Defense Council, Inc., 470 U.S. 116 (1985), pertaining to EPA regulation of toxic pollutants, Justice Thurgood Marshall filed a dissenting opinion, joined by Justices O’Connor, Blackmun, and Stevens, emphasizing the environmental risks of toxins, by quoting a portion of the Congressional Record in which the bill’s Senate manager, Senator Muskie, argued that “the seriousness of the toxics problem is just beginning to be understood. New cases are reported each day of unacceptable concentrations of materials in the aquatic environment, in fish and shellfish, and even in mother’s milk” (Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc. 1985).

Justice Marshall’s decision to include this direct quote in his dissent is worth noting. The explicit reference to mother’s milk connotes the interdependent relationship between the environment and humans, where the environment is not separate or distinct from human living and well-being. Of course, this reference to motherhood and family raising could be strategic (on the part of both Senator Muskie and Justice Marshall)^[12] in that these frames are effective mediums that are politically useful; they simultaneously appear apolitical (since everyone cares for their family and children) and they are mobilizing political action based on fears of safety and protection, where women are called upon to act to protect their children and men are called upon to protect their wives and the mothers of their children. In essence, the most vulnerable and sympathetic persons are placed as the most at risk. Not to undermine the importance of mothers and children, but we do want to highlight that neither Muskie nor Marshall discusses presumably less sympathetic persons who would also be particularly vulnerable to such toxins: the poor, homeless, people of color, immigrants, and so on.

Despite this reference to the contamination of mother’s milk, however, the dissent contains little discussion that could be considered ecofeminist. Instead, Justice Marshall focuses only on the language of the Clean Water Act and congressional records detailing hearings and committee meetings related to the Act. We thus find mixed results, where the main arguments of the dissent are consistent with masculine conceptions of the environment in terms of its value for economies and recreation. However, the environmental threat is not underestimated, and there is the acknowledgment through Muskie’s quote of human interdependence with nature.

Conclusion

The linguistic analysis of justices’ written dissenting opinions provides promising insight into gender effects on environmental litigation before the US Supreme Court. Justices Ginsburg and Kagan demonstrate a clear concern with the protection of human and nonhuman beings as well as implementing ecofeminist-aligned language within their opinions. Both Justice Ginsburg and Justice Kagan continuously emphasize the harms associated with environmental destruction, and they do not presume that human interests are divorced from, or superior to, environmental interests—even in national security contexts. They not only use explicit legal argumentation to refute majority positions, but their intentional use of tone and diction to convey strong convictions and more subtle redefining is noteworthy.

Justice Ginsburg particularly emphasizes risks specific to the environment and nonhuman life (e.g., advocating for the protection of marine mammals in Winter), and she promotes the use of court injunctions as remedies to avoid further destruction or harm to the environment. Justice Kagan focused primarily on the interdependence of humans and the environment, particularly focusing on the connections between environmental harm and harm to human society as a result. In Michigan v. EPA, Justice Kagan cited the potential risks associated with air pollutants, particularly to asthmatic children. Additionally, Justice Kagan’s critique of the majority’s car metaphor could be interpreted as a feminist critique of the majority’s hypermasculine metaphors when discussing the environment. Overall, Justices Ginsburg and Kagan clearly prioritized environmental protection for the sake of protecting the environment, as well as protecting human society by emphasizing society’s interdependence with the environment. In addition, their conception of protecting human society stems from family/community well-being and health rather than economic profits.

Compared to Justice Ginsburg and Justice Kagan, male justices demonstrated significantly different concerns when discussing the environment—even when they agreed on similar outcomes of environmental protection. Specifically, male judges often dissent in matters where Article III standing was at issue, or whether courts have legitimate authority to intervene in environmental matters (i.e., issuing injunctions), where men were more likely to use legal procedures to limit government authority in regulating or protecting the environment. In addition, the language of these male-authored dissents largely conforms to our expectations of masculine views of nature as distinct and inferior to human interests and activities, as well as perceptions that underestimate or question the severity or existence of environmental threat. For example, Justice Scalia was not convinced that environmental harms could be connected to the petitioners in any justiciable way. Chief Justice Roberts also emphasized the lack of standing when discussing the harms of climate change.

Male justices often questioned the redressability of environmental harms, particularly through court injunctions. Justice Powell argued that the US District Court in Tennessee Valley Authority abused its discretion by issuing an injunction that halted the construction of the Tellico Dam in order to save the snail darter. Justice Powell based his argument on the grandiosity of US federal projects, such as the Tellico Dam, and emphasized the potential economic growth that would have resulted if the Tellico Dam had reached completion. Chief Justice Roberts continuously stressed the limitations of the US government and judicial system in redressing any sort of environmental harm associated with rising temperatures as a result of greenhouse gases.

Furthermore, even when male justices are arguing for environmental protection, their language reveals androcentric values that prioritize economic interests and recreational use, rather than viewing nature as necessary and symbiotic with the well-being and survival of humankind. Justice Stevens and Justice Douglas both view the environment as valuable due to the economic and recreational resources it provides to humankind. Justice Douglas is primarily concerned with injuries related to environmental damage in recreational areas, and Justice Stevens prioritizes environmental protection as a mode for economic production.

In sum, while interesting variation appears across the male justices—and even within some dissents, such as those of Justice Marshall—these results are consistent with the expectations implied by ecofeminism. The language of dissenting opinions reveals gender differences in how men and women relate to, and place themselves in relation to, nature and the environment. Even with the limited number of women on the US Supreme Court, the homogenizing effects of law school and legal careers (Guinier et al. 1994; Kritzer and Uhlman 1977), and the constraints imposed by law in making judicial decisions, we find evidence that women judges are more likely to view people as interdependent and reliant upon nature for survival and well-being, more likely to find inherent value in nonhuman beings, more likely to take environmental risks seriously, more likely to prioritize health and sustenance as valuable common goods provided by nature, and more likely to find legitimate government authority to regulate and intervene to protect nature. On the other hand, men judges are more likely to view humans and civilization as distinct from and superior to nature, more likely to minimize or question environmental risks, and more likely to question government authority to protect the environment. Even the men judges who seek court outcomes protecting the environment tend to prioritize human economies and business profits and view nature primarily as resources to develop economic activities.

Hence the addition of women onto courts not only increases court legitimacy via descriptive representation but can fundamentally transform the law (Maule 2000) by restructuring the process of solving moral dilemmas, altering agendas (Thomas 1994), integrating women’s experiences and recognizing power (im)balances (Binion 1991), and supporting social values rather than assuming that individuals exist separate from society (West 1988). This transformation occurs not just within cases pertaining to traditional “women’s issues,” but forms a substantively different set of decision-making processes that can complement the masculine forms already institutionalized within our political and legal institutions to generate a better future for everyone, human and nonhuman alike.

References

Adams, Carol J. 1990. The Sexual Politics of Meat: A Feminist-Vegetarian Critical Theory. New York: Continuum.

Baptist, Edward E. 2014. The Half Has Never Been Told: Slavery and the Making of American Capitalism. Basic Books.

Binion, Gayle. 1991. “Toward a Feminist Regrounding of Constitutional Law.” Social Science Quarterly 72 (2): 207–20.

Boyd, Christina L., Lee Epstein, and Andrew D. Martin. 2010. “Untangling the Casual Effects of Sex on Judging.” American Journal of Political Science 54 (2): 389–411.

Curtin, Deane. 1991. “Toward an Ecological Ethic of Care.” Hypatia 6 (1): 60–74.

Davis, Sue. 1986. “The Impact of President Carter’s Judicial Selection Reforms: A Voting Analysis of the United States Courts of Appeals.” American Politics Quarterly 14 (4): 328–44.

Dunbar-Ortiz, Roxanne. 2015. An Indigenous Peoples’ History of the United States. Boston: Beacon.

Gilligan, Carol. 1982. In a Different Voice: Psychological Theory and Women’s Development. Cambridge, MA: Harvard University Press.

Gottschall, Jon. 1983. “Carter’s Judicial Appointments: The Influence of Affirmative Action and Merit Selection in Voting on the US Court of Appeals.” Judicature 67:165–73.

Gruen, Lori. 1992. “Facing Death and Practicing Grief.” In Ecofeminism: Feminist Intersections with Other Animals & the Earth, edited by Carol J. Adams and Lori Gruen. New York: Bloomsbury.

Gruhl, John, Cassia Spohn, and Susan Welch. 1981. “Women as Policy Makers: The Case of Trial Judges.” American Journal of Political Science 25 (2): 308–22.

Gryski, Gerard, Eleanor C. Main, and William J. Dixon. 1986. “Models of State High Court Decision Making in Sex Discrimination Cases.” Journal of Politics 48 (1): 143–55.

Guinier, Lani, Michelle Fine, Jane Balin, Ann Bartow, and Deborah Lee Stachel. 1994. “Becoming Gentlemen: Women’s Experiences at One Ivy League Law School.” University of Pennsylvania Law Review 143 (1): 1–110.

Haire, Susan B., and Laura P. Moyer. 2015. Diversity Matters: Judicial Policy Making in the U.S. Courts of Appeals. Charlottesville: University of Virginia Press.

King, Gary, Robert Keohane, and Sidney Verba. 1994. Designing Social Inquiry: Scientific Inference in Qualitative Research. Princeton, NJ: Princeton University Press.

Kritzer, Herbert M. 2009. “Conclusion: ‘Research Is a Messy Business’: An Archeology of the Craft of Socio-Legal Research.” In Conducting Law and Society Research: Reflections on Methods and Practices, edited by S. Halliday and P. Schmidt, 264–85. New York: Cambridge University Press.

Kritzer, Herbert M., and Thomas M. Uhlman. 1977. “Sisterhood in the Courtroom: Sex of Judge and Defendant in Criminal Case Disposition.” Social Science Journal 14: 77–88.

Lahar, Stephanie. 1991. “Ecofeminist Theory and Grassroots Politics.” Hypatia 6 (1): 28–45.

MacGregor, Sherilyn. 2004. “From Care to Citizenship: Calling Ecofeminism Back to Politics.” Ethics and the Environment 9 (1): 56–84.

Mack-Canty, Colleen. 2004. “Third-Wave Feminism and the Need to Reweave the Nature/Culture Duality.” NWSA Journal 16 (3): 154–79.

Maule, Linda S. 2000. “A Different Voice: The Feminine Jurisprudence of the Minnesota State Supreme Court.” Buffalo Women’s Journal 9 (17): 295–316.

Merchant, Carolyn. 1996. Earthcare: Women and the Environment. New York: Routledge.

Mies, Maria, and Vandana Shiva. 2014. Ecofeminism. 2nd ed. London: Zed Books.

Reséndez, Andres. 2016. The Other Slavery: The Uncovered Story of Indian Enslavement in America. Boston: Houghton Mifflin Harcourt.

Salleh, Ariel. 2017. Ecofeminism as Politics: Nature, Marx and the Postmodern. 2nd ed. London: Zed.

Segal, Jennifer. 2000. “Representative Decision Making on the Federal Bench: Clinton’s District Court Appointees.” Political Research Quarterly 53 (1): 137–50.

Sherry, Suzanna. 1986. “Civic Virtue and the Feminine Voice in Constitutional Adjudication.” Virginia Law Review 72: 543–616.

Shiva, Vandana. 1989. Staying Alive: Women, Ecology, and Development. London: Zed Books.

Songer, Donald R., Sue Davis, and Susan Haire. 1994. “A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals.” Journal of Politics 56 (2): 425–39.

Spiegel, Marjorie. 1996. The Dreaded Comparison: Human and Animal Slavery. London: Mirror Books.

Thomas, Sue. 1994. How Women Legislate. Oxford: Oxford University Press.

Tuck, Eve, and K. Wayne Yang. 2012. “Decolonization is Not a Metaphor.” Decolonization: Indigeneity, Education & Society 1 (1): 1–40.

Wahlbeck, Paul J., James F. Spriggs II, and Forrest Maltzman. 1999. “The Politics of Dissents and Concurrences on the U.S. Supreme Court.” American Politics Quarterly 27 (4): 488–514.

Walker, Thomas G., and Deborah J. Barrow. 1985. “The Diversification of the Federal Bench: Policy and Process Ramifications.” Journal of Politics 47 (2): 596–617.

Webley, Lisa. 2010. “Qualitative Approaches to Empirical Legal Research.” In Oxford Handbook of Empirical Legal Research, edited by Peter Cane and Herbert M. Kritzer, 927–50. Oxford: Oxford University Press.

West, Robin. 1988. “Jurisprudence and Gender.” University of Chicago Law Review 55 (1): 1–72.

Wittgenstein, Ludwig. 1953. Philosophical Investigations. Hoboken, NJ: Wiley-Blackwell.

Student Activities: Critical Reflection

1. How do you relate and interact with nature and the environment? Identify how you interact with nature, environmental issues, and life-affirming processes such as caregiving, parenting, homemaking, health, and so on in your daily life.
2. How does your interaction with nature impact you?
3. How do your actions impact the environment?
4. In some countries, the environment has legal personality, and certain environmental entities have legal rights and protections in the same way people have status as legal persons (generating rights, protections, privileges, and responsibilities). For example, the Colombian Constitutional Court declared that the Atrato River Basin and Amazon River have legal rights to “protection, conservation, maintenance, and restoration.” In New Zealand, the Te Urewera National Park was declared an environmental legal entity, as were the Whanganui River and Mount Taranaki. This means that these environmental entities can “appear before a court” through legal guardians in order to ensure their protection from pollution, extraction, and exploitation. Do you think the environment (or parts of the environment) should have legal personality(s)? What impact would legal personality have on the environment and on people seeking to use natural resources for economic growth, employment, national security, and tourism.

Appendix

Dissenting Opinion by Justice O’Connor, from Westlaw

Pennsylvania v. Union Gas Co., 491 U.S. 1, 57, 109 S. Ct. 2273, 2304, 105 L. Ed. 2d 1 (1989), overruled by Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)

Justice O’CONNOR, dissenting.

I agree with Justice SCALIA that a faithful interpretation of the Eleventh Amendment embodies a concept of state sovereignty which limits the power of Congress to abrogate States’ immunity when acting pursuant to the Commerce Clause. But that view does not command a majority of the Court, thus necessitating an inquiry whether Congress intended in CERCLA, 42 U.S.C. § 9601 et seq., and SARA, Pub.L. 99–499, 100 Stat. 1613, to abrogate the States’ Eleventh Amendment immunity. On that question, I join Part I of Justice WHITE’s opinion. I also join Parts II, III, and IV of Justice SCALIA’s opinion concurring in part and dissenting in part.